CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
The strength of The International Construction Law Review is its focus on the international aspects of construction law and its unique challenges and opportunities. This issue of the ICLR discusses these questions of internationalisation and provides valuable comparative analyses which reveal how the law relating to construction continues to evolve over time and across jurisdictions. In the continued uncertainty of the Covid-19 era, the articles of Part 1 2021 bring to the forefront key, emerging issues in an increasingly relevant area.
We begin this Part with Jennifer Charlson and Rebecca Dickson’s “Covid-19 and Construction Law: Comparing the UK and Australian Response”. Charlson and Dickson embark on a timely, comparative analysis of the impact of the evolving Covid-19 pandemic on construction law and projects, following on from James Pickavance’s discussion in Part 4 of the ICLR 2020. The authors’ comparison of the UK and Australia leads to the conclusion that the impact of government responses to Covid-19 on the construction industry have been similarly profound across both jurisdictions albeit by way of different methods. In the UK, most restrictions have been delivered through health protection legislation, meaning impacts on the construction industry have been indirect and governed by separate guidelines. There is also a nascent body of case law in the UK Technology and Construction Court which reveals the desire of judges to expedite hearings despite difficulties with Covid-19. In Australia, each state and territory has responded to the pandemic with their own legislative powers creating a complex regulatory framework. There have also been several guidelines issued by key regulatory bodies, the uncertain binding nature of which is discussed by the authors. The article delves additionally into issues of contract and the likely difficulties with accessing force majeure or the doctrine of frustration, a topic also addressed by Christopher R Seppälä and Arthur Moreau in the French Correspondent’s Report of this Part. Despite these challenges and future uncertainties, Charlson and Dickson argue that the construction industry in both countries has demonstrated that it is well placed to adapt to the ongoing changes in health and security requirements.
We continue with “Fitness for Purpose v Reasonable Skill and Care: How do English Principles Regarding Standards of Care Fit in Civil Law Jurisdictions?” by Ulrich Helm, George Fisher, Patricia Ugalde Revilla and Marcelo Richter. The authors examine the dichotomy between fitness for purpose and reasonable skill and care obligations in English law. They then assess the varying degrees to which this distinction is present, and how it is