Contracts for Infrastructure Projects : An International Guide to Application book cover
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Contracts for Infrastructure Projects
An International Guide to Application




ISBN 9781032074290
Published May 19, 2022 by Informa Law from Routledge
848 Pages 17 B/W Illustrations

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Book Description

Contracts for Infrastructure Projects: An International Guide provides a guide to the law relating to construction contracts for infrastructure projects; it is intended for the use of engineers and other professionals who are involved in the negotiation and administration of construction contracts, to enable them to understand the risks involved, and how to minimise them. The principles of construction law outlined in this book apply to small construction contracts as well as very large contracts for which the contract sum may be in the billions of dollars.

The focus of the book is on construction contracts entered into by commercial organisations operating in a business environment. Contract law generally assumes that such parties are of equal bargaining power and puts relatively few fetters on their ability to agree on the terms of their bargain. However, where legislation impacts on the execution of construction projects or the operation of construction contracts it may be of major importance in protecting the rights of weaker parties or third parties.

It is assumed that the users of this book will be familiar with the general concepts of tendering and contracting for engineering and construction projects but may not have any formal knowledge of the law. To the extent possible, the emphasis is on general principles of contract law that are widely accepted in many jurisdictions. Examples are drawn from case law in a number of common law jurisdictions, as well as from civil codes.

Table of Contents

Table of figures and tables Acknowledgements Foreword 1 Introduction 2 Contract law 3 Construction contracts 4 Lex Constructionis 5 Entry into the Contact 6 General provisions 7 The Employer 8 The Engineer 9 The Contractor 10 Subcontracting 11 Design 12 Staff and labour 13 Plant, materials and workmanship 14 Commencement, delays and suspension 15 Planning and programming for construction contracts 16 Tests On and After Completion 17 Employer's Taking-over 18 Defects after Taking Over 19 Measurement and evaluation 20 Variations and adjustments 21 Contract Price and payment 22 Termination by the Employer 23 Suspension and termination by the Contractor 24 Care of the Works and indemnities 25 Exceptional events 26 Insurance 27 Employers and Contractor's Claims 28 Dispute avoidance and resolution 29 The Impact of ICT on Construction Contracts 30 Glossary 31 Appendix A Matters for Consideration when drafting a construction contract 32 Appendix B Risk Factors 33 Appendix C Global claims 34 Index

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Author(s)

Biography

Philip Loots has practised exclusively as a construction lawyer for more than 40 years and is a recognised authority on construction law. He has worked in the Middle East, Africa, Australia, Asia and elsewhere internationally. In addition to writing numerous articles in this field, he has authored and co-authored a number of books including Practical Guide to Engineering and Construction Contracts, Construction Law and Related Issues and Engineering and Construction Law. He holds the position of Adjunct Professor at the Centre for Mining, Energy and Natural Resources, Faculty of Law, University of Western Australia. He has practised as a Solicitor in Western Australia and as an Attorney and Notary Public in the Republic of South Africa. Philip is a Mediator, International Arbitrator and a Statutory Adjudicator in Western Australia and the Northern Territories, Australia. Philip is engaged in drafting and negotiating all forms of construction contracts and advice on all aspects of construction law including claims and disputes, and has considerable mega- project experience, including full-time involvement as in-house counsel on construction projects, (including contracts for marine structures and dredging), in the negotiations and legal department for the operator Chevron on the USD$54Bn Gorgon LNG project for five years, and for four years as in-house counsel for the EPC contractor Bechtel on the $37Bn Wheatstone LNG project. Phil has a B Comm LLB and attended the PMD at Harvard Business School, and subsequently the Executive Negotiation Program at Harvard. Philip serves on the Law Council of Australia /Law Society of Australia Construction and Infrastructure Committee and was awarded the Finance Monthly Law Award for Best Contract Lawyer 2017.

Dr Charrett is a barrister, arbitrator, mediator, expert and dispute board member practising in technology, engineering and construction (TEC) disputes. Prior to joining the Victorian Bar, he worked as a solicitor at a large Australian law firm. His construction law briefs have included litigation, mediation, expert determination, facilitation of experts’ conferences, arbitration and membership of dispute boards. He is a member of the FIDIC President’s List of Adjudicators and a Fellow of the Chartered Institute of Arbitrators. He was named as Best Construction Law Practitioner, Australia 2016 by Business Worldwide Magazine. In 2019 and 2020 WhosWho Legal included him on their list of Thought Leaders – Construction, saying "Donald Charrett is looked on with enormous favour by sources for his vast experience in construction and engineering disputes".

