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GOOD FAITH AND FIDUCIARY OBLIGATIONS IN ALLIANCE CONTRACTS

International Construction Law Review

GOOD FAITH AND FIDUCIARY OBLIGATIONS IN ALLIANCE CONTRACTS

JESSICA TWOMBLEY, SOLICITOR, SENIOR LECTURER IN LAW

Centre of Construction Law and Dispute Resolution,
Kings College London
Email: jessica.twombley@kcl.ac.uk

SYNOPSIS

This paper discusses good faith clauses in alliance contracts and other forms of “relational contracts”, arguing that relational contract theory has begun to feed into the wider legal consciousness and that relational contracts are now being recognised and analysed within context by the courts in accordance with Macneil’s relational method. It is proposed that good faith in a relational contract leads to a wider definitional discretion which is enhanced by contextual analysis. Under this analysis, it is argued that good faith obligations may lead to fiduciary obligations. It concludes by examining what this might mean for the contracting parties.

INTRODUCTION

This paper draws on academic and judicial commentary within the sphere of private law and more specifically, construction law, to posit that alliance contracts are “relational” and considers what conclusions may be drawn from this identification. The proposal is that, as relational contracts, alliance contracts engender new forms of normative contractual behaviour which are then open to relational methods of analysis now being employed by courts in many common law jurisdictions.1 It is proposed here that the traditional approach of commercial self-interest evinced by contracting parties is inimical to the collaborative organisation of alliancing contracts2 and, further, that these two supposedly opposing positions may be
Pt 4] Good Faith and Fiduciary Obligations in Alliance Contracts

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