International Construction Law Review
INTRODUCTION
Chantal-Aimée Doerries QC
Douglas S Jones AO
The first article in this Second Edition of 2016 is by Professor Lupton on the important and still controversial question of the extent of a Design and Build Contractor’s design obligation where following the design produces an inadequate outcome. The first trilogy of cases considered concern the scope of the Contractor’s design portion in standard form contracts. The second group of four cases, two of which were decided in the English Court of Appeal are, perhaps, more interesting. The problem originates in the distinction between a contract for the supply of goods and a contract for the supply of services. Under the Supply of Goods and Services Act 1982, the supply of goods is subject to the statutory implication of satisfactory quality or fitness for purpose, whereas the provision of services is to a qualified standard, that of reasonable skill and care. Where a Contract is both for the design (services) and handover of a completed building or structure (which may be subject to an express or implied obligation of quality), the question arises whether a failure in the completed structure or building because of inadequate design is governed by the obligation of skill and care, the obligation of satisfactory quality or fitness for purpose, or both. In MT Højgaard A/S, the Court of Appeal attempted to resolve this question by a process of construing the various terms of the Contract, it considered to be in conflict. This case is now on appeal to the Supreme Court and so further clarification may be forthcoming. Professor Lupton’s article gives a valuable insight into the problems that Design and Build Contracts present. It also offers useful guidance to those responsible for drafting such Contracts.
The second article by Ramy Ihab Naguib entitled “Claims, Disputes and Arbitration Clauses under FIDIC Red and Gold Books”, highlights and investigates the advantages and disadvantages of the changes introduced by the FIDIC Gold Book in relation to claims. The question of notification of claims is one of perennial interest to international arbitration practitioners and is one on which some guidance is to be found in the case noted in the casenotes of Obrascon Huarte Lain SA v Attorney General for Gibraltar, in the first instance decision of Mr Justice Akenhead. The article starts with a useful summary of the background to the changes and then considers them in detail. The article poses a number of outstanding questions and draws particular attention to the new powers of the DAB in relation to claims under the Gold Book. It concludes with recommendations for those considering drafting amendments to the Red Book and the Gold Book. One further matter to keep in mind is the proper law of the Contract, since different jurisdictions regard a failure to comply strictly with notice requirements with differing degrees of permissiveness.
The third article by Samer Skaik, Jeremy Coggins and Anthony Mills gives a comprehensive overview of the state of adjudication in Australia. After a wide-ranging review of the data available relating to adjudication practice and the attitude of the courts in various Australian states, the
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