i-law

International Construction Law Review

INTRODUCTION

HUMPHREY LLOYD

DOUGLAS S JONES

This issue begins with an article with the intriguing title “What Lies Beneath” (page 394). The author, Julian Bailey of CMS Cameron McKenna LLP, London, does not use an interrogative since he writes about the allocation of risk for adverse site conditions, primarily ground conditions. His paper has four sections: a discussion of the general position in law where there is no contractual provision; the allocation of risk where there is contractual provision; the effect on risk allocation if information given by the owner turns out to be erroneous or misleading; and matters affecting the entitlement of the contractor, including the position if conditions are so extreme as possibly to vitiate the contract itself. The author’s discussion is not confined to English law as he considers decisions in the United States and decisions and laws in other countries. Mr Bailey’s conclusion is that the parties ought to set out the allocation of risk in the contract and to do so clearly since, if the position is unclear, the contractor will usually be taken to have assumed the risk. He also suggests that, before entering into the contract, whilst the parties might focus on the investigations which ought to be conducted and on disclosing information obtained (primarily by the owner but presumably also by the contractor), disclosure needs to be accompanied by effective disclaimers for otherwise a party might be held to warrant the information.
The next article takes us to South Africa (page 415). Peter Dzakula, who is with K & L Gates in London, has recently been in South Africa with a colleague for training sessions for South African Municipal Service Partnerships. A MSP is a contractual relationship where an external organisation takes responsibility for all or part of the delivery of a municipal service. It differs from ordinary procurement procedures since the MSP acts as the delegate for the municipality. MSP contracts vary in length from a year to 20 or 30 years under BOT arrangements. The author discusses the legislation and how an MSP is created, once a municipality has established an integrated development plan which leads to the preparation of a feasibility study for the proposed MSP project. The contribution thereafter sets out how an MSP is appointed and what the responsibilities and liabilities of an MSP might be, particularly in relation to risk allocation.
Next, Dr Hassan Ali Radhi of Manama, Bahrain, writes on “Public Interest and Arbitration in Construction Contracts in Middle Eastern Arab Countries” (page 424). The article is the result of a paper delivered by the author at a conference organised by the ICC in Dubai in April this year. He uses three heads: religious and philosophical obstacles; legislative obstacles and judicial obstacles. The author believes that the first head does not create many problems. For example, he considers that today there should be no problem if an arbitrator were not a Muslim. Under the second head the author considers the question of the impact of administrative law
[2007
The International Construction Law Review

392

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