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International Construction Law Review

INTRODUCTION

DOUGLAS S JONES HUMPHREY LLOYD

This issue of The International Construction Law Review begins with an article from Tony Marshall, of Hogan Lovells International LLP, on the Engineering Advancement Association of Japan’s revised Process Plant Model Form of Contract (at page 138). This has been a long-term endeavour of international impact. Marshall details some of the key features of the Process Plant form which are carried over from the first edition and examines the revisions introduced into the new 2010 edition, including the expansion of the entire agreement clause, alterations to the dispute resolution provision, and removal of the provisions for nominated subcontractors, amongst other amendments. Long-standing readers will recall that in 1987 we covered the arrival of the ENAA form and that we have tracked its evolution over the years—as can be seen from the list at the end of the article. For newer readers Tony Marshall has, however, helpfully included a brief overview of the ENAA’s other model forms. His article also serves as a useful introduction to the ENAA model forms of contract. From the beginning the ENAA has prudently sought and received advice on the drafting of the conditions from highly regarded legal advisers, including the author of this excellent commentary.
The next article is contributed by Dr Franco Mastrandrea and is about “Apportionment in the Evaluation of Construction Delays” (page 172). Mastrandrea explores the variety of attribution methods available to tribunals to resolve the extent of responsibility for concurrent construction delays, from Time Impact Analysis to “collapsed-as-built” methodology and apportionment. He considers the differing treatment of apportionment in the United States and United Kingdom jurisdictions, in particular, the general ability of an employer in the UK to rely on the contractor’s prima facie failure to comply with an obligation to finish by a due contractual date as opposed to the need in the US to show clear segregation of responsibility in order to recover an apportionment, but proposes that such disparate approaches may be harmonised. Mastrandrea concludes by suggesting a series of principles to assist in determining responsibility for concurrent construction delays.
Following on from this, Andrew Chew and Geoff Wood of Baker & McKenzie, Sydney, provide an update on “The Tendering Landscape in Australia” (page 188). Tendering procedures can create legal rights and obligations. Last year R Bruce Reynolds and Sharon C Vogel of Borden Ladner Gervais LLP, Toronto, wrote in this Review about the position in Canada following the decision of its Supreme Court in Tercon Contractors Ltd v. British Columbia (Transportation and Highways)—see their article at [2010] ICLR 284. Andrew Chew and Geoff Wood’s paper provides a conspectus of the legal issues and recent developments in Australia. It looks at the legislative framework for procurement in Australia and the contractual
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