International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
The first contribution in the first issue for 2009 is from Dr Nael G Bunni who very kindly made available to us a revision of a recent public lecture in Ireland on “The Four Criteria of Risk Allocation in Construction Contracts”, delivered in his capacity of Professor in Construction Law and Contract Administration at Trinity College, Dublin. In this paper (at page 4) Dr Bunni develops a theme discussed in his published work but now refined as a proposition that there are four principles which should govern the allocation of risk: which party can best control the risk and/or its associated consequences; which party can best foresee the risk; which party can best bear that risk; and which party ultimately most benefits or suffers when the risk eventuates? We think many would agree with Dr Bunni that arbitral tribunals or courts use similar approaches to allocate risk, when the contract does not provide a clear enough indication, although, in reality unless the contract is very rudimentary it will indicate how a judgement could be formed as to, for example, which party can best control the risk and/or its associated consequences. A value judgment is also required by “best”, which must take one back to the contract. Dr Bunni considers a range of practical instances taken, in the main, from published cases or awards which illustrate the application of the principles. This should help courts and arbitrators who decide issues about the allocation of risk. Dr Bunni’s selection includes situations which are not directly concerned with the construction contract but which exemplify a common risk. He discusses the difficult decision of the English Court of Appeal in Eckersley v. Binnie, a decision that is understandable as the product of a tragedy. However, the dissenting judgment of Lord Justice Bingham (as he then was) is thought to approach and answer the legal issues more satisfactorily.
Our next contribution is from Dr Götz-Sebastian Hök of the firm of Dr H ok, Steiglmeier & Collegen, Berlin, who has already written for us and has been well received. Dr Hök covers the “Relationship between FIDIC Conditions and Public Procurement Law—Reliability of Tender Documents (at page 23). In a most interesting and wide-ranging paper Dr Hök looks at a number of laws relating to public procurement and compares them with the provisions of and practice under the FIDIC Conditions (Red Book) to examine where conflicts arise. He therefore discusses subjects such as dispute resolution, and, from various aspects, the effect of pre- and post-contract information and reliance on pre-contract statements. His thoughtful and well-researched article deserves detailed study.
We then have a stimulating paper (at page 57) from Professor Doug Jones, Co-Editor of this Review and partner in Clayton Utz, Sydney. Like our first contribution this stems from a lecture, but in London, posing the question: “Can Prevention be Cured by Time Bars?” It concerned a subject of some debate in the common law world about the tension between preserving a right to damages for delay when there is delay (especially if the delay is caused by or is the risk of the owner) and ensuring that the contractor gives timely notice of delays, with sanctions if not given. The subject is topical since there are a number of judicial decisions in the United Kingdom and Australia, not all congruent with each other. Professor Jones’s discussion is, however, not confined to the common law world. He refers right at the beginning to Article 7.1.2 of the UNIDROIT principles. Professor Jones proposes that it is time to look again at the consequences of the prevention
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