International Construction Law Review


Julian Bailey

Jones Day, London *

Dr Matthew Bell

The University of Melbourne **
“Forty years on, when afar and asunder
Parted are those who are singing today,
When you look back, and forgetfully wonder
What you were like in your work and your play …”1
These words will be familiar – perhaps, uncomfortably so – to many readers of the International Construction Law Review (ICLR). The song the words introduce has been adopted and adapted by schools around the world, obliging their teenaged students to sing them, for well over a century. As with many things in life, the true meaning of the words only becomes apparent as one grows older and has the ability to “look back and forgetfully wonder” at those former years.
In this article, we have had the privilege of looking back at the 40 volumes – comprising (on a conservative estimate) around 1,000 feature articles, 20,000 pages and six million words – which constitutes the first 40 years of the ICLR. Whilst we cannot offer to provide a full summary of that opus, we are able to give some insights here into how the ICLR has played a crucially-important role in both reflecting, and leading, construction law reforms and scholarship:


(1) The Early 1980s: A Construction Law “Big Bang”?

In quantum physics, the “Big Bang” which created the Universe is reckoned to have taken a matter of seconds. In construction law, the “Big Bang” took a little longer, spanning (depending upon how one defines it) the period from 1983 to 1987. We may call it a “Big Bang” because it was during this period that a number of vital, industry-specific publications and institutions emerged.
In 1976, there was an anterior development which lit the fuse for what was to come. A new set of law reports appeared which recognised the emergence of a specialist area of law.2 These were the Building Law Reports (BLR), edited by Dr John Parris.3 In their original conception the cases in the BLR were organised thematically, but quickly they took their present shape, i.e., reporting (unthematically) recent building and engineering cases likely to be of interest to practitioners in the field.
The value of the BLR came in two respects. First, these reports contained some important cases which were not reported anywhere else.4 Secondly, the reports were (and are today) accompanied by commentary – sometimes extensive commentary – from construction law experts.
Let us now move forward to 1983. Notable events on the world stage that year included: Pope John Paul II’s embracing of Polish Solidarity leader Lech Walesa (who months later won the Nobel Peace Prize); President Reagan sending US troops into Grenada; the re-election in the UK of the government led by Margaret Thatcher; the assassination of Philippines opposition leader Benigno Aquino; Yasser Arafat and the Palestinian


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Liberation Organisation being forced to retreat from Lebanon; the USSR’s shooting down of Korean Airlines Flight 007; and the America’s Cup being won for the first time in its history by a non-US yacht, Australia II.
Many of the events of 1983 seem a very long time ago (including to the authors of this article, both of whom were in primary school at the time). Yet, the legacy of many of them remains: Michael Jackson’s “Thriller” released in 1983, remains the biggest selling album of all time; the arcade game “Mario Bros”, launched by Nintendo that year is, in 2023, a blockbuster movie, and US President Biden is today as closely identified with Ray-Ban sunglasses as Tom Cruise was in “Risky Business”.
Likewise, the format and aspirations of the ICLR, launched in October of 1983, are very much with us today. The prospect of reading the ICLR online at i-law.com, as we do now,5 could only then be within the realms of science fiction. However, the “Introduction” to Volume 1 Part 1 is immediately recognisable in 2023 for its elegant typesetting style which carries through to the current edition.6 We have more to say about that in Part II(2) below.
Also in 1983, the Construction Industry Law Letter (CILL) was first published,7 and is still in publication today. By contrast with the ICLR, the CILL was (and still is) largely focused on legal developments in the UK construction industry, and not more widely. It was also published, as it is now, in a shorter format so as to constitute a form of “news bulletin” for those in the construction industry. In today’s hyperconnected world with constant web-based updates via LinkedIn, law firm updates and beyond, it is hard to imagine that, for many people, news of legal developments could take a few weeks to be disseminated in the form of a hard copy publication sent through the post. Yet that is how it was.
One further development in 1983, which has turned into an unmitigated success story on a global scale, was the formation of the Society of Construction Law (UK) (SCL).8 Legend has it that the idea for the Society’s creation came about one evening in the kitchen of John Tackaberry QC, in Kentish Town, London, where attendees were duly assisted with their thought processes by the fruits of Aquitaine. Aptly, ICLR co-general editor Humphrey LLoyd QC became one of the founding members of the SCL.

