The International Construction Law Review is the leading authority on international construction law and provides critical information in areas ranging from procurement, project partnering, subcontracting, environmental issues, delay and disruption in construction contracts, trends in dispute resolution and alternatives to the FIDIC conditions.
Edited by Chantal-Aimée Doerries KC and Professor Doug Jones AO of Atkin Chambers, along with a distinguished editorial advisory board, it provides comprehensive reports and articles which offer in-depth and incisive analysis of the key developments in construction law across the globe. ICLR’s genuinely global perspective is also supported by a team of dedicated international correspondents based in over 20 countries.
Contents
Articles
International Construction Contracts in Saudi Arabia: Demystifying Saudi Law and Shari’ah Principles in the Kingdom – Dr Ali Almihdar and Joseph Chedrawe
Multi-Party Arbitration under the Proposed Amendment to the Nigerian Arbitration Law – What Does This Mean for Construction Disputes in Nigeria? – Ngo-Martins Okonmah
The Doctrine of Prevention and the Doctrine of Penalties: Uniformity and Freedom of Contract – Trevor Thomas
The FIDIC Time Bar Clause: News from Russia – Alexey Vyalkov
Book Reviews
Extra-Contractual Recoveries for Construction and Engineering Work – Reviewed by Chantal-Aimée Doerries KC, Atkin Chambers
FIDIC Contracts in Asia Pacific – A Practical Guide to Application – Reviewed by Sofiane Hebib, Université Bourgogne Franche-Comté
FIDIC Contracts in Europe – A Practical Guide to Application – Reviewed by David Brown, Clyde & Co
INTRODUCTION
The first Part of the International Construction Law Review for 2023 embodies the global nature of the construction industry through a collection of articles dealing with a variety of challenges in major infrastructure projects. In international construction, common issues relating to contractual interpretation, multi-party arbitration and FIDIC time bar clauses arise irrespective of jurisdiction. This part contains a discussion of Saudi Arabian, Nigerian and Russian aspects of construction issues as well as an examination of the principles relevant to the concepts of prevention and penalties.
We begin Part 1 of the 2023 volume with Dr Ali Almihdar and Joseph Chedrawe’s article, “International Construction Contracts in Saudi Arabia: Demystifying Saudi Law and Shari’ah Principles in the Kingdom”. The laws applying to issues of construction disputes within the Kingdom of Saudi Arabia have been characterised as inaccessible and complex. This has presented challenges in international arbitration disputes involving construction projects in the Kingdom. Dr Almihidar and Chedrawe seek to clarify the operation of Saudi laws and Shari’ah principles in the context of international construction law. The article starts with an overview of the laws of the Kingdom of Saudi Arabia underpinned by Shariah principles, specifically evaluating the four primary schools in Sunni Islam. The article then assesses general principles of contractual interpretation, including freedom of contract under Shari’ah law, where the prevailing view is parties may enter into a contract through mutual agreement but cannot decide the legal consequences of that contract unless those effects fall within and do not violate the Shari’ah. Next, they look at foundational principles common to both Saudi law and the Shari’ah are examined, specifically good faith, abuse of right and unjust enrichment, through an analysis of these principles and relevant Saudi legislation and case law. Finally, the article evaluates the application of Shari’ah principles to common disputes issues within the sphere of construction arbitration, including contractual notifi cation, scope variations, limitation of liability, damages and non-payment.
Next is Ngo-Martins Okonmah’s article, “Multi-Party Arbitration under the Proposed Amendment to the Nigerian Arbitration Law – What Does This Mean for Construction Disputes in Nigeria?”. The significance of arbitration within Nigeria has led to a proposed amendment bill aiming to reform arbitration laws in Nigeria to align with the arbitration rules of international arbitration institutions. Okonmah provides an insight into the prospect of multi-party arbitration in Nigeria, explaining the various multiparty disputes occurring within construction projects. This includes an evaluation of how multipolar multi-party disputes may arise under various project procurement models, including through build-only contracts, design-build contracts, and construction management contracts. Okonmah then discusses the key benefits associated with multi-party arbitration, specifically minimising risks of inconsistent arbitral awards and time and cost savings. These factors are then directly contrasted with the critical challenge of establishing consent across parties in a multi-party arbitration, drawing reference to the doctrine of privity of contract. The article further proceeds to examine international arbitration rules addressing this issue, including the LCIA Rules 2020, ICC Rules 2021 and Swiss Rules of International Arbitration 2012. Finally, the article concludes by evaluating the proposed Bill reforming arbitration in Nigeria, analysing the impacts
upon international and domestic arbitration conducted within the country.
Following, “The Doctrine of Prevention and the Doctrine of Penalties: Uniformity and Freedom of Contract” by Trevor Thomas examines the conceptual framework underpinning the doctrines of prevention and penalties. The doctrine of prevention promotes the objective that a party should be unable to benefit from its misconduct. Within the context of construction law, this principle is often applied where a fixed time obligation exists. The doctrine of penalties further reinforces the legal principle that damages must be compensatory rather than punitive. This doctrine, in a construction context, arises in the application of liquidated damages. The author explores the common law development of the doctrine of prevention, specifically assessing each contested basis of the prevention principle as an implied term, rule of construction or an absolute rule of law. The article then reviews the historical development of the doctrine of penalties through common law, citing several landmark matters across English and Australian jurisdictions. Thomas further considers the contemporary position in Australia as developed through precedent across federal and state judicatures. Finally, the author discusses the role of freedom of contract, and the extent to which the law may impact private agreements.
The final article in this Part, “The FIDIC Time Bar Clause: News from Russia” by Alexey Vyalkov, offers an analytical perspective into construction disputes within the Russian jurisdiction. Within international construction disputes, FIDIC forms of contract present issues concerning the enforcement of 28-day time bar clauses for giving notice of claims and the application of this clause to claims for financing charges. The author explores these issues originating from time bar clauses within the context of Russian law through an analysis of Plasticana v YVK , a dispute between a state-owned entity and a contractor before Russian courts in 2013–14. This article firstly provides an over-arching outline of the case, including its procedural history, the defences presented and key determinations made by courts in both instances. It then re-examines the issue presented in Plasticana v YVK, namely the enforceability of the FIDIC time bar clause within Russian law, and discusses arguments for and against the clause’s enforceability not previously discussed in the case. Finally, the article explores the issue of applying the time bar clause in FIDIC forms of contract to claims for financing changes under Russian law, assessing the reasoning of the presiding judge in the matter.
We conclude this part with three book reviews. Firstly, Chantal-Aimée’s review of Extra-Contractual Recoveries for Construction and Engineering Work by Robert Fenwick Elliott. Then we have a review of FIDIC Contracts in Asia Pacific – A Practical Guide to Application by Donald Charrett, reviewed by Sofiane Hebib. Finally, we have David Brown’s review of FIDIC Contracts in Europe – A Practical Guide to Application, also written by Donald Charrett.
CHANTAL-AIMÉE DOERRIES KC
PROFESSOR DOUGLAS S JONES AO
