International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
This issue begins with an article by a member of our Editorial Advisory Board, Monika A B Chao-Duivis, the Director of the Instituut voor Bouwrecht (Institute for Construction Law) and Professor at Delft University of Technology, who provides a valuable update on “Joint and Several Liability in Construction Contract Law” (page 406). Chao-Duivis provides a timely review of the subject which was last visited in this Review in January 2007 by Co-Editor Professor Doug Jones with his article “Proportionate Liability—Reform or Regression?” ([2007] ICLR 62). The paper takes a particular focus on joint and severable liability arising on the side of commissioned parties, beginning with a brief explanation of the legal rules on joint and several liability. Chao-Duivis then delves into coincidental jointly responsible parties and discusses the options to adjust the approach through a system of alternative or proportional liability. In doing so, she includes an analysis of the debate on joint and several liability in the United Kingdom where many believe it is time for law reform on this topic. Finally, there is a discussion on joint and several liability in arbitral proceedings.
The second contribution (page 427) considers the eternal question: how to avoid disputes in design and construct contracts. Dr Donald Charrett, a member of the Bar of Victoria, Australia, considers the inherent conflicts in design and construct contracts and how they can be managed to avoid disputes from a contractor’s perspective. After first noting the importance of careful preparation of the contractor’s programme as part of the tender process, Charrett looks in depth at the pitfalls to be avoided when negotiating contract terms. He highlights the need to be aware of contract terms that are unacceptable irrespective of price and those that are undesirable but can be priced. Charrett then goes on to suggest various tools available to contractors in the project management stage which may assist in the avoidance of disputes. He concludes by acknowledging that, despite best efforts and intentions, disputes are inevitable in design and construct contracts and proposes that, as with any other aspect of a project, proper management of the dispute process is required to ensure efficient and effective resolution.
Our third article (page 443) explores the unsettled law governing on-demand performance bonds in England, challenging the perception that a contractor’s prospects of obtaining injunctive relief to restrain an unfair call on a performance bond are considerably more limited in England than in Australia. This article by John Lurie of Dechert LLP, London, complements Philip Dunham’s article “The Use and Abuse of First Demand Guarantees in International Construction Projects” featured in the last edition of this Review: [2008] ICLR 273. Lurie begins by clarifying the differences between default performance bonds and the various forms
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