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Perhaps spurred on by the initial success of the ICLR, a new journal appeared in 1984 – the Construction Law Journal (ConstLJ). The livery of this journal was bright yellow, making it stand out on any bookshelf, perhaps as an intentional contrast to the “Harrods green” of the ICLR. One could possibly view the two journals, both published in England, as potential rivals to each other. Happily, however, the reality was a little different. Whereas the ICLR avowedly adopted an international perspective, the ConstLJ was more focused on construction law developments in the UK. A pacific co-existence was established.
In 1985, a further specialist law report emerged: the Construction Law Reports (ConLRs), published by what is now LexisNexis. Now, people in the construction law world were served with two overlapping but also complementary reports: the BLR may cover one case, which the ConLRs may not, and vice versa. Additionally, cases were being reported at the end of the ConstLJ, and also in the CILL. In an age long before online judgments, construction law practitioners now had a deep pool of recent case law to dive into.
These developments in the UK did not escape the attention of construction lawyers in the antipodes, and in fact gave them inspiration. In 1985 a journal entitled Building and Construction Law was founded in Australia, with John Dorter as its general editor. The journal took a similar approach to that taken in the ConstLJ, namely by publishing substantial articles and also Australian judgments which may not otherwise be reported. This Australian development evidenced a growing interest in construction law which was not confined to the shores of Britain. There was clearly a wider, international curiosity in this field.
We may bookend our “Big Bang” window with one further development, which in its own way was revolutionary. It was the creation of what is now the Centre of Construction Law and Dispute Resolution at King’s College London. The Centre was established in 1987 by Professor John Uff CBE QC. It was unique in being the only tertiary education institution in the British Commonwealth which taught construction law within an integrated Masters-level programme.9 Today there are a number of universities around the globe which teach construction law. Many take their leadership and inspiration from King’s College London.10
Looked at through a lens four decades later, these developments in this five-year period were quite remarkable. New law reports, journals,


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societies and university courses were being created with a singular focus on construction law. This was hardly surprising, as construction litigation and arbitration had increased enormously over a short space of time. Even if the first-instance judges deciding cases were not accorded a high judicial status,11 the fact remained that many big construction cases were proceeding through the courts, with some of them reaching the highest levels on points of law.12 Nonetheless, establishing each of these pillars of the modern edifice of international construction law required vision, collegiality and dedication.
Crucially, however, it had come to be recognised that the field of construction law involved peculiarities not found in other areas of commerce. There was something special about construction, which lent itself to the development of a specialist field of practice. And the field was not parochial or peculiarly Anglo-Saxon in its shape. Legal issues concerning construction and engineering projects exist all over the world. Especially for people involved in international construction projects (whether as in-house counsel, lawyers in international firms, commercial managers or otherwise), the need to understand how construction law “works” in other countries became an imperative. Because of this, there was an obvious need for an international journal which would provide a forum for exposing and discussing the various laws and practices that exist in construction industries across the globe.

(2) ICLR’s First Issue

The ICLR was founded by Humphrey LLoyd QC (as he then was) and David Wightman (a partner in the London firm, Kenneth Brown Baker Baker).13 Theirs was a fruitful alliance and friendship, based on common professional activities and interests. Both had practices in the early 1980s that contained much international work. They both also were involved with regular meetings of the International Bar Association (IBA), where they would interact with construction law practitioners and academics, particularly from Continental Europe. It was largely through their legal practices and work with the IBA that they realised there was an interesting world of construction law beyond the chalk cliffs of Dover.
The IBA provided a lively forum for the production of papers and debates on the major construction law issues of the day. The papers from the IBA forum were not widely circulated or published, however with an appropriate outlet they could be disseminated globally. Another important

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factor at this time, if not a critical one, was the existence of a respected journal covering the fields of maritime and insurance law, namely Lloyd’s Maritime and Commercial Law Quarterly (LMCLQ). The LMCLQ was founded in 1974, and had been successful in garnering interesting articles on international shipping and associated elements of trade (including insurance). It was conceived by the publisher, Philip Littler of Lloyds of London Press, that a similar, international journal could be created in the field of construction law, attracting the contributions and readership of an international audience.
Thus was the ICLR spawned in 1983. Its focus was avowedly an international one. It eschewed the notion of being a provincial, UK-focused publication, which would interest only a domestic audience. Certainly, construction law as a profession was growing rapidly in the UK, with more-and-more construction cases entering the court system, and a specialist area of legal practice was developing. But, with one or two notable exceptions (including the fecund Ian Duncan Wallace QC), the editors of the ICLR sensed that they could not rely on a steady crop of papers from the UK alone, whereas from the international steppe the harvest would be much greater. And so they were proved correct.
There was another reason for taking a broad outlook. There was a concern over what could be perceived as a cultural hegemony: that a UK-focused journal would be saying to the international construction law community: “we know what’s best”. The founding editors of the ICLR knew, first and foremost, that such a conceited mode of thought and presentation was simply wrong.
Moreover, as the editors rightly appreciated, the real benefit of an internationally-focused journal would be to permit people with an international practice to “think outside their box”. Thus, if, for example, an English lawyer read an article in the ICLR regarding construction law in Egypt, the lawyer would be much better informed of potential Egyptian legal issues if instructed for a client in relation to a construction or engineering project or dispute in that country, than if the English lawyer started from a position of no knowledge at all about Egyptian law. If we can seek to identify the greatest achievement of the ICLR in its 40-year history, therefore, it is possibly this: to remind us of the fascinating diversity of construction laws around the world – to take each one of us out of our provincial box.14
These aspirations were explicit in the introduction to the first edition of the ICLR. It proposed that the ICLR “be first and foremost a clearing house


