International Construction Law Review
CONSTRUCTION LAW IN SOUTH AMERICA: KEY TENDENCIES AND POINTS FOR CONSIDERATION
ALEXANDRE AROEIRA SALLES AND FRANCISCO FREITAS DE MELO FRANCO FERREIRA
Founding Partner and Partner, Aroeira Salles Advogados1
I. INTRODUCTION
This paper provides an overview of some key areas for consideration in relation to construction law in South America with a particular focus on how construction contracts are regulated and the use of standard contracts. The specific situation in Brazil is also considered, being one of the key South American construction markets, with an explanation of the development of Brazilian law generally, how construction contracts are regulated in Brazil and finally the use of FIDIC standard contracts in Brazil with some specific points of attention.
When considering South America, it should be remembered that it is made up of 12 sovereign states (Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guiana, Paraguay, Peru, Suriname, Uruguay and Venezuela) as well as French Guiana and the Falkland Islands. South American countries have a strong civil law tradition, as a result of Portuguese and Spanish colonisation, but it is important to remember that each country has a specific legal and judicial system with its own historical, political, economic and social background.
II. CONSTRUCTION LAW IN SOUTH AMERICA
Regarding the regulation of construction contracts in South America, there can be considered to be two main tendencies. Some countries, such as Brazil,2 Argentina3 and Peru,4 dedicate a chapter of their Civil
1 The views expressed herein are those of the authors and not necessarily those of the law firm or organisation with which they are affiliated. The authors are grateful to Silvia Lage and John Oyama, their colleagues at Aroeira Salles Advogados, for their comments on this paper in draft. However, only the authors are responsible for its contents.
2 Federative Republic of Brazil. Brazilian Civil Code. Law no 10.406. Chapter VIII. (2002) Brasília: The Presidency of the Republic of Brazil. Available from – http://www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm (last accessed 12 May 2018) Articles 610–626.
3 Argentine Republic. Commercial and Civil Code of the Nation. Law no 26.994. Chapter 6. (2015) Buenos Aires: Ministry of Justice and Human Rights of the Nation. Available from – http://www.saij.gob.ar/docs-f/codigo/Codigo_Civil_y_Comercial_de_la_Nacion.pdf. (last accessed 12 May 2018). Articles 1251–1279.
4 Republic of Peru. Civil Code. Decree no 295. Chapter 3. (1984) Lima: Ministry of Justice. Available from – http://spij.minjus.gob.pe/notificacion/guias/CODIGO-CIVIL.pdf (last accessed 12 May 2018) Articles 1771–1789.
300