International Construction Law Review
INTRODUCTION
DOUGLAS S JONES HUMPHREY LLOYD
This issue sees contributions touching a variety of international construction law and arbitration topics. It begins with an article from John Uff and Alexander Uff on “The Availability of Treaty Arbitration in Construction” (at page 402). The authors discuss the tendency for parties who are unable to recover directly under contract to mount a case under a Bilateral Investment Treaty (BIT) or the like, and examine how far this practice has been successful. They also provide instances of where it will not succeed and of its limitations. It is an interesting and developing area, albeit of last resort. We are grateful to the authors for this introduction to a topic to which we intend to return.
The next contribution comes from Martin Hirst and is about “Termination for Convenience Clauses” (page 419). The paper has the sub-title “A Shield or a Sword in Times of Economic Downturn?”. Mr Hirst has an extensive background in the construction industry and was recently senior legal adviser to Mott MacDonald Ltd. He considers the position of parties facing (or being faced by) the question of whether or not a contract can be or may be terminated as a matter of convenience. His article reviews such case law as there is in the United Kingdom on termination and sets the scene for considering the position in other countries—Australia, the United States, Switzerland and the United Arab Emirates. Mr Hirst concludes, amongst other things, that, even where there is a contractual right to terminate for cause, trivial breaches will not usually justify its use. He suggests that termination for convenience clauses are not a panacea for all ills and it would be better to list the circumstances in which such a power might validly be used.
We then turn to Egypt. As readers are aware, the Egyptian Parliament passed a law this year to legitimise Public Private Partnerships. Mr Said Hanafi (our Correspondent for Egypt) and Mr Khaled El Dardiry set out with care and in some detail the background to the new law and its practical implications under the heading “PPPs in Egypt” (at page 432). They cover a new project whose investment costs may range between $US150 to $US200m. The authors’ full contribution is pertinent since other countries in the region are already using or considering the use of PPPs (e.g., Syria and Libya which are thinking about a similar PPP law and Lebanon which already has PPPs in certain sectors). The Egyptian law has certain difficulties. For example, the authors believe that a contract made under its aegis may still be classified as “an administrative contract” and thus disputes may not necessarily be resolved by private arbitration.
We next move to Asia. Our correspondent in Singapore, Professor Philip Chan Chuen Fye, and a colleague at the National University of Singapore, Professor Asanga Gunawansa, pose the interesting question: “Is it the Correct Time for an ASEAN Standard Form of Building and Construction
The International Construction Law Review [2010
400