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for views and opinions”, with its two “principal intentions” being to provide a “forum for debate” and to “inform”.15 The editors also stressed:
  • the opportunities for discourse through letters and the provision of short updates by a network of correspondents around the world, noting that “[w]ithout guidance from its subscribers, the [ICLR] will not satisfy their aspirations and our ambitions”;16 and
  • that the primary audience was industry professionals – “readers who may not be qualified as lawyers but who need to keep abreast of legal matters”.17
The editors also made known their appetite for international perspectives. Though acknowledging the English law origin of many construction law norms, and that lawyers in developing countries “look abroad for answers to questions which are new to them or to their legal systems”,18 their aspiration was that “contributors from the UK will overall be in a minority.”19 Indeed, the first edition included a German review to assist in redrafting the FIDIC standard form, which became the widely-used 4th Edition of 1987.20


(1) People and Places

From the outset, the ICLR has benefitted from the involvement of leaders within the international construction law community. For example, in its second volume, an Editorial Advisory Board first appeared, including the likes of Max Abrahamson, Christopher Seppälä and Michael Schneider; in a remarkable illustration of the continuity underpinning the ICLR, the latter two remain on the Board in 2023.
There has also been extraordinary continuity amongst the editorial staff. LLoyd and Wightman were editors in chief from 1983 until 2005; they were joined by Professor Doug Jones AO in 2006 and, after Wightman stepped down the following year, LLoyd carried on with Jones until the 31st Edition in 2014; he remains editor emeritus. In 2015, Chantal-Aimée Doerries KC joined Jones and they remain the two editors in chief. Lloyd’s List Intelligence’s editor, Eleanor Baylis, has likewise epitomised the ICLR’s stable stewardship, having edited the journal since 2012.

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Hundreds of people have written for the ICLR over the years: lawyers, judges, arbitrators, commercial managers, engineers, academics, and those who span a number of those roles. Looking back across the early editions, it was readily evident that the ICLR “walked the talk” of its aspiration to cover jurisdictions well beyond British shores.
An analysis of article coverage on a geographic basis inevitably is prone to inaccuracy; especially, given that, in line with the editors’ original intent, the bulk of the ICLR’s articles offer comparative analyses across a number of jurisdictions. That said, in the pre-Millennium editions, we counted more than 35 articles focused on Continental Europe, more than 30 on Asia (including the USSR/Russia and the Subcontinent), more than 15 on North America, more than 10 on the Middle East and about half a dozen on Australasia. Africa and Latin America, however, featured less in those early years, with fewer than 10 specific articles between them.21 A similar pattern is evident in more recent years: from 2019–2022, European and North American perspectives continued to dominate, though Australasia outstripped Asia during this period.
Whilst the goal of diversity in geographic coverage has been substantially fulfilled, it is striking to observe with the benefit of hindsight how reflective the ICLR has been (until recently, at least), in its personnel and authorship, of the male domination which has characterised the construction industry throughout its history.22 The introduction to the first edition used the male pronoun to refer to readers generically, it was not until April 1985 – after 40 articles had been published by men – that a female author appeared,23 and the first female appointment to the Editorial Advisory Board occurred in 2004, 21 years after the founding of the journal.24 Gender diversity has improved significantly in recent years, however; not only through the appointment of Doerries as co-editor in chief, but also in the authorship of feature articles: in 2022, more than half of these authors were women.

(2) Issues Covered

In geological terms, 40 years is not even the blinking of an eye. But, for humans, and the humanities and social sciences (including the study and practice of construction law), such a period can represent an epoch. As we


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describe below, the four-decade window from 1983 to 2023 has wrought a number of large changes to the landscape of construction law. Above all, however, we must be measured in this description, because the bedrock of this area of law has not been upended or shaken in its architecture or core principles. Indeed, one of the enduring virtues of the ICLR is the way it provides a forum for tracking the often-subtle changes in the law relating to perennially-challenging issues at the heart of construction law such as latent conditions risk, the role of the contract administrator (as variously described), and time-related claims.25
Let us now consider, by way of sample only, three areas of significant change which have been chartered within the ICLR over the past 40 years.

