International Construction Law Review
THE SUBCONTRACTOR’S DIRECT CLAIM IN INTERNATIONAL BUSINESS LAW
J FLORIAN PULKOWSKI
Rechtsassessor, University of Heidelberg
I. INTRODUCTION
1. The importance of subcontracts in international business law
Subcontracts are of special importance in today’s international business law, especially in construction law.1
Big construction firms or architects’ practices enter into contracts to construct public buildings, private premises or even completely new production sites for undertakings. To perform their contractual obligations, they usually have to rely on the special technological or financial knowledge of other undertakings.2
Due to economies of scale and special technological knowledge, certain parts of the construction processes can be performed more cost efficiently by specialised undertakings. This often leads to the result that obligations of a main contractor are performed by several (usually, but not necessarily, small) subcontractors.3
This bears specific judicial risks for the subcontractors involved. The subcontractors’ work is an integral part of a project which they have very limited capability or opportunity to oversee. They usually lack the power to influence the performance of the whole project.
Another economic factor must be mentioned: the globalisation of economic markets.4
Nowadays, construction works are, especially, based no longer on one single contract but on several (cross-border) contracts.5
Due to increasingly protective labour statutes and almost unified labour conditions within the Member States of the EU, subcontractors, rather than employees, from “low cost countries” are the first choice. Mandatory statutes in the
1 See Britton, “Choice of Law in Construction Contracts: the view from England” [2002] ICLR 242.
2 van Houtte, “International Subcontracting” [1991] ICLR 301; Périnet-Marquet, “Subcontracting in French Law” [1991] ICLR 315.
3 van Deventer, Construction Contracts
(London, 1993), at para. 4.62.
4 See Kobrin, “The Architecture of Globalisation: State Sovereignty in a Networked Global Economy”, in John H. Dunning (Ed.), Governments, Globalization, and International Business
(Oxford, 1997), pp. 146–154; Giddens, The Third Way
(Cambridge, 1998), pp. 28–29.
5 See the decision of the German BGH
of 25 February 1999, VII ZR 408/97, [2001] IPRax 331 as well as BGH
, 14 January 1999, VII ZR 19/98, [2001] IPRax 336 and Pulkowski, “Internationale Zuständigkeit und anwendbares Recht bei Streitigkeiten aus grenzüberschreitenden Bauverträgen” [2001] IPRax 306.
[2004
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