International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
This issue begins with a very useful article on joint ventures written by Mr Jacob C JØrgensen, an associate with Sand & Partners, Copenhagen. It is entitled “International Construction Project Joint Ventures under Swiss Law” (at page 394) since the author has experience of the law of that country. Mr JØrgensen says that Swiss law is considered “neutral”. (He also advocates arbitration in Switzerland.) We had not previously thought of classifying laws in this way, with the implication that some laws are biased (or at least not as friendly as they might be). The proposition is stimulating, as is Mr JØrgensen’s article for it provides a series of challenges that have to be met in devising a joint venture, and, indeed, finding a governing law that will fulfil its objectives. Even if it is not possible to opt for Swiss law, the article should be read carefully for its list of the points that need to be borne in mind in the formation, operation and dissolution of an international joint venture.
Our next contribution is similar in that it is a careful examination of points arising on the use of the new “harmonised” version of the FIDIC Red Book as modified for use on projects funded by a multilateral development bank, and the World Bank’s Sample Bidding Documents. This version was first published by FIDIC and the World Bank last year (and a revised version came out in May 2006). It is available on the FIDIC and World Bank websites. At page 405 Dr Götz Sebastian Hök with colleagues (Mr André Jahn and Mr Robert Leadbeater) goes through the Conditions and provides an extensive commentary on them. As the authors point out, even though European International Contractors provided valuable advice, some of which has been heeded (see the welcome change to clause 2.5), the result is not likely to be regarded as a completely independent and balanced set of rules (any more than the current FIDIC Conditions). They believe, with reason, that the English law principle of interpretation—the “contra proferentem
” rule—and Article 4.6 of the Unidroit Principles would probably be applicable. The practical effect of this conclusion is probably limited. There are not that many parts of the Conditions which could be said to be truly ambiguous, and the bias towards the interests of the employer is clear (which in the case of this harmonised version is only to be expected). The form will, however, be considered as validating some private sector practices in the Part II Conditions where such changes are not uncommon. For this reason alone this contribution should be read both as a good guide to the new Conditions but also for its insights into the types of alteration that may be made to the model form Red Book.
We continue with a trio of articles about dispute resolution. In a paper (at page 422) which is as entertaining as its title “Canada Dry Arbitrations?”, Mr Alexis Mourre, a member of the Paris Bar and a partner in Castaldi Mourre Sprague, explores the juridical nature of decisions of Dispute
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