i-law

International Construction Law Review

INTERNATIONAL PROJECTS UNDER GERMAN LAW—TRAPS FOR DEVELOPERS AND INVESTORS

DR H-JÜRGEN SCHRAMKE AND BIJAN YAZDANI

Baker & McKenzie, Frankfurt

1. INTRODUCTION

German contractors are involved in a large number of international construction projects both in Germany and elsewhere in the world. Not surprisingly, German contractors tend to insist on their contractual relations with their employer being governed by German law. Of course, the employer, that is in most cases a developer or investor, will usually try to opt for the law it is familiar with; but experience has shown that, when selecting the appropriate contractor and negotiating the terms of the contract, other issues—such as expertise, quality of work, prices and time schedules—are prioritised and the choice of law clause is considered to be of minor importance. The choice of a foreign law, however, always involves severe risks for the party that is not familiar with it. While this is basically true for all kinds of contracts in any market, there are some particular peculiarities of German law in the construction sector that could seriously endanger the financial basis of the entire project if the developer/investor has not taken account of them when setting up the financial structure and negotiating the terms of the agreement.
This article is intended to give an overview about one particular aspect of German law that is likely to adversely affect the interests of a developer/ investor in the context of its contractual relationship with the contractor as far as it is governed by German law. It focuses on the contractor’s rights to require its customer to provide security (bank guarantees, mortgages etc.) to safeguard the contractor’s claims for remuneration. The first part of the article deals with the background, the purpose of the relevant provisions and some selected general legal and practical problems; the second part refers to a specific issue that often arises in major international projects whenever the contractor’s financial contribution to the project is sought.
Pt 4]
International Projects under German Law

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