International Construction Law Review
CONSTRUCTION QUALITY IMPROVEMENT: A COMPARATIVE OVERVIEW AND DISCUSSION OF THE ROLE OF INSURANCE IN ASSURING CONSTRUCTION QUALITY AND SAFETY
STÉPHANIE VAN GULIJK1
Key words: contract law, insurance, construction safety, liability, responsibility.
1. INTRODUCTION
In Dutch construction contract law, there is growing interest in insurance as a regulatory mechanism for construction safety improvements. This interest originates from the Dutch government’s initiatives to reform Dutch construction law. After two decades of debate, in 2014 an initial draft law, titled “Kwaliteitsborging voor het bouwen”2 (Quality Assurance for Construction), was made public. Legal scholars and construction practitioners heavily criticised this first draft. In July 2017, the Dutch Senate decided to postpone the vote on the amended draft until 2019. According to the Minister of Internal Affairs, the plans required greater public support with respect to their content and feasibility.3 Nonetheless, if the law is enacted, it will change the entire supervision of building works and the rules governing liability for construction failures.
The proposed reforms are twofold. First, the draft law contains proposals to strengthen the legal position of consumers in contract law. Second, the draft law places importance on the privatisation of licensing construction activities. The fundamental idea underpinning these reforms is the need to improve construction safety in The Netherlands. In the past decades, several safety accidents have taken place4 that have raised awareness of the importance of construction safety. Obviously, construction safety is not solely a national issue. All over the world, construction can be fraught with
1 Professor in Private law, specific contracts, at Tilburg Law School, s.vangulijk@uvt.nl.
2 Eerste Kamer, 2016–2017, 34 453, A, https://www.eerstekamer.nl/behandeling/20170221/ gewijzigd_voorstel_van_wet (last accessed 15 August 2018).
3 Eerste Kamer, 2016–2017, 34 453, G, http://www.stichtingibk.nl/2017/07/11/reacties-op-uitstel-wet-kwaliteitsborging/ (last accessed 15 August 2018).
4 See Van Gulijk and Neerhof, Constructieve veiligheid: een onderzoek naar communicatie en borging in bouwprocessen: Voorkomen is beter dan genezen, Den Haag: IBR 2014, Chapter 1. One of the most recent accidents was the collapse of the Eindhoven Airport parking place in 2017. TNO Research showed that construction failures regarding the connection of prefab-elements and extreme heat caused this collapse. The question who is liable for these failures was not yet decided.
Pt 4] Construction Quality Improvement
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