(a) Procurement Methods and Standard Form Contracts

The range of procurement methods has grown, and perhaps even blossomed, over the past 40 years. In 1983, forms of procurement were few in number. “Traditional” and “design and build” were established, but beyond those two major forms, options were limited. Indeed, in the first ever part of the ICLR, Ian Duncan Wallace QC discussed the relatively-novel idea of “turnkey” projects.26 By contrast, in today’s construction and engineering world, we are now blessed with a variety of procurement options and corresponding forms of contract to implement those procurement modes. Moreover, public procurement internationally has been transformed by Public-Private Partnerships (“PPP”).27
Concomitantly, project finance has emerged as a powerful vehicle for delivering countries’ infrastructure needs.28 Collaborative forms of

25 “Bookend” perspectives on these issues can be gained via, e.g.: (latent conditions) Jones, D S, “Latent Condition Disputes – Arbitration v Litigation”, [1984] ICLR 99 and Stephenson, A and Nastasja Suhadolnik, “Improving Risk Allocation for Ground Conditions in Major Subsurface Projects”, [2022] ICLR 301; (contract administrator) Westring, G, “Balance of Power in the FIDIC Contract with Special Emphasis on the Powers of the Engineer”, [1983] ICLR 117 and Franco, G G, “The FIDIC Engineer in Civil Law Countries – An Italian Approach”, [2022] ICLR 246; (time) Perlman, M S, “Contractor’s Claims for Delay”, [1983] ICLR 3 (the very first ICLR article) and Thomas, T, “The Doctrine of Prevention and the Doctrine of Penalties: Uniformity and Freedom of Contract”, [2023] ICLR 43.
26 Wallace, D, “Construction Contracts from the Point of View of the Owner”, [1983] ICLR 16, 18–22.
27 See for example, Frilet, “Underlying Contractual and Legal Conditions of a Successful Private/Public Partnership in the Water Sector”, [1996] ICLR 281; Wilson, D and Bruce, L, “The Private Finance Initiative, Public Procurement and the Construction Industry”, [2000] ICLR 569; Jones, D, “The Development of PPPs in Australia”, [2002] ICLR 333; Delmon, J, “Increasing the Efficiency of Risk Allocation in Project Financed Public Private Partnership (PPP) Transactions by Reducing the Impact of Risk Noise – Part II”, [2015] ICLR 264; Udrescu, E E, “PPP – The Keys to Success”, [2020] ICLR 162; Eyre, R, “Is There a Place for Operator-led Hospital PPP in Australia? An Analysis of the Past, Present and Future”, [2022] ICLR 28; Higgins, H, “US Transportation PPPs: Background, Emerging Trends and the Impacts of Covid-19”, [2022] ICLR 98. Many other ICLR articles could be cited on this topic.

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contracting have been developed.29 The supply of standard forms for all forms of procurement, old and new, has continued at a rapid pace, with FIDIC publishing major forms in 1987, 1999 and 2017.30 The New Engineering Contract (“NEC”) has appeared as a serious player for major infrastructure projects.31 Numerous other standard forms could be mentioned. “Consumer choice” for procurement and contract options is as great as it ever has been in the construction industry.

(b) Dispute Avoidance and Resolution

Choices now abound in relation to dispute avoidance and resolution in construction and engineering projects. Whereas, in 1983, the principal modes of adversarial dispute resolution were arbitration32 and litigation, we now have the good fortune of there being multiple dispute-resolution options which vary in their nature and effect. The appetite – or raw necessity – for greater options was manifest in the mid to late 1980s.33 From the 1990s, “alternative”34 modes of dispute resolution developed and found their

