International Construction Law Review
INTRODUCTION
DOUGLAS S JONES HUMPHREY LLOYD
This issue of The International Construction Law Review begins with an article contributed by Andrew Chew and David Storr of Mallesons Stephen Jaques in Sydney, which continues the theme of the effects of the global financial crisis in considering the effect of the economic downturn on PPPs (at page 4). The authors start with a discussion of direct user fees for toll-road projects and the impact caused by debt and equity funding difficulties on this traditional form of revenue. They go on to explore alternative payment mechanisms used in Europe and the United States including shadow tolling and availability payments. The article closes with a discussion of options for government assistance, concluding that alternative funding models are likely to increasingly feature in Australian toll road projects in coming years, regardless of any policy decisions by government.
Commencing at page 16, Dr Stéphanie van Gulijk of Tilburg University in The Netherlands writes about European Architect Law in an article adapted from her doctoral dissertation which was reviewed in this Review last year ([2009] ICLR 388). Van Gulijk identifies two sources of legal and economic tension in European architect law; the effect of regulation of the client-architect relationship on alternative contracting models and the architect’s struggle with high liability risks. She describes the position of architects in the Netherlands, Belgium, France, Germany and England and draws comparisons between these five EU countries. She then applies legal and economic theory in order to propose solutions to alleviate the tensions identified and to contribute to the ongoing debate on a new design for European architect law.
The next two articles provide an insight into the new FIDIC Conditions of Contract for Design, Build and Operate Projects, also known as the Gold Book. Readers will recall the introductory article to these Conditions by Samantha Landsberry: “FIDIC Design Build Operate—Glitter or Gold” [2008] ICLR 156. This type of contract is unusual and is as yet not widely used. It is a long-term contract, in contrast to the other forms published by FIDIC. However, FIDIC has chosen to build on the existing Yellow Form by adding to it (bolting on to it) additional provisions to cover the “operation” aspect of the form. Both articles in the present issue draw further attention to the difficulties that have thereby been created. On the other hand, some improvements have been made to the standard conditions, e.g., clause 20.7 is now a little clearer although, regrettably, there is still no explicit sanction for non-compliance with the decision of a Dispute Board, such as, obviously, an express right in clauses 15 and 16 to terminate the contract.
The first article (at page 36) is by Axel-Volkmar Jaeger, past Chairman of the FIDIC Contracts Committee and a member of the DBO Task Group, and Dr Götz-Sebastian Hök. This article provides an in-depth examination of the FIDIC Gold Book. It outlines the basics of the Gold Book, including
The International Construction Law Review [2010
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