i-law

International Construction Law Review

INTRODUCTION

Chantal-Aimée Doerries QC

Douglas S Jones AO

The second decade of the 21st century has seen, it is frequently said, faster innovation than previous decades. Much has been written in the mainstream press about the imminent arrival of the driverless car, able to sense its surroundings and navigate without the presence of a human. In this context, it is often overlooked that we already have driverless trains. As of July 2016, there were 55 fully automated metro lines in the world and projections suggest that metro systems with automated trains will triple over the next years. In our first article, “Driverless Trains — Getting to your Destination”, Andrew Chew and Ella Pope consider the issues which parties need to take on board in the context of the procurement of driverless metro systems. The wide range of topics covered by the authors includes warranties for fitness for purpose, industry best practice and specifications, performance based contracting, technological advancements and intellectual property, rail and workplace safety requirements and limitation of liability and exclusion clauses. Probably outside the purview of this publication, but a central challenge for proponents of driverless trains remains persuading unionised labour, and perhaps society more widely, of the operational benefits of automised transport. In markets with a strongly unionised labour lobby there has been considerable success in persuading society of the benefits of maintaining drivers and guards on trains on health and safety grounds. However, Chew and Pope highlight the inevitability of further technological advances and challenge the readers of the ICLR and the wider industry to recognise that now, before the normalisation of these advances, is the time to consider the appropriate risk allocation and the level of regulation required to ensure the integration of automate transportation.
Next, in “Fitness for Purpose Obligations under International Standard Form Contracts”, Chris Duncan and Sarah Hudson comprehensively explore the varying approaches to fitness for purpose obligations under a raft of standard form construction and engineering contracts typically used in large international projects, including the FIDIC, NEC and LOGIC forms. Contracts for large infrastructure projects commonly incorporate substantial legal and technical documentation, frequently of multiple authorship, giving rise to risks for all contracting parties, including in the drafting of clear and comprehensive contractual obligations. Against this background the authors highlight the need for particular care to be taken by both employers and contractors when contracting on terms including, or intended to include, a fitness purpose obligation. Of particular interest is the detailed discussion of the different FIDIC forms and the 2017 amendments. By way of a reminder of the value of fitness for purpose obligations to employers, Duncan and Hudson refer to the recent UK Supreme Court

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