29 See e.g., Gaede, “Partnering: A Common Sense Approach to Preventing and Managing Claims”, [1995] ICLR 72; College, B, “Obligations of Good Faith in Partnering of UK Construction Contracts”, [2000] ICLR 175; Jones, D, “Project Alliances”, [2001] ICLR 411; Cheung, S, Suen, H C H and Bayliss, R F, “The Partnering Experience of MTRC Tseung Kwan O Extension Contract 604”, [2002] ICLR 510; Skeggs, C, “Project Partnering in the International Construction Industry”, [2003] ICLR 456; Chew, A, “Alliancing in Delivery of Major Infrastructure Projects and Outsourcing Services in Australia – An Overview of Legal Issues”, [2004] ICLR 319; Van den Berg, M and Kamminga, P, “Optimising Contracting for Alliances in Infrastructure Projects”, [2006] ICLR 59; Kelly, S and Judd, Y, “Forms, Use and Performance of Collaborative Contracting Models in Australia and the US – Past, Present and Future”, [2022] ICLR 358.
30 A huge number of articles on the FIDIC forms appear in the ICLR. These are collected together in the footnotes of Bailey, J, Construction Law (LPP, 3rd Edition 2020) paragraphs 3.18–3.20.
31 Again, the ICLR contains numerous articles concerning this form: see ibid. paragraph 3.13.
32 Although in relation to arbitration, there is one development during the last four decades (or really the last three) which is notable. This is the increased use of investor-state arbitration as a way of resolving disputes between contractors and states. Indeed, some of the major cases in investor-state arbitration jurisprudence over the past 25 years have involved construction and engineering projects which have run into difficulty: see generally Seppälä, C R, “International Commercial Arbitration and State-Controlled Enterprises: Some Comments on a Recent ICC Conference”, [1984] ICLR 159; Yahiel and Cranston, “Arbitration and Dispute Resolution in the International Construction Industry”, [1985] ICLR 231; Sohail, S B, “Pakistan’s Construction Disputes at ICSID”, [2006] ICLR 247; Uff, J and Uff, A, “The Availability of Treaty Arbitration in Construction”, [2010] ICLR 402; Ceenaeme, B, “ICSID Arbitration as an Option for International Construction Disputes”, [2011] ICLR 220; Pickavance, J and Falkof, G, “Accessing Foreign Investment Protection for International Construction and Engineering Projects”, [2016] ICLR 206; Walker, R and Randhawa, J, “The Resolution of Construction Claims through Investor-state Dispute Settlement: Alternative Opportunities for Relief for International Contractors”, [2019] ICLR 255; Fano, K, “‘Building Bridges’ in Investor-State Arbitration: International Construction Projects and the Protection of Contractual Obligations under Bilateral Investment Treaties in a Post-Brexit World”, [2021] ICLR 284.
33 See Myers, “International Construction Dispute Resolution and New Alternatives”, [1986] ICLR 221; Banks, “Alternative Dispute Resolution: A Return to Basics”, [1988] ICLR 61; Newton, “Alternative Dispute Resolution and the Lawyer”, [1988] ICLR 67.
34 As denoted by the (now dated) nomenclature “Alternative Dispute Resolution” (“ADR”): as Gerber, P and Ong, B have noted (Best Practice in Construction Disputes (LexisNexis, 2013), 220-1), the preferred focus has since the early 2000s been upon which is the “Appropriate” Dispute Resolution mode in the circumstances. Similarly, the 11th Edition of the English Commercial Court Guide (2022) (section G) has introduced a change of terminology – “NDR” or “Negotiated Dispute Resolution” instead of “ADR”, presumably to reflect the (now) mainstream nature of amicable dispute resolution procedures (see also Bott & Co Solicitors Ltd v Ryanair DAC (SC) [2022] UKSC 8; [2023] AC 635; [2022] 2 WLR 634; [2022] 4 All ER 255 at paragraph 60).


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places in the construction industry – taking them from the “alternative” fringes to the “mainstream” by being included in major forms of contract.35 These modern methods of dispute resolution, framed in simple and supple procedures, include mediation,36 contractual adjudication37 and dispute boards of various kinds.38
Spurred on by the imperative of having less expensive and faster forms of dispute resolution for the construction industry than litigation or arbitration, and adapting the idea of contractual adjudication which had been developed in forms of contract, the UK legislature in 1996 passed the Housing Grants, Construction and Regeneration Act so as to, among other things, create a new form of dispute resolution for construction and engineering projects, i.e., statutory adjudication.39 The UK legislation has inspired similar legislation in a number of jurisdictions including Australia,40 Malaysia,41 New Zealand,42 Ireland,43

35 See Turner, “Avoidance and Resolution of Construction Disputes – Prior to and During the Construction Process”, [1994] ICLR 384; Gould, N, “Dispute Resolution in the UK Construction Industry – Processes, Perceptions and Predictions”, [1999] ICLR 574.
36 See e.g., Lightburn, E, “Mediation in International Construction Disputes”, [2000] ICLR 202; Netto, A M, Huei Ping, T E E and Christudason, A, “Med-Arb in the Catbird Seat of ADR”, [2003] ICLR 517.
37 Being a contractual form of adjudication: see McGaw, “Adjudicators, Experts and Keeping out of Court” in Uff and Lavers (eds), Legal Obligations in Construction (Centre of Construction Law, London, 1992), chapter 30.
38 The ICLR has published numerous articles on dispute boards since the mid-1980s, including the following early discussions of dispute boards in relation to construction and engineering projects: Lodigiani, “A ‘Claims Review Board’ as a Way for an Amicable Settlement of Disputes, and other Considerations on the Subject of Claims”, [1986] ICLR 498; Pike, “Dispute Review Boards and Adjudicators”, [1993] ICLR 157; Jaynes, “Dispute Review Boards – Yes!”, [1993] ICLR 452. See generally Bailey, op cit fn 30, paragraphs 23.12–23.14 where the ICLR articles are more fully identified.
39 See LLoyd, H, “Adjudication”, [2001] ICLR 437; Streatfeild-James, D, “Major Construction Projects and Dispute Resolution: Does Adjudication Have a Role to Play?”, [2003] ICLR 483.
42 Construction Contracts Act 2002 (NZ). See also Wallace, D, “HCGRA: A New Zealand Version”, [2002] ICLR 130; Smellie, R, “Construction Contracts Act 2002: The First Case”, [2004] ICLR 363; Smellie, R, “Reform of HGCRA: Does the New Zealand Act Provide Any Useful Precedents?”, [2004] ICLR 475.
43 Construction Contracts Act 2013 (Ireland).

