CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
We start with a joint paper by Wolfgang Breyer, Júlio César Bueno, Brian Gaudet and Shy Jackson, titled “What do the Words Mean: Different Approaches to the Interpretation of Contracts”. In common with a number of other papers in this Part 2 of 2019, this article was presented at the eighth International Society of Construction Law Conference in Chicago in September 2018. The paper draws on the expertise of its authors, presenting a very interesting and highly comparative assessment of the approach to the interpretation of contracts in different legal systems. The authors analyse the approach of tribunals applying the common law of the USA, the common law of England and Wales, German civil law, and Brazilian civil law. Based on this detailed comparative review, the authors conclude, perhaps not surprisingly, that there are real differences in approach between the different legal systems, but that interestingly it is not invariably the case, that the results arrived at (following the adoption of the different approaches) are so very different. While instinctively readers might anticipate that the frequent use of standard form contracts in the sector might act as a bulwark against disputes arising between parties as to the correct interpretation of contractual provisions, the authors conclude that this is not the case, partly due to the frequency with which such forms are substantially amended.
In “The Legal Status and the Enforcement of the Dispute Board Decision”, Giuseppe Giancarlo Franco assesses the legal nature of dispute boards and of the decisions of such boards. Despite the increased use of
DRBs on substantial international construction projects, there remain significant questions around the legal status of the dispute board mechanism.
A particularly interesting aspect of this article is the review of the approach adopted in Italy in relation to the decision of an engineer operating on the 1987 FIDIC Conditions, which was held in the Appellate Court of Rome to amount to a “contractual award”, even entitling the beneficiary to directly enforce under the New York Convention. The author’s conclusion is a rallying call to international bodies and national lawmakers to participate in a serious debate on dispute board procedures with a view to considering clarifying the legal status of DRBs and the identification of the method to be adopted for enforcement of DRB decisions.
The third article – “What Have We Learned from Megaprojects” by Bruce Hallock and James Zack – also has its origins in the eighth International Society of Construction Law Conference. This piece provides an engaging and important contribution to the debate as to the unique features of so-called Megaprojects and to what extent the industry has learned, or will learn going forward from the implementation of so many such projects in recent years. In addition to reviewing the challenges encountered by such projects, the authors make use of a case study to demonstrate arising issues and the need to learn from past projects. The case study is the now
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