CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
International construction projects are beset with unique characteristics, including their time sensitive nature and penchant for complexity. These features often give rise to disputes involving delay and the allocation of liability. As our readers are no doubt aware, avoiding such disputes is a challenge in itself and often requires an appreciation of the legal principles and developments underpinning these issues. The first part of the 2019 ICLR seeks to address this by providing readers with useful insights into cornerstone construction issues, including unforeseen site conditions, and concepts related to delay, such as the prevention principle and acceleration. The schools of thought and jurisdictions covered in this part are diverse, providing readers with a melting pot of construction law developments hailing from all corners of the globe.
First, this part will consider unforeseen site conditions, a topic which has featured in ICLR editions in recent years, and is comprehensively explored in Julian Bailey’s article “International Perspectives on Unforeseen Site Conditions”. The paper examines the nuances existing in the legal treatment of site conditions in different jurisdictions. Bailey’s paper was delivered on the centenary of the Spearin decision, and thus, it opens with a discussion of unforeseen site conditions as considered by the US Supreme Court. Under the Spearin doctrine, where a contractor is bound to build according to the owner’s specifications, the contractor is not liable for defects in the specifications. Bailey contrasts this approach with the English position where there is no such implied term conferring relief upon the contractor in the face of adverse site conditions. The paper then turns to Australia to consider the interaction between unforeseen site conditions and statutory rights prohibiting misleading or deceptive conduct. The final destination in Bailey’s tour is the Gulf. Here, the author sheds light on the intricacies of decennial liability, and gives the paper a civil law flavour. Bailey eloquently contributes to the ongoing conversation of issues concerning adverse site conditions, providing readers with a greater appreciation of the legal principles guiding risk allocation.
Next, we have a contribution from Duncan Glaholt entitled “Pre-Arbitral Steps, Jurisdiction, Public Policy and Article 34 Discretion”. The paper is a comprehensive case note that analyses the recent Canadian decision of Consolidated Contractors Group SAL (Offshore) v Ambatovy Minerals SA . In this case, an application under Article 34 was brought by the contractor to set aside an award rendered in an arbitration involving the construction of a pipeline in Madagascar. Ultimately, the Article 34 challenge was unsuccessful, as were subsequent appeals. Considering that arbitration is largely accepted as the preferred means of resolving construction disputes, this case will be of relevance to many construction participants. The decision affirms the high threshold required to set aside an award and
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