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Singapore44 and Canada.45 It has been said that adjudication under the UK Act:
“… has been a conspicuously successful addition to the range of dispute resolution mechanisms available for use in what used to be an over-adversarial, litigious environment. It builds upon a purely contractual structure for adjudication which was already by 1996 regarded by many in the industry as best practice.”46

(c) Negligence

Thirdly, looking at matters from what may be considered by Continental jurists as an “Anglo-Saxon perspective”, the law of negligence in relation to the construction industry has developed in fluctuating and sometimes radical ways since the mid-1980s, particularly in relation to the issue of whether (and if so, when) a duty of care may be owed in the tort of negligence.
At the time of the ICLR’s inception in 1983, English law contemplated a test for the prima facie imposition of a duty of care which was predicated on foreseeability, including in relation to what was described as “pure economic loss”, which encompassed building defects.47 The consequence was that a council was held to owe a duty of care to a person (with whom the council had no contract), who had a property built by a contractor, because it was reasonably foreseeable that, if the council failed to carry out its checking/inspection duties with reasonable care, the property owner would be likely to suffer a loss (in the form of building defects) if the contractor was deficient in its design or construction of the works.
This approach also led to startling outcomes: that a (nominated) sub-contractor could owe a duty of care to an employer in respect of pure economic loss, giving an employer a direct claim against a sub-contractor, even though as a matter of deliberate arrangement there was no contract between them.48

45 See Reynolds, B, Vogel, S and Little, J, “A Report on the Introduction of Prompt Payment and Adjudication Legislation in the Province of Ontario”, [2019] ICLR 73; Olexiuk, P, Gaston, M, Wong, R 
and Singh, J, “Prompt Payment Movement sweeps across Canada”, [2022] ICLR 435; Glaholt, D W, “Statutory adjudication in Canada” in Nazzini, op cit fn 40, chapter 13.
46 Bresco Electrical Services Ltd (in liquidation) v Michael J Lonsdale (Electrical) Ltd (SC) [2020] UKSC 25; [2020] BLR 497; [2021] 1 All ER 697 at paragraph 10 (and see also at paragraph 60). In more forthright terms, it has been observed in relation to statutory adjudication that “for most construction disputes, it is the only game in town”: John Doyle Construction Ltd (in liquidation) v Erith Contractors Ltd (CA) [2021] EWCA Civ 1452; [2023] BLR 717 at paragraph 29, per Coulson LJ.
47 The case which established this position was the House of Lords’ decision in Anns v Merton London Borough Council (HL) [1978] AC 728; [1977] 2 WLR 1024; [1977] 2 All ER 118.


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By degrees, the tide turned against this expansionist approach to the duty of care question, and by the early 1990s it was abandoned, meaning that reasonable foreseeability of loss was an element but not in itself sufficient for the imposition of a duty of care under English law.49 Australia’s common law has, after a brief foray during the 1990s and early 2000s which enlarged the doorway to negligence clams, adopted an approach broadly consonant with England’s.50 By contrast, in each of Canada,51 New Zealand52 and Singapore,53 and in varying degrees of emphasis, foreseeability of harm, injury or loss is still a predominating factor for a duty of care. Notwithstanding, the position in England has retreated even further so that, on the current authority of the English Court of Appeal, a contractor does not ordinarily owe a concurrent, parallel duty of care to an employer in the tort of negligence in relation to pure economic loss.54 It may not be unfair to describe the common law of negligence in this area as unacceptably incoherent, in turn prompting legislative interventions which themselves can further complicate parties’ rights and liabilities.55
This fleeting survey locates some of the fault zones in our field of law, where seismic activity has been significant. Yet we should also recognise that the overwhelming legal geology of construction law is stable, and for the past four decades has mainly seen incremental developments, as opposed to revolutions.

49 Murphy v Brentwood District Council (HL) [1991] 1 AC 398; [1990] 2 All ER 908.
52 Invercargill City Council v Hamlin (PC) (1996) 78 BLR 78; [1996] AC 624; [1996] 1 All ER 756. See also Smellie, R, “Keeping it Simple: Going It Alone”, [1986] ICLR 480; Smellie, R, “Murphy’s Law”, [1991] ICLR 289; Smellie, R, “Compensation for Latent Building Defects in New Zealand”, [1991] ICLR 370; Smellie, R, “Murphy – A Response from the High Court of New Zealand”, [1992] ICLR 237; Kennedy-Grant, T, “The Law of Negligence in New Zealand”, [2019] ICLR 138; et al, op cit fn 50.
53 Spandeck Engineering (S) Pte Ltd v Defence Science and Technology Agency [2007] 4 SLR(R) 100; [2007] SGCA 37. For commentary considering the position in Singapore pre-Spandeck, see Lavers and Robinson, “Building Control: A Review of the Singapore Approach”, [1990] ICLR 111.

