International Construction Law Review
INTRODUCING THE NEW ENGINEERING CONTRACT: ENGINEERING AND CONSTRUCTION CONTRACT (NEC3 ECC) FROM A DUTCH LAW PERSPECTIVE
Andrea Chao
Managing associate, Simmons & Simmons LLP (Amsterdam, the Netherlands) (andrea.chao@simmons-simmons.com)
ABSTRACT
The international experience gained with the NEC3 model makes it interesting to examine whether this model could also be used in the Netherlands and what this would require given the existing legal framework. This article reflects on such examination, by discussing the background, structure and set up of the NEC3 ECC, by providing an overview of several interesting key characteristics of the NEC3 ECC (which could also be useful for projects not based on the NEC3 ECC), and by stating adjustments that must be made to the NEC3 ECC from a Dutch legal point of view.
1. Introduction1
The New Engineering Contract: Engineering and Construction Contract (the third edition of which is referred to as the NEC3 ECC) was used in several prominent foreign construction projects, such as the expansion of London Heathrow Airport (terminal 2), the expansion of the Indira Gandhi International Airport in New Delhi (terminal 3), and the London Olympic Velodrome.2 In the Netherlands this model was used for the construction of the International Criminal Court in The Hague.
The approach demanded by the NEC3 ECC is that following its signing the contract should be a user’s guide with regard to the work and collaboration during a construction project. The contract should not end up in a drawer to be taken out only in the event of an (imminent) dispute, but should be present on a desk.3
1 This article is an adaption, update and shortened version of my contribution to a collection of articles (liber amicorum) presented to Arent van Wassenaer at the occasion of his departure from Allen & Overy LLP. Arent is a lawyer known for his innovative “best for project” approach to construction projects. An approach that resonates in the New Engineering Contract: Engineering and Construction Contract. The source reference for this article is: Andrea Chao, “Een kennismaking met het New Engineering Contract: Engineering and Construction Contract (NEC3 ECC)” in M A B Chao-Duivis, J M Hebly, E J Blom (red.), Van het Gebaande Pad, IBR (Den Haag 2016) pp 1 to 26, https://www.ibr.nl/publicaties/ibr-publicaties/van-het-gebaande-pad/ The author would like to thank Rob Horne, partner at Simmons & Simmons LLP, for sharing his extensive experience on NEC3 projects while preparing this article.
2 An overview of dozens of projects procured on the basis of NEC3 ECC, or its predecessors, can be found at https://www.neccontract.com/Case-Studies.
3 See for the same approach the guidance notes to the NEC3 ECC contract.
Pt 3] Introducing the New Engineering Contract
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