International Construction Law: An Overview
Page 621
Subject Index
- American Institute of Architects (AIA) Family of Contracts 369–70
- amicable settlement 41
- apparent agency 250
- applicable law: assignment of rights 17;
- capacity 13;
- chosen law 3–4;
- combined governing laws 4–5;
- construction contracts 20–2;
- decennial liability 19;
- discharge 16–17;
- essential validity 14–15;
- formal validity 14;
- formation 13;
- governing law 6–7, 9–11;
- impliedly chosen law 8–9;
- interpretation and contract effect 15;
- law/legal regime, incorporation of 6;
- mode of performance 16;
- non-contractual liability 12;
- non-national law 5–6;
- obligation 16;
- overriding mandatory provisions 19–20;
- party choice, restrictions on 7–8;
- property, effects on 18;
- renvoi 11–12;
- Rome I Regulation 18, 20–2;
- third party rights 17–18
- ARGE model contract 143–4
- Australia, English Common Law 55–7
- Brazil: Constitutional Amendments 401;
- building contract, forms of 86–8
- Canadian Construction Forms 371
- Channel Tunnel project 5
- Chinese law: bonds and guarantee 277–8;
- changed circumstance 259;
- Chinese Civil Code 242–64;
- compensation for damages 263;
- Constitution 239;
- Constitutional law 239–42;
- construction project contract model text 265–6;
- consultant's role and liability 282–3;
- contract interpretation 264;
- contractor 281;
- cost-plus contract 275;
- Custom interpretation 265;
- defects liability and limitation 290;
- delay and disruption 292–4;
- design obligations 278–9;
- employer 280–1;
- Etiquette and Laws 236;
- goal interpretation 264;
- labour law issues 284–7;
- liquidated damages 263;
- lump sum contract 273–4;
- material and workmanship 283–4;
- Nationalism Supreme of Emperor Power 236;
- No Independent Jurisdiction 236;
- offset 261;
- Opium War of 1840 to Revolution of 1911 237;
- payment 288–9;
- PRC in 1949 to Late 1990s 237–8;
- procurement and tendering 265–6;
- Republic Era (1912–1949) 237;
- rescinding 260;
- semantic interpretation 264;
- subcontracting 283;
- unit price contract 274–5;
- variations 291–2;
- whole interpretation 264
- claims and dispute resolution, FIDIC: “amicable settlement” 41;
- competence 25
- compulsory insurance 223
- consortium 143–4
- construction insurance mechanism 267
- construction law principles: claims 121–2;
- construction contracts 90–2;
- consultants’ contract administration liability 99;
- consultants’ design responsibility 97–9;
- consultants’ roles and liability 97;
- contract pricing and payment 102–5;
- defects liability 110–12;
- delay and disruption 115–16;
- design obligations 94–6;
- dispute resolution 124–5;
- duty to warn 96–7;
- employer and contractor 92–4;
- forms of security, bonds and guarantees 119–21;
- insurance 117–18;
- labour law considerations 106–7;
- liquidated damages 117;
- material and workmanship 105–6;
- performance and Taking-Over 107–10;
- procurement and tendering 88–9;
- restriction/exclusion, liability 112–13;
- sub-contracts 100–1;
- suspension and termination 118–19;
- time-bar provisions 122–4;
- types of contract (unit price, lump sum, etc.) 89–90;
- unforeseen physical conditions 101–2;
- variations 114–15
- construction manager at risk (“CMAR”) 376
- construction manager not at risk (“CMNAR”) 376
- construction (design and management) regulations and related legislation: Latham Report 129–30;
- construction scheme 129
- consultation and determination mechanism 267
- Contract Agreement 29
- contract law: agency 67–8;
- breach of contract 78–80;
- capacity 65–6;
- common law remedies 80–1;
- consideration 66–7;
- contents of contract 68–70;
- duress and undue influence 74–6;
- equitable remedies 81–2;
- formalities 66;
- formation of 63–4;
- frustration 78;
- illegality 74;
- legal relations 65;
- limitation, exclusion of remedies 83–5;
- offer and acceptance 64–5;
- performance of 77–8;
- remedies agreed by parties 82–3;
- third parties, rights and liabilities of 76–7;
- unfair contract terms 70–1;
- vitiating factors 71–3
- contractor's claims 40–1
- contract price and payment: fundamental principles 152–3;
- contractual interpretation 84–5
- corruption 26
- cost-plus contract 141
- counterargument right, simultaneous performance 257
- customary law 54
