CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
In this first Part of International Construction Law Review for 2022, we are pleased to present a diverse range of articles which cover the lifecycle of major infrastructure projects. The ability for such projects to assist in global recovery efforts has been much lauded. Such zeal, however, inevitably raises timeless questions. How should such works be financed? How is liability to be allocated and risk mitigated? And finally, where disputes do arise, how can they be most efficiently resolved? Each of these questions is touched on in this Part, as the prospect of rebuilding is imbued with a new enthusiasm for innovating practice.
We begin this Part with Mikal Brøndmo’s article “Disruption Claims – A Two-Step Causation Requirement”. The article provides an insightful comparative discussion of disruption analysis under the English, Swedish and Norwegian legal system. The notion of two-step causation stems from Norwegian law, under which, to establish disruption, evidence of inefficiency as a result of circumstances attributable to the employer must first be proven. It must then be demonstrated that the resulting inefficiency caused the additional costs claimed. The article contends that this form of analysis should be used in English and Swedish legal systems to assist in identifying and substantiating factual causation, as a means to better assess claims. Doing so, it is argued, will not only clarify the circumstances in which a disruption claim arises but additionally enhance the predictability, and efficiency of disruption analysis.
Next, Rebecca Eyers’ article “Is There a Place for the Operator-Led Hospital PPP in Australia? An Analysis of the Past, Present and Future” takes us to the leading edge of contemporary Public-Private Partnership discussion, examining the viability of operator-led models. The article focuses on the suitability of such a model to provide public health infrastructure in Australia. The history of Public-Private Partnerships in financing public health infrastructure in Australia is first discussed. It is argued that the reforms to Public-Private Partnerships over time have not allayed underlying concerns, as to the risks presented. This conclusion is supported by a detailed analysis of the findings of the 2020 New South Wales Parliamentary inquiry into the performance of the New South Wales Northern Beaches Hospital, which utilised an operator-led model.
“Insolvency Issues in the Construction Sector and How to Manage them in a Global Context”, by Frédéric Gillion and Toshima Issur, then examines the issue of insolvency in three contexts: the insolvency of a contractor/employer during a project; insolvency in the joint-venture context; and dispute resolution in the context of insolvency. The issue of managing insolvency risk is an intrinsic component of construction work, which has been clearly heightened by the effects of the Covid-19 pandemic. The article