Senior Lecturer in Law, Robert Gordon University, Aberdeen

From a lawyer’s point of view, one of the key issues around collaboration remains unresolved: what does “collaboration” actually mean4 and can that meaning be captured in a contract’s terms? Much of the discussion on collaboration focuses on techniques and practices which align parties’ commercial approaches such as partnering and pain/gain share arrangements. Despite this, in the construction industry, parties’ underlying interests will still often push their fundamental objectives in opposite directions: the person paying for the work will want to spend as little as possible and the person being paid for the work will want to make as much money as they can. In UK construction, as indicated by the Latham report, this traditionally led to adversarial and inefficient contract practices.

This paper examines one mechanism in which “collaboration” might be contracted for in circumstances where there is no change to the traditional commercial structure and incentives of the parties but where, despite this, there is an attempt to work in a more collaborative way.