- decennial liability 19, 341–2
- Defective Premises Act 1972 94
- defect liability period mechanism 267
- defences 168–9
- delegated laws 402
- demand rectification 155
- Denmark, AB Standard Contracts 476–9
- detailed lump sum contract 138–9
- Dispute Adjudication Agreement (DAA) 48
- Dispute Adjudication Board (DAB) 40, 42–3, 47–8
- dispute avoidance 44–5
- dispute review mechanism 268
- domestic statute 53
- double compensation mechanism 268
- down payment guarantee 226
- Ejusdem Generis Doctrine 367
- employer and contractor: architect engineer and general contractor/architect engineer and management contractor 143;
- Employer's Claims 40
- Engineering Advancement Association of Japan (ENAA) model forms 62
- English Common Law: Australia 55–7;
- common law 53–4;
- construction law principles 88–125;
- construction (design and management) regulations and related legislation 125–31;
- contract law 63–85;
- customary law 54;
- defects notification period 61;
- equity 54;
- EU Law 53;
- Hong Kong 58–9;
- impartial contract administrator (“Engineer” in FIDIC Forms) 60–1;
- international law 54;
- National Standard Forms of Contracts 85–8;
- on other Countries/Jurisdictions 59–63;
- Singapore 57–8;
- sources of law 53;
- statute 53;
- time bar clause 61
- equitable estoppel 608–9
- equity 54
- essential validity 14–15
- European Convention on International Commercial Arbitration 11
- FIDIC: claims and disputes – Clause 20 36–50;
- code of ethics 24–5;
- competence 25;
- conditions of Contract 29;
- Contract Agreement 29;
- Contract Participants and their Duties – Clauses 2–4 34;
- Contracts Committee 27, 49–50;
- corruption 26;
- design and resources – Clauses 5–7, 34;
- documents 30;
- Engineer, role of 35–6;
- evolution, of FIDIC Contracts 27–8;
- Executive Committee 26;
- fairness to others 25–6;
- General Provisions – Clause 1 34;
- history of 24;
- impartiality 25;
- integrity 25;
- Letter of Acceptance 29;
- Payment and Variations – Clauses 12 (RB)/13 (YB/SB)–14 34;
- rainbow suite of contracts 28–9;
- risk, insurance, and Force Majeure – Clauses 17–19 34–5;
- risk distribution 30–2;
- Secretariat 26;
- society and consulting industry responsibility 25;
- Specialist Committees 26;
- Task Groups 27;
- Tender/Letter of Tender 29–30;
- Termination – Clauses 15–16 34;
- testing, Taking-Over and defects liability – Clauses 9–11 (RB)/12 (YB/SB) 34;
- time – Clause 8 34
- Finland 481
- fixed contractual procedures 45–6
- formal validity 14
- French Law (Napoleonic): after taking over (Réception) 227–8;
- bonds and guarantees 226;
- breach 201;
- concession award notice 230;
- Construction Contracts 206–7;
- consultant's role and liability 212–13;
- contract validity 181;
- defects liability 220;
- delay and disruption 221–2;
- design obligations 210;
- disputes – adjudication and arbitration 228–9;
- duty to inform 183;
- duty to warn/check/review 210–11;
- employer and contractor 211–12;
- equitable case law, public contracts 232;
- express and implied terms 195;
- formalities 182;
- forms of security 226;
- history of 178;
- Labour Law Considerations 216–17;
- legal relationship 181–2;
- limitation of liability 221;
- material and workmanship 216;
- negotiations 182;
- non-performance 199–200;
- offer and acceptance 181;
- outcome-based contract 229;
- performance, contract 199;
- performance and taking-over 217–18;
- preliminary agreements (avant-contrats) 182–3;
- private construction contracts 207–8, 214, 218–19, 224–5;
- proposal and award of contract 231;
- public construction contracts 215, 225;
- public contracts 183–95;
- remedies 203;
- representation 182;
- rights and liabilities 198;
- selection of candidates 230;
- Standard Form for Private Contracts (CCAG Privé) 204–5;
- Standard Forms for Public Contracts (CCAG) 205–6;
- subcontracting 213;
- before taking over (Réception) 226–7;
- termination 201–2, 225;
- third parties 195;
- time-bar provisions 228;
- unfair contract terms 195;
- unforeseeable physical conditions 215–16;
- variations 221
- `French Law (Napoleonic): Labour Law Considerations 216–17
- GCC law: agency 322–3;
- alternative dispute resolution 343–4;
- breach of contract, remedy for 335–7;
- capacity 320–2;
- decennial liability 341–2;
- duress 327–8;
