International Construction Law Review
INTRODUCTION
Chantal-Aimée Doerries
Douglas S Jones
We start this final edition of 2015 with the second part of the joint article by Dr Götz-Sebastian Hök and Siobhan Fahey “Observations on the FIDIC Construction Subcontract 2011” (at page 366). This continuation of their detailed examination of the 2011 Subcontract for Construction reviews issues, and provides useful reference to relevant cases, relating to the indemnity provisions, the relevance of stipulation pour autrui, the rights and obligations under the main contract and those under the subcontract, as well as remeasurement and evaluation change in quantities, payment under subcontract, and claims under the subcontract. Hök and Fahey conclude by commenting on the FIDIC subcontract disputes clause. In this context the Persero case continues to generate debate, and we look forward to a paper on the recent Singapore Court of Appeal decision in Persero in the upcoming ICLR.
Good faith and its application in the context of construction contracts remains a topical issue. Readers of the ICLR will recall Peter Rosher’s contribution in the last edition of the ICLR ([2015] ICLR 302), examining the application of good faith under French law and seeking to dispel the common misconception that an all embracing concept of good faith can be applied to cure what a tribunal considers to be unfair, even where this would go beyond the underlying contract. We return to the topic of good faith in this current edition with the second and third papers, which arise out of the recent conference of the Anglo-German Construction Law Platform held in Frankfurt am Main, Germany earlier this year, where the topic for discussion was “Good faith under German and English construction law – does reality reflect the ideal?”
Professor David Mosey’s “Good faith in English construction law – what does it mean, and does it matter?” is the first of the two Anglo-German Construction Law Platform contributions included in this edition (at page 392). It examines the English court’s approach to an express, or implied, obligation to act in “good faith” and whether, with particular emphasis on the construction sector, there are other ways of achieving the same objectives as those frequently intended by a good faith obligation. Of particular interest in Mosey’s commentary on the relevance or potential relevance of good faith to long term relational contracts and also to collaborative contracts. He concludes where clear agreed collaborative processes are set out (ie not merely a stated set of shared values) express good faith obligations or their equivalent can encourage the parties to operate collaborative processes with honesty, fairness and reasonableness. A paper considering the German law relating to good faith, also arising from the Anglo-German Construction Law Platform conference, will be included in a future edition of the ICLR.
The second of the two Anglo-German Construction Law Platform contributions is a joint paper by Dr jur Bastian Fuchs and Shy Jackson,
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