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(3) Scholarship

Philip Bruner has characterised the attitude of academia towards construction law as one of “benign neglect”, a situation he ascribes to factors including the “unwillingness of legal academicians to master the factual complexities of construction and the legal complexities created by its numerous disjointed contractual and legal relationships”.56 Bruner is correct in his assessment (as is his acknowledgement that there is a small number of construction law courses taught around the world); at least compared to the importance of construction to the economies of countries around the world, there remains a “dearth of construction law courses in law schools”.57
For those few courses teaching construction law, the ICLR has been a boon. It has provided a place for teachers to publish their research (the process made more rigorous and therefore attractive to academics in recent years by the implementation of a peer review board), and for students to have access to cutting-edge thinking in the international construction law community for their own research and learning.
The ICLR has also contributed to construction law scholarship by establishing itself as a leading journal in which to publish prize-winning essays, including for the Society of Construction Law (UK)’s Hudson Prize, the Society of Construction Law Australia’s Brooking Prize, and the European Society of Construction Law’s Thesis Competition.58 As authors who have been beneficiaries of this process, which has been fostered through pro-active engagement by the editors-in-chief over the years, we would observe that the opportunity to publish these papers in the ICLR not only amplifies their thinking amongst a wider audience but also inevitably results in further improvements to the originally-submitted version.

56 “Construction Law: Its Historical Origins and its Twentieth Century Emergence as a Major Field of Modern American and International Legal Practice”, (2022) 75 Arkansas Law Review 207, 233–4.
57 Gerber, P, “The Teaching of Construction Law and the Practice of Construction Law: Never the Twain shall meet?”, (2010) 20 Legal Education Review 59, 60 (cited in Bruner, ibid., 234).
58 Prize-winning papers published in the ICLR include: (Hudson) Cheung, A, “Triple Point Technology: Pointing to Confusion”, [2020] ICLR 130; Bell, M, “How is that Even Possible? Raising Construction Regulation from Grenfell Tower”, [2018] ICLR 334; Bailey, J, “What Lies Beneath”, [2007] ICLR 394; Britton, P, “Oxalic Acid and the Applicable Law: The Rome Convention and Construction”, [2003] ICLR 381; (Brooking) Smiley, A and Rawal, R, “Locked behind Time Bars”, [2018] ICLR 60; Ho, T, “Against Cavendish: Towards a Procedural Conception of the Penalty Doctrine”, [2016] ICLR 452; Thomas, T, “Alliancing Contracts and Fiduciary Duties: Trust and Confidence in Relationship Contracting”, [2011] ICLR 364; (ESCL) Rubanovici, C, “The Applicability of FIDIC Contracts in Offshore Wind Projects”, [2022] ICLR 210; Ibbotson, N, “Do Design Competitions Comply with the Law?”, [2021] ICLR 172; Christmann, J, “How much Scope Remains for the Legislature in Reforming Section 651 BGB? German Work Supply Contracts in Light of Supranational Law”, [2015] ICLR 214; Stehle, T, “Rights of Compensation in German Law for Delay in the Award of a Public Sector Contract”, [2014] ICLR 230. In addition, numerous runner-up or commended papers have been published in the ICLR.


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Similarly, the ICLR has provided a deeply-valued publishing forum for the results of research undertaken by construction law students around the world (with that research often making use of ICLR articles, forming an academic “virtuous circle”). For example, no fewer than 14 articles from construction law students at Melbourne Law School have been published in the ICLR over the past two decades.59

(4) Institutions

A casual reader of back-issues of the ICLR picking up volumes at random will immediately encounter a range of initialisms and acronyms: FIDIC (Fédération Internationale des Ingenieurs-Conseils), ICC (International Chamber of Commerce), HKIAC (Hong Kong International Arbitration Centre), DRBF (Dispute Resolution Board Foundation), SCL (Society of Construction Law) and many others. Though these may be bewildering to the uninitiated, they speak to the strong link, for mutual benefit, between the ICLR and important bodies in international contracting, dispute resolution and avoidance, the burgeoning number of SCLs, and beyond.
These links were established from the outset, with the inclusion in Volumes 1–2 of the ICLR of feature articles on the FIDIC contracts (contributing to thinking for the landmark publication of the 1987 “4th Edition” forms),60 ICC arbitration,61 Hong Kong arbitration (anticipating the founding of the HKIAC the following year).62 The way in which these professional institutions (and others noted in Part II(1) above) interact, with the ICLR as a key facilitating “cog in the machine”, has been argued to constitute a transnational “private legal system” of the type which many successful commercial communities have fostered – often with relatively little public attention – to promote their mutual benefit.63


