i-law

International Construction Law Review

INTRODUCTION

Chantal-Aimée Doerries QC

Douglas S Jones AO

Part 2 of 2017 contains articles from a wide variety of jurisdictions. The first article by Mr David S Christie examines the obligation of mutual trust and cooperation in the NEC free contracts. The NEC contract had its origins in the collaborative approach to contracting suggested by Michael Latham in his report “Reviewing Procurement and Contractual Arrangements in the UK Construction Industry” published in 1994. At that time many associated with the construction industry perceived that contracting was a claims driven culture which resulted in the adversarial adjudication of final accounts – in many cases through formal proceedings either in the courts or arbitration. One way of eliminating the adversarial nature of the relationship between employer and contractor was through greater collaboration and the achievement of the contractual object, realising a project, so far as possible, on time and within budget. However, as the article points out, it is one thing to express a term designed to promote collaboration, in the case of the NEC suite of contracts a term of “mutual trust and cooperation”, it is quite another to give the resultant term a clear meaning. The article examines the position of “good faith” in UK jurisdictions and reviews recent authority in this area. Although promoted by individual academics and members of the judiciary, English law at present does not recognise any overarching requirement of parties to a contract to act towards each other in good faith. Since there is no clear definition of what acting in good faith entails, an express term requiring the parties to act in good faith may add little to the express terms of the contract identifying the parties’ primary obligations that the allegation of risk implicit in the choice of contract conditions – a “rhetorical reminder” analysed in the article. It is easy to overlook the fact that English law does recognise an implicit obligation for the parties to cooperate. This has both a positive and negative aspect. The negative aspect, which is widely recognised, is that the parties are under an obligation not to hinder the performance by the other party of its obligations under the contract. A positive obligation to cooperate is, like the obligation of good faith, less often recognised in the United Kingdom. A positive obligation to cooperate in the sense of doing all things necessary to assist the other party in the performance of its contractual obligations probably goes further than a simple obligation of good faith and may anyway lack content. An employer has an obligation to produce drawings at a time consistent with a contractor’s progress unless a contractor itself has undertaken design. To say that the employer is under a positive obligation to produce a design cooperatively does not obviously add anything to the basic obligation. The article puts into context what good faith may mean in a number of different situations while concluding that the overall meaning of the clause is unclear and suggesting means by which it may be clarified.

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