- establishment and licensing iss 342–3;
- formalities 322;
- good faith obligations 325–6;
- interest and financing charges 340–1;
- interpretation of contracts 337–8;
- Islamic financing technique 344–5;
- legal relations, intention to create 320;
- merger 333;
- misrepresentation and gross disparity 328–9;
- mistake 327;
- National Construction Law and International Forms 345;
- offer and acceptance 315–20;
- performance of contract 331;
- public procurement and tender laws 338–9;
- set-off 332–3;
- sources of law 315;
- standard form construction contracts 339;
- substitute performance 331–2;
- termination 333–5;
- terms of contract 323–4;
- third parties, rights and liabilities of 329–31;
- unfair contract terms 324–5
- General Conditions (GCs) 45
- General Conditions of Dispute Adjudication Agreement (GCDAA) 48
- General Terms and Conditions Act (GTCA) 137
- German Civil law 39
- German law: building owner's liability insurance 162;
- claims 170–3;
- construction contract 135–7;
- construction law issues 174–5;
- consultant's role and liability 144–6;
- contractor, termination by 166–7;
- contractor's all-risk insurance 162–3;
- contract price and payment 152–4;
- defects liability 154–6;
- delay and disruption 158–9;
- design obligations 141;
- disputes, adjudication and arbitration 173–4;
- employer, termination by 164–6;
- employer and contractor 142–4;
- forms of security 167–70;
- labour law considerations 148–9;
- liability, limitation of 156;
- liquidated damages and other damages 160–1;
- Lump Sum Contract 138–41;
- mandatory insurance 162;
- material and workmanship 148;
- National Construction Law and International Forms (Emphasis FIDIC) 175;
- owner's liability insurance, building 162;
- performance and Taking-Over 149–52;
- procurement and tendering 134;
- sub-contracts 146;
- success of works, variations relating to 157–8;
- suspension 163–4;
- third-party liability insurance 162;
- unforeseeable physical conditions 146–8;
- Unit Price Contract 138;
- VOB/B on Variations, provisions of 156–7;
- warn/check/review, duty to 141–2
- guaranteed maximum price (GMP) contract 141
- Hong Kong: English Common Law 58–9
- Housing Grants Construction and Regeneration Act 1996 (the HGCR Act) 127–31
- Implied Contract Doctrine 612–13
- Institution of Chemical Engineers (IChemE) 87
- International Construction Arbitration: “ad hoc” arbitration 600;
- agency 608;
- “alter ego” 606;
- appellate arbitration 615–17;
- arbitral tribunal, powers of 601;
- arbitrators, selection of 601;
- assumption 605;
- business and personal relationships 593;
- construction's technological complexity 588–9;
- contract interpretation, common law and civil law jurisdictions 597–9;
- court systems 592–3;
- equitable estoppel 608–9;
- foreign arbitrable awards 588;
- “good faith” 613–15;
- implied consent 612–13;
- incorporation by reference 607;
- “inextricable nexus” 610;
- judicialization of arbitration 593–5;
- judiciary as “separate breed of animal” 590;
- labour crafts and professional disciplines 589–90;
- language of 600;
- legal assignment 609;
- modern treaties 587;
- multiple arbitrations, consolidation of 601–3;
- non-signatory parties, joinder of 604–5;
- opinion testimony, of experts 591–2;
- origins of 585–6;
- practical arbitration process 617–18;
- “procedural law,” of arbitration 599–600;
- professional conduct of counsel 618–19;
- scope and types, arbitrable issues 596;
- “seat,” of arbitration 599–600;
- separate pending arbitrations, consolidation of 603–4;
- subrogation 611;
- substantive law, of contract 597;
- successor in interest 610;
- third party beneficiary 606–7;
- traditional interpretative differences, common law and civil law jurisdictions 597;
- “vouching-in” rights against indemnitors 611–12;
- waiver 611
- international construction contracts see FIDIC “inextricable nexus” 610
- Islamic financing technique 344–5
- Joint Contracts Tribunal (JCT) 86
- judicial termination 202–3
- Kazakhstan 577–80
- Latent Damage Act 1986 111
- Latham Report 129–30
- Law of Property Act 1925 (LPA) 76
- Lock-out 172
- Louisiana 351
- malicious collusion 253
- mandatory insurance 162
- merger 333
- Model Law 11
- Mutual guarantee mechanism 266
- New Engineering Contract (NEC) 86–7
