International Construction Law Review


By David Mosey. Published by London Publishing Partnership, 2023. 
Pages 235. ISBN 978-1-913019-83-9. Price £40.00
Published standard form contracts for construction have a long and respectable history, nationally and internationally. If well drafted, they achieve valuable objectives, requiring (or at least encouraging) their parties to define what the project involves, the standards applying to work done under it, the time frame for stages and ultimate completion (and how this will be determined), as well as how changes to the project under way will be organised, how work which falls short will be remedied and how and when work done under the project will be (valued and) paid for. Such contracts often also include machinery to defuse, or resolve, disputes which arise between the contracting parties – notably prioritising ADR alternatives over traditional court litigation, or reflecting mandatory adjudication applicable to the project. Such contracts are often part of a family or suite also offering linked sub-contracts, aiming to be “back-to-back” with the top-level contract; consultant appointments may also be available.
However, such published forms are almost invariably two-party affairs, resting on a belief that the aims and interests of those who enter into them – especially employers (principals, in Australasia) and main contractor at the apex level – are unalterably opposed and must therefore be reconciled, notably through the allocation of risk and reward (or liability). They fail to reflect the increasingly fragmented and multi-party nature of construction projects: even a small-scale developer constructing a group of identical new homes is likely to buy in many specialist trades (once long-term employees of “the builder”, many are now “independent contractors”), as well as design consultants. Further, if the development is for a third-sector housing provider, the builder may have – or hope to have – repeat business from the same funder, so what looks like a one-off project may not be so.
The inefficiencies of the traditional model of contractual arrangements encourage a long tail of disputes after a project is over; at worst, they lead to seriously defective or unsafe work, risking the health and safety of the project’s ultimate consumers, as evidence to the Grenfell Tower Inquiry horrifyingly illustrates. External regulation of the process of construction could do more to combat these ultra-negative possibilities – as changes in and under the Building Safety Act 2022 are aiming to do for England. But could rethinking how procurement is managed and structured also help – for the remediation processes in residential towers, but also more generally?


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