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International Construction Law Review

BASIC CHOICES IN THE ALLOCATION AND MANAGEMENT OF RISK

PROFESSOR PHILLIP CAPPER1

Partner, Lovells

My task is in two parts. I have been asked first to react, at the outset of the conference, to Mr Grove’s Report and some of the issues that arise under it, especially on his philosophies of risk allocation. I do this also by seeking to bring together some of the themes in the papers which the other speakers have prepared. Then, my second contribution is to return to react to the points as they have actually arisen during the conference. Throughout I hope that I shall thereby provoke questions and further thought.

PART I

Questions from experience

The questions that I wish to provoke will partly be answered in the other papers. Here let us highlight some of the central questions. To get to those, one may start with the philosophy expressed in Mr Grove’s Report and the approach he adopted to the whole question of risk allocation and risk management. I would like to suggest that one could be more radical, and we will have to consider just how radical one can be in this context. To justify some of the radical questions, I will take a look, as Mr Grove did, at some of the international trends that seem to me to be pressing on the construction industry worldwide and in Hong Kong in particular.
What I have to say is not academic. It is informed by direct experience of projects internationally over the last decade or so. It may be objected that somebody coming from England who happens to be a lawyer does not have much to tell Hong Kong, and still less tell the non-lawyer engineering, surveying, and contracting community in Hong Kong. I raise the questions not just as an English lawyer but as one who has been involved in many projects, some of which had gone badly wrong—I hasten to say, before my involvement!

The timing of the Grove review: developments since early 1998

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