International Construction Law Review
INTRODUCTION
CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
Part 3 2020 of the ICLR is published against the background of unprecedented worldwide anxiety and economic uncertainty. The Covid-19 pandemic, which has struck all inhabited corners of the world, has profoundly affected the way that we view our global connectedness. Travel bans, self-isolation and quarantine have all limited the scope of our physical movement. This does not, however, require us to be disconnected from those living away from us. Our growing appetite for innovation and developments in technology have resulted in inventive and original solutions to address our physical limitations. It is therefore only fitting that, in this Part, we are fortunate to have a particularly international breadth of articles and Correspondent’s Reports. The scholarship in this issue draws from jurisdictions as diverse as Australia, Chile, South Africa and Malaysia. The comparative nature of these articles is reflective of the global networks that remain even during a global pandemic.
We begin with “How Do International Construction Arbitrators Make Their Decisions? The Status of Substantive Law”, which was written by Haytham Besaiso and Peter Fenn, and has been peer-reviewed by the ICLR Peer Review Board. This article explores the decision-making processes of international construction arbitrators. It has often been said that the decision-making processes of arbitral tribunals are like a “black box” – secretive and opaque. Calls for greater transparency of arbitral reasoning, or at least of the “substantive norms that influence arbitrators’ decisions” have increased in recent years.1 In response to the paucity of legal scholarship in this area, Besaiso and Fenn conduct a detailed analysis of arbitral decision-making behaviour, drawing upon their own empirical research. Besaiso and Fenn consider the data collected from published arbitral awards and semi-structured interviews with 28 construction arbitrators of several different nationalities. The authors use this data to examine the attitude of arbitrators toward the duty to apply the law and the effect of substantive law on tribunal decisions regarding contractual interpretation. They conclude that, in the majority of cases, international construction arbitrators respect their duty to apply the law and do indeed apply it, unless the parties have agreed otherwise. The interview template and the profiles of the research participants have helpfully been appended to the article, and provide greater insight into Besaiso and Fenn’s empirical research.
Next, we turn to Janine Stewart, Grant de Lisle and Katie Karpik’s article, “A Global Perspective on Extensions of Time in Construction Projects”. In this paper, Stewart, de Lisle and Karpik consider the application of the all-important extension of time clause in construction contracts. Their discussion of extension of time clauses encompasses the adjacent issues
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