Prior to becoming a lawyer, he worked as an engineer for over thirty years, including twelve years as a director of a consulting engineering firm. Dr Charrett’s engineering experience included computer applications, structural design, managing engineering projects, acting as an expert witness and management roles in contract negotiation and administration, insurance, international joint ventures and corporate restructuring. From 2012 to 2014 he was non-executive chairman of consulting engineering company AMOG.

Dr Charrett has published widely on legal and engineering subjects, and presented conference papers, workshops and training courses in Australia and internationally. He is a Senior Fellow at the University of Melbourne, teaching a Master of Construction Law subject on international construction law.

His legal publications include articles on expert evidence, FIDIC contracts, dispute boards, dispute avoidance and resolution, contract risk, forensic engineering, contractual lessons from past projects, design and construct contracts, quantum meruit, solidary liability, construction insurance, professional indemnity insurance and reinsurance. He is the author of The Application of Contracts in Engineering and Construction Contracts, joint author of The Application of Contracts in Developing Oil and Gas Projects and the editor of The International Application of FIDIC Contracts: A Practical Guide, and Global Challenges Shared Solutions.

Reviews

After more than 35 years in legal practice I have become somewhat desensitised
by the proliferation of new publications, particularly in the field of construction law.
Many are what my friends in academia refer to as carrying dead bones from one
grave to another. But, having read Construction Contracts for Infrastructure Projects from cover to
cover, I am entirely resensitised.


The learned authors Philip Loots and Dr Donald Charrett need no introduction to
anyone with an interest in the law and practice of construction. Their impressive
biographies are contained on pages xvi and xvii of the publication. Their joint and
separate experience and insight drawn from decades of global inter-disciplinary
exposure, theoretically and practically, shine brightly throughout this scholarly
treatise. It constitutes an impressive compilation of the legal principles and
practical considerations governing the relationships between parties from
different jurisdictions in the modern-day world of international infrastructure
projects. It addresses the challenges facing the role players and those advising
and representing them and the confluence between common law and civil law
jurisdictions. It displays a diligent, committed analysis of the complexities of the
law and practice relevant to construction projects globally. It does so in a manner within the reach of a broad spectrum of readers. The publication bears testimony
to the authors’ intellectual discipline and deep understanding of the law and
practice relevant to all aspects of construction contracts.
This publication is bound, over the years to come, to earn a special place in my
library amongst a few select, dog-eared, iconic stalwart textbooks.
The publication comprises over 700 pages of meticulously researched text in
plain language. More than 1200 judgments from around the globe are referred
to. It includes relevant portions of legislation from more than 50 international
jurisdictions, all contained in a neatly laid out and user-friendly publication
supplemented by useful case studies, tables, illustrations and schedules.
The book deals with the following well-considered and logically sequenced topics
in 29 chapters: an introduction, contract law, construction contracts, lex
constructionis, entry into a contract, general provisions, the employer, the
engineer, the contractor, subcontracting, design, staff and labour, plant,
materials, and workmanship, commencement, delays, and suspension, planning
and programming, tests on and after completion, employer’s taking-over, defects
after taking-over, measurement and valuation, variations and adjustments,
contract price and payment, termination by the employer, suspension and
termination by the contractor, care of the works and indemnities, exceptional
events, insurance, employer’s and contractor’s claims, dispute avoidance and
resolution and the impact of ICT on construction contracts.
There is an alphabetically tabulated 50-page glossary of terms which guides the
reader to the term, its meaning and in which section it is defined.
There are three appendices dealing with matters for consideration when drafting
a construction contract, risk factors in the construction of infrastructure projects,
and global claims.


The following quotation from the foreword written by the Honourable Wayne
Martin AC QC is appropriate:
This book responds to the need created by the globalisation of the
construction industry. Lawyers advising participants in that industry can
no longer rely upon domestic texts which deal only with the laws of a
particular jurisdiction. In this seminal work they will find a truly
cosmopolitan compilation of the sources of law which govern the rights
and obligations in transnational construction projects.


The authors comprehensively develop the thesis earlier propounded by
others to the effect that it can now be said that there is a coherent body of
international law applicable to construction which can be regarded as a
division of the lex mercatoria (international merchant law) and described
as lex constructionis.


I am of the view that Contracts for Infrastructure Projects is an indispensable
addition to the library of everyone involved with construction contracts, whether
as lawyer, employer, contractor, engineer, claims consultant or dispute
avoidance or resolution practitioner and it will undoubtedly be an invaluable
resource for construction law students.


Tjaart van der Walt SC