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LEX CONSTRUCTIONIS – OR MY COUNTRY’S RULES?

International Construction Law Review

LEX CONSTRUCTIONIS – OR MY COUNTRY’S RULES?

Dr Donald Charrett*

Arbitrator, Mediator and Dispute Board Member, Expert Determination Chambers (email [email protected])

ABSTRACT

Each jurisdiction has laws that impact on contracts for construction work: for the governing law of the contract, for the site of the construction work, or for the seat of dispute resolution. This paper explores the question of whether there are universally accepted principles of construction law, a lex constructionis. Three issues are discussed that can promote greater uniformity in the international practice of construction law: the use of FIDIC contracts, international commercial arbitration and the modern statements of the lex mercatoria. A list of 20 principles of lex constructionis is proposed.

INTRODUCTION

Contract law in all countries is based on the twin principles of freedom of contract, and pacta sunt servanda. However, each jurisdiction has laws that impact on contracts for construction work. Local laws apply if the governing law of the contract is in the jurisdiction, if the site of the construction work is in the jurisdiction, or if the seat of dispute resolution is in the jurisdiction. This paper explores the question of whether there are universally accepted principles of construction law, a lex constructionis, or whether it is trumped in every jurisdiction by local laws that differ from international norms. Three issues are discussed that support the concept of lex constructionis in the international practice of construction law: the use of FIDIC contracts, international commercial arbitration and the lex mercatoria.
The paper concludes with a proposed list of 20 principles of lex constructionis that take into account the unique features of construction projects and construction contracts.

CONSTRUCTION CONTRACTS

Construction law is the law relating to construction projects: their design, construction, maintenance and operation. The legal mechanism for delivery of a construction project is a construction contract between employer and

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