CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
As the construction industry develops in the modern age, so too do its challenges. With growing technological capabilities and globalisation come new problems in collaboration; the assessment of damages continues to give rise to difficulties in construction disputes; and the prevention principle remains a hotly debated issue. Part 3 of the 2019 International Construction Law Review provides readers with key insights into these topics.
The first article, “Collaborating and Contracting for Success: How Future-Proofed are the New NEC4 and FIDIC 2017 Suites for the Needs of the Global Construction Industry in the Technological Age?”, authored by Charles Blamire-Brown and Danielle Griffiths, explores the relevance of the 2017 editions of the NEC4 and FIDIC Standard Contract suites in light of a modernising construction sphere. Rapidly increasing globalisation and technological innovation have significantly changed the nature of construction contracts, chiefly through a renewed focus on collaboration. The authors argue that this focus must now drive reform in standard contract structures. The ways in which the NEC4 and FIDIC suites facilitate collaboration are considered under four topics: use of technology (with particular focus on BIM), risk allocation, contract management and dispute resolution. Attention is then turned to NEC-specific conditions based around incentivising collaboration between parties to a project, such as the Alliance Contract. Relevantly, the Alliance Contract and NEC4 are further explored in the United Kingdom Correspondent’s Report later in this Part.
Next, we enter the challenging area of damage recovery, in an article by Phillip Bruner entitled “Damage Recovery Measurement Issues Unique to Construction Disputes”. While the measurement of damages can be complex, construction disputes give rise to an additional layer of difficulty, resulting in what Bruner characterises as a “veritable Gordian knot”. The paper begins with a case note on a recent decision in the United States, Northern Petrochemical Co v Thorsen & Thorshov Inc 211 N W 2d 159 (Minn 1973), a negligent breach of contract case in which the Minnesota Supreme Court grappled with the “extraordinary confusion” of damages measurements. Bruner then provides an overview of the numerous recognised concepts for measuring damages, including the doctrine of contract constraint, and the doctrine of economic loss and substantial performance, concluding that uniformity of legal remedies applicable to modern construction disputes is far from being achieved. Interestingly, Bruner concedes that such unification of damage recovery principles will likely remain no more than a vision and proposes not a solution, but a way of managing the “Gordian knot”; that is, a better understanding of the nuances in the application of the various approaches to damage measurement and acknowledgment of its difficulties.
We then move to “The Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) to Manufacturing and
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