(1) ICLR as a “Crystal Ball”

The ICLR’s stated ambition to be a “clearing house for views and opinions” has never limited it to simply looking back or to describing current law and practice. Its first volume included an article entitled “Gazing Backwards

Pt 4] The International Construction Law Review, 1983–2023


into a Crystal Ball”,64 and many of the ICLR’s articles have proven prescient in foreseeing (sometimes with optimism, sometimes warily) important developments. In the late 1980s and early 1990s, for example, there were many articles which with hindsight have turned out to herald far-reaching reforms, including on risk,65 dispute avoidance,66 standard form contracts,67 arbitration,68 technology-aided disputes,69 and building regulation.70
More recent editions of the ICLR confirm that the ambition to anticipate reforms (and, indeed, to foster them) remains at the heart of the journal’s mission. Without wishing to single out any contributions in this regard, it is surely serendipitous that there appears in the 40th Volume an article by Christopher Seppälä about the latest amendments to the FIDIC contracts,71 bearing in mind that there was an article recommending changes to the then-current FIDIC Conditions in the very first volume.72
This confluence serves to remind us that the cause of construction law reform and scholarship is – perhaps, like the painting of one of the magnificent bridges featured in the ICLR from time to time73 – a never-ending process requiring constant diligence and vigilance … at least, until such time as ChatGPT and its ilk makes all of us redundant!

(2) Life Begins at Forty?

“Forty years on, growing older and older,
Shorter in wind, as in memory long,

64 Chilvers, D R [1984] ICLR 180.
65 The perspective provided by Max Abrahamson in his Volume 1 contribution “Risk Management” [1983] ICLR 241 remains seminal to risk debates.
66 For example, Barnes, M, “Prevention is Better than Dispute”, [1986] ICLR 196, anticipating the publication of the New Engineering Contract in 1987; Professor John Uff KC has noted how the NEC subsequently interacted with the Latham Inquiry to provide a platform “seen as the epitome of good practice and indeed the way forward for the UK Construction Industry”: “Is the Construction Industry Waving or Drowning?” (King’s College Construction Law Association Sweet & Maxwell 20th Annual Lecture, 2017), 5.
67 For example, Corbett, E, “FIDIC 5th or a New Style Red Book?”, [1993] ICLR 288, amongst other articles, anticipated the detailed re-think of the FIDIC contracts which in 1997 produced the “1st Edition” forms.
68 For example, Lim, P G, “The Regional Centre for Arbitration at Kuala Lumpur, Malaysia”, [1988] ICLR 53; now firmly established as the Asian International Arbitration Centre.
69 For example, Fletcher, A, “Computerised Litigation Support in Construction Cases”, [1991] ICLR 183.
70 For example, Payne, M, “The Privatisation of Building Control in the United Kingdom”, [1991] ICLR 117, charting a development which is now seen as having contributed to the building safety crisis experienced in the wake of the 2017 Grenfell Tower catastrophe: see e.g., Bell et al, op cit fn 55.
71 “Welcome Amendments to FIDIC’s 2017 Contracts”, [2023] ICLR 131. Mr Seppälä has also recently published a book: The FIDIC Red Book Contract: An International Clause-by-Clause Commentary (Wolters Kluwer, 2023).
72 Goedel, op cit fn 20.
73 See e.g., Kansmark, J, “The Öresund Link Project”, [1996] ICLR 151; it was estimated in 2020 that painting that bridge would take 400,000 litres of paint and 13 years (Nikel, D, “Iconic Øresund Bridge Linking Denmark and Sweden Gets a 13-Year Paint Job” Forbes (1 March 2020) https://www.forbes.com/sites/davidnikel/2020/03/01/iconic-resund-bridge-linking-denmark--sweden-gets-a-13-year-paint-job last accessed 14 August 2023).


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Feeble of foot, and rheumatic of shoulder,
What will it help you that once you were strong?”
Forty Years On’s final verse strikes a somewhat depressing note, and one which hardly seems likely to make youthful students look forward to their more mature years. By contrast, the rude health of the ICLR after 40 years should fill members of the international construction law community – whatever our ages – with real optimism. Thus, it is probably better to leave the last word to Dave and the Dynamos, a band which had a number-one song in New Zealand in 1983, “Life Begins at Forty”: “you may be forty but you can’t stop rocking to the beat!”
Happily, unlike Dave and the Dynamos, the ICLR has proved to be much more than a one-hit wonder. With gratitude, we wish the Review and everyone involved with it many happy returns as it looks forward to a bright future continuing to provide the international construction law community with an immensely valuable “clearing house”, and so much else besides.

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