International Construction Law Review
BEYOND THE NUTCRACKER SUITE: INTERNATIONAL HARMONISATION OF CONSTRUCTION INDUSTRY PAYMENT LEGISLATION
MATTHEW BELL
The University of Melbourne*
DR JEREMY COGGINS
The University of South Australia**
I. INTRODUCTION
“No other tool … has shown such a wide diversity of material and design as the implements used to crack the hard shell of a nut.”
So observes the website of the Nutcracker Museum in Leavenworth, Washington State. It goes on to inform its readers that the museum houses more than 6,000 specimens of nutcrackers, some dating from Roman times1. Outside the rarefied confines of this museum, however, those of us in need of a nutcracker are likely to find in our hands one of the millions which have been produced based upon the model patented by Henry Quackenbush in 1913. This is the familiar, hinged type consisting of two metal arms with a serrated indent2. It is an easy to use, inexpensive instrument which is fit for its purpose of “open[ing] the nutshell to capture the delicious morsel inside”3.
Over the centuries – indeed, since well before Roman times4 – and around the world, the construction industry has been in search of such a simple yet
* BA (Hons), LLB (Hons), M Constr Law (Melb); Senior Lecturer and Co-Director of Studies for Construction Law, Melbourne Law School, The University of Melbourne; Professional Support Lawyer to the Major Projects and Construction Group, Clayton Utz.
** BSc (Hons), LLM, Grad Cert BCLaw, PhD in Law (Adelaide); Senior Lecturer and Co-Program Director for Construction Management and Economics, School of Natural and Built Environments, The University of South Australia. This article is a substantially-revised version of a paper by Matthew Bell which was awarded the second prize in the Society of Construction Law Hudson Prize essay competition for 2013 and presented in London on 1 July 2014. That paper was first published at www.scl.org.uk.
1 www.nutcrackermuseum.com.
2 www.ideafinder.com/history/inventions/nutcracker.htm.
3 www.nutcrackermuseum.com.
4 The rules laid down by the Babylonian King, Hammurabi, in the second century BC included articles regulating construction work and disputes (see eg, Philip Bruner, “The Historical Emergence of Construction Law” (2007) 34 William Mitchell Law Review 1, 2). For discussion of payment tensions in more recent times, see eg, Sir Anthony May, “Set-Back to Set-Off”, SCL (UK) Paper 184, September 2013, 7–9 (medieval cathedral building). Richard Davis, Construction Insolvency: Security, Risk and Renewal in Construction Contracts (2011) 7–9 (railway projects in Victorian England) and 1–3 (Royal Courts of Justice, London).
Pt 2] Beyond The Nutcracker Suite
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