International Construction Law Review
THE LAW GOVERNING AN INTERNATIONAL CONSTRUCTION CONTRACT
PROFESSOR R H CHRISTIE1
QC, MA, LLB (Cantab), FCIArb, FAArb University of Cape Town
Introduction
This topic was the subject of two articles in the first volume of this journal,2
and two subsequent articles give valuable advice to English construction practitioners on avoiding pitfalls surrounding the law applicable to an international construction contract.3
The object of the present article is to go into less detail but to give an overview of the method of identifying the law governing an international construction contract, not only in the United Kingdom but in the common law countries of the Commonwealth.
There are very few cases or arbitral awards (even among the ICC published awards) on choice of law governing construction contracts, so cases on other types of contract such as shipping contracts will be referred to where they establish principles that are as applicable to construction contracts as to any other contracts.
A question of private international law
In every international construction contract it is necessary to apply the rules of private international law (conflict of laws) in order to identify the substantive law governing the contract. For the purposes of this article it is assumed that the private international law rules of the United Kingdom or a country in the British Commonwealth will be applied, because it would be an immense undertaking to review the rules of every country in the world.
However, it must not be overlooked that a court or arbitration tribunal hearing an international construction dispute must decide which country’s private international law rules to apply. A court will of course have to apply
1 Assisted by Offah Obale, LLB (Buea, Cameroon), LLM (Cape Town).
2 Wiegand, “The Applicable Substantive Law in the Case of International Contracts” [1983–84] ICLR 133; Counter, “The Law Applicable to International Construction Contracts” [1983–84] ICLR 309.
3 Britton, “Choice of Law in Construction Contracts: the View from England” [2002] ICLR 242; Britton, “Oxalic Acid and the Applicable Law: the Rome Convention and Construction” [2003] ICLR 381.
[2007
The International Construction Law Review
344