International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
The second issue of the International Construction Law Review for 2009 begins with an article by Marwan Sakr, one of the managing partners in Hennaoui & Sakr, Beirut (page 146). In this article on “Turnkey Contracting under the ICC Model Contract for Major Projects: A Middle Eastern Law Perspective”, Mr Sakr explores different aspects of the recent ICC Model Turnkey Contract and the conflicting nature of Arab legal systems that may override contractual provisions to which the parties have agreed. Mr Sakr contrasts different sources of Arab law that stem from either French law or Islamic Sharia influence and expounds how these different Arab legal systems may bring different outcomes for certain contractual situations depending on the jurisdiction. As his paper develops, Mr Sakr notes that under the principles of Sharia it is not possible to contract out of certain legislation, whereas the position under French law is not as strict. Mr Sakr emphasises the importance of understanding the local laws which affect any contractual arrangements as they “may hide some surprises for both parties”. In short, Mr Sakr concludes that although the ICC Model Turnkey Contract is intended to promote flexibility and balance, there may be some shortfalls that arise given its incompatibility with the laws of most Arab Middle East jurisdictions. In the next issue there will be another article on this new form.
Our second article, by Troy L Harris of King & Spalding, Atlanta, USA, entitled “Disclosure of Electronic Documents: The Issues and Guidelines in International Construction Arbitration” (page 161), discusses a question that has attracted much attention recently. Harris considers the appropriateness of processes for the exchange of electronically stored information (ESI), noting that this procedure depends largely on the context of the substantive claims in the dispute. Harris explains that guidance as to the proper scope of ESI disclosure is beginning to emerge, which will enable parties (and tribunals) to understand this contentious area of law better. He recognises that the disclosure of electronic documents may cause some procedural issues; however, he argues that these issues are manageable and should not threaten to undermine arbitration as the preferred dispute resolution mechanism in international projects.
This is followed by an interesting paper by Cecilia Vidigal Monteiro de Barros of Xavier Bernardes Braganca, São Paulo (page 180), our Correspondent for Brazil. Vidigal’s article “PPPs in Brazil” highlights the “windows of opportunity” as well as the challenges faced by private investors and the Government with respect to infrastructure investment. She explains that while Brazil needs infrastructure investments to stimulate growth, the challenge for the Brazilian Government is to eliminate the perception of political and credit exchange risks. She goes on to discuss ways in which the Government has taken risk-mitigation measures by
[2009
The International Construction Law Review
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