International Construction Law Review
OBLIGATIONS OF GOOD FAITH IN PARTNERING OF UK CONSTRUCTION CONTRACTS
BARBARA COLLEDGE
Assistant Dean and Head of School of the Built Environment, Leeds Metropolitan University
INTRODUCTION
With the increased incidence of partnering in the UK construction industry,1
determining the significance of a partnering relationship and its impact on the obligations of the parties under English law is of critical importance. In practice, the nature of a partnering agreement varies and may be of a strategic or project-specific nature. However, what such relationships endeavour to do is agree key mutual objectives to which all parties subscribe, often including expressions such as a commitment to co-operation, teamworking or trust. The emphasis would appear to be on the establishment of a “commitment from all the partners at all levels to make the project a success. The result is that the partnering agreement drives the relationship between the parties rather than the contract document.”2
Where partnering or strategic alliances have been successful, it is claimed that the legal status of such objectives is irrelevant: “Effective partnering does not rest on contracts…[these] should gradually become obsolete.”3
However, there are others who would disagree and who argue that in such relationships there is an even greater need for contractual clarity.4
If recent anecdotal evidence of a partnering divide is more widespread, there would appear to be a difference between the rhetoric and the reality in some partnering experiences.5
This is resulting in some partners becoming dissatisfied with such arrangements, particularly where the stronger bargaining power of their partners is driving cost reductions and reducing profit margins. Moreover, experience in Australia indicates the potential for fundamental problems to emerge in relation to disparities between the
1 Construction Industry Board (CIB) Working Group 12, Partnering in the Team
(1997) Thomas Telford London.
2 CIB (1997) supra,
note 1 at p 1.
3 J Egan, Rethinking Construction,
The Report of the Construction Industry Task Force to the Deputy Prime Minister, John Prescott, on the scope for improving the quality and efficiency of UK construction, (1998) Department of the Environment, Transport and the Regions, London.
4 J Critchlow, Making Partnering Work in the Construction Industry
(1998) Chandos Publishing Ltd, Oxford.
5 N Barrett, “Partnering Pitfalls being overlooked?” Construction Law,
Vol 9, Issue 4, pp 137–138.
[2000
The International Construction Law Review
176