International Construction Law Review
SUBCONTRACTING IN EUROPE: THE RESULTS OF A QUESTIONNAIRE
PROF DR M A B CHAO -DUIVIS1
Director, Dutch Institute for Construction Law
Introduction
The European Society of Construction Law (ESCL) devoted its annual conference in 2012 to discussing the position of the subcontractor. Preparation for the conference was undertaken by the Belgian hosts in the form of a questionnaire,2 the answers to which are the subject of this article. The complete set of answers can be found on the website of the ESCL.3 Replies to the questionnaire came from Belgium, England and Wales, France, Germany, Italy, The Netherlands, Slovakia, Spain and Switzerland.
The questionnaire contained four themes:
- 1. Definition and formation of the subcontract;
- 2. Subcontract payment issues;
- 3. Transparency/back to back; and
- 4. Dispute resolution.
This article provides an overview of the majority of the answers given to the questions. To begin, there are a few general remarks which readers will find useful. The word “employer” is used for the employer of the main contractor, while the main contractor is also referred to as the “contractor”. Not all questions were answered by all countries, and some questions have been left out of this article either because the answers were not comparable or to keep the article to a reasonable length.4
1. Definition and formation of the subcontract
1.1 When does a contractual arrangement (re)qualify as a subcontract rather than a sales/supply or service agreement—or vice-versa? Does it matter when an
1 Monika Chao-Duivis is director of the Dutch Institute for Construction Law and Professor of Construction Law at the Technical University of Delft.
2 The meeting took place in Liège and was organised by the Belgian Society of Construction Law and the University of Liège and made possible with the ?nancial support of the David Constant Foundation. Preparations were made in particular by Professor Benoît Kohl from the University of Liège and Marco Schoups, attorney at Schoups Advocaten in Antwerp.
3 www.escl.org
4 An answer was also received for the USA from J B Tieder, P A Varela, A N Lamme and D Broderick. It is omitted as this article is con?ned to Europe.
Pt 3] Subcontracting in Europe: Questionnaire Results
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