- no-lien clause: duress and undue influence 357–8;
- non-compulsory insurance 224
- non-contractual liability 12
- non-national law 5–6
- non-signatories 605, 608–9
- Nordic law: adjudication and arbitration 521–5;
- agency 464–5;
- bonds and guarantees 517–19;
- breach of contract 471–2;
- capacity 463–4;
- construction contracts, nature of 484–5;
- construction law issues 525;
- consultant's role and liability 489–90;
- contract interpretation 476;
- contractor's property 512;
- contract price and payment 497–9;
- defects liability 499–502;
- delay and disruption 505–6;
- Denmark, AB Standard Contracts 476–9;
- design obligations 485;
- duress and undue influence 468–9;
- duty to warn/check/review 486–8;
- employer and contractor 488–9;
- employer's property, damages to 512;
- express and implied terms 465;
- Finland 481;
- formalities 464;
- history of 460–2;
- illegality 467;
- insurance 508–10;
- labour law considerations 494–5;
- land construction, NS family of contracts 479–80;
- liability, limitations of 502–3;
- limitation, on remedies 475;
- liquidated damages 507–8;
- material and workmanship 493–4;
- misrepresentation and mistake 466–7;
- National vs. International Construction Law, in Scandinavia 526;
- Norway, distinct standards for onshore and offshore construction 479;
- offer and acceptance 462–3;
- offshore construction, NF family of contracts 480–1;
- performance 470–1;
- performance and Taking Over 495–6;
- private procurement 483;
- public procurement 482–3;
- remedies at law 473–5;
- remedies under contract 472–3;
- subcontracting 490–1;
- suspension 513–15;
- Sweden, AB Standards 481;
- termination 515–17;
- third parties, rights and liabilities of 469–70;
- third parties properties, damages to 513;
- time-bar provisions 520–1;
- unconscionability 469;
- unforeseeable physical ground conditions 491–3;
- variations 503–5;
- works, damages to 511–12
- North American Construction Law: actual/owner acknowledged changes 384;
- adjudication and arbitration 392–3;
- agency 352;
- arbitration 349;
- attorneys’ fees 389;
- bonds and guarantees 387–8;
- breach 359–60;
- Canadian Construction Forms 371;
- Canadian Construction Law 350;
- capacity 352;
- cardinal changes 384–5;
- claims 390;
- compensable vs. non-compensable delay 391;
- compensatory damages 364;
- concurrent delays 391–2;
- consensus documents 370;
- consideration 352–3;
- construction contract 373;
- Construction Law, in Canada 393–4;
- constructive changes 384;
- consultant's role and liability 376;
- contractor 375–6;
- contract price and payment 380;
- contractual limitations 366;
- convenience, termination for 360–2, 386–7;
- default clause, termination for 362–3, 387;
- defects liability 380–1;
- delay clauses, no damages for 354–5;
- Design Build Institute of America (DBIA) documents 371;
- design obligations 373–4;
- duty to warn/check/review 374–5;
- employer 375;
- Engineers Joint Contract Documents Committee (EJCDC) 370;
- excusable vs. inexcusable delay 390–1;
- express and implied terms 353;
- Federal Systems 348;
- FIDIC forms of contract 394;
- foreseeability 366;
- formalities 352;
- frustration 358–9;
- indemnity bonds 389;
- industrial construction 371;
- insurance 385–6;
- interpretation of contracts 367–8;
- labour and materials payment bond 388;
- labour law considerations 378–9;
- laws affecting all contracts 348;
- laws affecting Direct US Government Construction Contracts 349;
- legal relationships, intention to create 352;
- limitations, of liability 381–3;
- liquidated damages 385, 389;
- Louisiana 351;
- “no-lien clause” 355–64;
- offer and acceptance 351–2;
- pay-if-paid/pay-when paid clauses 353–4;
- performance and take-over 358, 379–80;
- performance bond 388;
- private procurement and tendering 372;
- procurement and tendering 371;
- public procurement and tendering 371–2;
- punitive damages 365;
- quantum meruit 365;
- Quebec 351;
- reasonableness 366;
- remedies 363–4;
- specific performance 364;
- state law 350;
- statute of limitations 389–90;
- subcontracting 376–7;
- suspension 386;
- time-bar provisions 392;
- unfair contract terms 353;
- unforeseeable physical conditions 377–8;
- unjust enrichment 365;
- US Federal law 348;
- US Government Direct Contracts 369;
- variations (changes) 383–4;
