International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD DOUGLAS S JONES , AO
This issue of the International Construction Law Review begins with Dr Nael Bunni’s article “Construction Contracts in the Middle East: Expect the Unexpected” (page 372) on uncertainty in construction contracts in parts of the Middle East. Surveying a number of Middle Eastern jurisdictions and various legal frameworks, Dr Bunni highlights both points of concern for the contractor and potential points for improvement in each of those countries. It is instructive to note that the extent to which countries have adopted the UNCITRAL Model Law with minimal amendments often correlates with a more stable and predictable framework in which contracting parties may resolve their disputes—and, conversely, the extent of uncertainty in jurisdictions in which extensive (and not always helpful) modifications to the UNCITRAL Model Law have been made. Both practitioners and contractors operating across the Middle East should pay close attention to the peculiarities of every jurisdiction, and would often do well to heed Dr Bunni’s recommendation to “expect the unexpected”.
Matthew Bell (of the University of Melbourne) and Richard J Manly SC (of Chancery Chambers and TEC Chambers, Melbourne) consider the utility of liquidated damages in commercial contracts in “Liquidated Damages and the Doctrine of Penalties: Rethinking the War on Terrorem” (page 386), and correlatively, whether the law has kept pace with the commercial environment in which liquidated damages are used. In particular, the article considers whether the current prohibition on incentivising performance by placing another party in fear of a breach (and therefore liquidated damages) ought to be lifted. It is a timely and considered article that ultimately proposes a more practical method for assessing the legitimacy of liquidated damages provisions whilst not abandoning the principled basis for their curtailment where they do not further the purpose of the contract. Since writing the article the High Court of Australia has allowed the appeal in Andrews v. ANZ Banking Group Limited—see [2012] HCA 30—from one of the decisions cited in it, but the authors consider that the judgment does not affect their premises or conclusions.
The next article, “Employer’s Failure to Make Payment to Contractor—A Study of Construction Contracts under Egyptian Civil Law”, by Dr Tarek Hussein Hamed (of the Faculty of Engineering, Cairo University), Dr Sherif Mostafa El Haggan (of Sheffield University, England) and Professor Nabil Abdel Badei Yehia (of the Faculty of Engineering, Cairo University) (at page 406), is a detailed evaluation of the provisions of the Egyptian Civil Code that outline an employer’s obligation to pay to the contractor the price of a contract. The absence of consequences in the event of non-payment is noted by these authors: by comparing the relevant provisions with the FIDIC Conditions of Contract, they suggest that the Egyptian Civil Code does not do enough to provide for the imposition of penalties in the
The International Construction Law Review [2012
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