International Construction Law Review

Chantal-Aimée Doerries KC; Professor Douglas Jones AO

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OPTIMISING CONTRACTING FOR ALLIANCES IN INFRASTRUCTURE PROJECTS

MATTON VAN DEN BERG*

PETER KAMMINGA*

Department of Private Law, Tilburg University

I. INTRODUCTION

One of the main problems the construction industry is faced with worldwide is that the costs of complex projects such as infrastructure works always end up being much higher than planned. A second problem is that such projects are often more time-consuming than projected. Conflicts are an important reason for budget overruns and delays.

A solution to the problem is sought in encouraging the parties to adopt a more co-operative attitude in order to improve efficiency in terms of costs, time and quality. Alliancing is one of the most well-known forms of co-operation pursuing those objectives. In theory, it is a promising form. In practice, however, there is no guarantee it will lead to substantial cost and time savings. In our opinion there is an essential mismatch between the idea and the structure of the alliance form and the way in which legal (construction) contracts and legal thinking in general are structured. The concept loses its strong points when it is translated into a legal document. As a consequence, alliance contracts constitute a threat to an alliance rather than support.

A legal framework is needed that effectively supports the alliance form and prevents parties from reverting to their former unco-operative and adverse behaviour when conflicts arise. In this article, we suggest incorporating negotiation- and conflict-theory insights into alliance contracts and the contracting process. We also make some preliminary propositions for more “co-operative contracting” in alliances.

II. ALLIANCES

1. The alliance between the client and the contractor

Alliancing and partnering are two terms that are often used in articles on the subject of co-operation. There is little consensus on what these terms

* M A M C (Matton) van den Berg is Professor of Private Law, specialising in the field of construction law, at the Department of Private Law at Tilburg University. Y P (Peter) Kamminga is Assistant Professor at the Department of Private Law at Tilburg University. They would like to thank the participants in the Centre for Liability Law project “Cooperation and Contracts” for their helpful comments. We would also like to thank Professor Dr Monika Chao-Duivis and His Honour Humphrey LLoyd, QC, for their comments on an earlier version of this article.

[2006

The International Construction Law Review

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