International Construction Law Review
INTRODUCTION
Chantal-Aimée Doerries QC
Douglas S Jones AO
This first issue of the 2017 ICLR is characterised by practicality, containing a collection of papers written with useful takeaways for all parties involved in the construction contract and at any stage of the project. The contributors cover a variety of topics, some with focuses on a particular aspect of construction projects – for example, the “Employer Requirements” document, latent conditions and design life – while others address broad issues of contracting – for example, common issues in EPC contracts and the need to shift away from pricing as a method of contract procurement. Arguably, our most contemporary article is one on the topic of innovation in construction contracts, with the salient thesis being an examination of how to draft a contract clause incentivising it. It is a pleasure to finish this issue with a book review of a most revered resource, Julian Bailey’s second edition of his Construction Law series.
First, Eric Eggink has marked his return to the ICLR with a highly practical article on change orders in contractual disputes. Minimising risk in construction contracts will forever be an onerous burden on parties, particularly employers, and the use of the “Employer’s Requirements” document is a staple to achieve this end. However, as Eggink notes, the “devil is in the details”, and employers are challenged with detailing their requirements in the face of diminishing returns against their liability; the more detail, the more liability that remains with the employer, the less detail, the more liability transfers to the contractor at the increased risk of the employers’ dissatisfaction with the final result. Eggink’s extensive experience in this area enables him to advise on the appropriate level of detail to include in the Employer’s Requirement document, when to issue the documents, and to be mindful of the effect of changing these requirements during the project. Eggink also provides useful commentary to contractors, advising on what to do when perusing bidding documents and who to involve in such perusal, as well as on unforeseeable physical conditions while executing works, budgeting, and site investigations.
Donald Charrett discusses the important difference between service life and design life, and why such a distinction is relevant with regard to construction contracts. Charrett defines service life as the time that a facility is in functional operation, whilst design life refers to the expected service life which results from the design process. This difference is paramount when comparing the “default” legal obligation to prepare a design with due skill and care (which places an obligation on design life), with the common contractual obligation for a constructed facility to be fit for purpose (which places an obligation on service life). Indeed, notwithstanding strong recent developments in the “science” of engineering, there remains a considerable amount of “art” involved, meaning that even if a facility is designed properly, it may still fail during its expected service life. Charrett explores these
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