- warranty 378
- nullity 198
- partnering contracts 140
- passing of laws 403
- payment obligation 16
- “piecemeal” resolution 602
- Project Partnering Contract 2000 (PPC2000) 62
- public contracts, French law: competitive dialogue 188–9;
- contract notice 190;
- design contests 189;
- legal framework 184–5;
- mandatory procedures 185–6;
- negotiated procedure 186–8;
- open/restricted call, tenders 187;
- performance in 200;
- public law on contract terms 196;
- sanction 198;
- substantial modification of contract 196–7;
- tenders 189;
- transparency requirements 190;
- vitiating factors 197–8
- Public Sector Standard Conditions of Contract in 1995 (PSSCOC) 63
- Quality-Based Selection (QBS) 25
- quantum meruit 365
- Quebec 351
- Real Estate Developer's Association of Singapore (REDAS) 62
- reasonable price adjustment mechanism 266
- reciprocity remedies 473
- relative nullity 198
- renvoi 11–12
- retention 170
- risk allocation 31;
- Royal Institute of British Architects (RIBA) 86
- Russian (and Central Asian) Law: accidental destruction, risk of 541–2;
- adjudication and arbitration 573–5;
- bonds and guarantees 571–2;
- breach of contract 545;
- conditions, of contract 531–2;
- construction contract 553–4;
- construction law, in certain central asian countries 577–80;
- construction law issues 575–7;
- construction work and supply contract 542–4;
- consultant's role and liability 556–7;
- delivery and acceptance, of work 544–5;
- design obligations 554–5;
- duty to warn/check/review 555;
- employer and contractor 555–6;
- express and implied terms 536–7;
- formalities 534–6;
- history of 528–31;
- illegality 539;
- limitation, on remedies 550–2;
- lump sum contract 553;
- non-concluded contract 538;
- obligations 540–1;
- performance of contract 540;
- price 534;
- procurement and tendering 553;
- remedies agreed by parties 549–50;
- remedies under contract 547–8;
- remedies under law 548–9;
- rights of ownership 541–2;
- standard form of national contracts 552–3;
- subcontracting 557–8;
- technical documentation 532–3;
- termination 545–6;
- third parties, rights and liabilities of 539–40;
- time-bar provisions 573;
- time limits 533–4;
- unfair contractual terms 537;
- unforeseeable physical conditions 558–9;
- unit price contract 553
- Scandinavia, National vs. International Construction Law 526
- self-help rectification 155
- set-off 332–3
- Singapore: English Common Law 57–8
- snagging list 110
- South America: Brazilian Legal System 396–8;
- breach 421–2;
- capacity 406;
- Chilean Legal System 398–400, 403–4;
- claims 452–3;
- construction contracts 433–4;
- consultant's role and liability 436–7;
- contract price and payment 442–3;
- defects liability 443–4;
- delay and disruption 446–7;
- design obligations 434–5;
- duty to warn/check/review 435–6;
- express and implied terms 410;
- Force Majeure 419–21;
- formalities 409–10;
- formation of contract 405–6;
- insurance 449;
- interpretation, of contracts 430–1;
- judicial review 426–9;
- labour law considerations 440;
- legal relations, offer and acceptance, intention to create 406–9;
- liability, limitation of 444;
- limitation, on contractual terms 410–11;
- limitation, on remedies 429–30;
- liquidated damages and other damages 447–9;
- lump sum contract 433;
- material and workmanship 439–40;
- misrepresentation and mistake 414–16;
- National Construction Law and International Forms 456–7;
- performance and Taking-Over 419, 440–2;
- principle of good faith 411–13;
- procurement and tendering 431–2;
- remedies under contract 424–5;
- remedies under law 425–6;
- subcontracting 437–8;
- suspension 449–50;
- termination 422–4, 451–2;
- third parties, rights and liabilities of 416–19;
- time-bar provisions 453–4;
- unforeseeable physical conditions 438–9;
- unit price contract 433;
- variations 444–6;
- vitiating factors under contract law 413–14
- statutory adjudication 128
- statutory offset 261
- strike 172
- substitute performance 331–2
- Sweden, AB Standards 481
- tenders 189;
- third-party liability insurance 162
- transferring risks see risk allocation tronc commun approach 5
- unconscionability 469
- unilateral termination 202
- Uzbekistan 577–80
- “vouching-in” 611–12
- warranty 378
- Washington Convention 4