International Construction Contracts

Paper , Order, or Assignment Requirements

You are required to attempt both Questions 1 & 2 below. The weightings are as follows:
Question 1 – 65%
Question 2 – 35%

The following guidelines should be strictly adhered to:

1. The answer should be formally written, logically structured and with an introduction and a conclusion.

2. References should be to appropriate legal authority – relevant legislation (where applicable), case law, and academic writing.

3. The word limit for this coursework assignment (all components) is 3,500 words +/- 10% (excluding footnotes, bibliography and any appendices but including headings). This limit should be adhered to, otherwise the student will be penalised. You must include a statement of the word count on the front cover of your work. A deduction of 10 percentage points will be made for deviations in excess of +/- 10% of the specified word count. The +/-10% applies to each individual question’s word count.

4. Please do not include references in the body of the work. References should be by way of footnotes numbered consecutively only. A bibliography should appear at the end of the essay. The bibliography should contain all relevant material consulted by the writer, whether referred to in footnotes or not and material in the bibliography should be arranged under the following headings, where applicable:

Legislation
Case Law
Internet resources
Other resources

Words in footnotes and bibliography should not be included when taking into account the essay word count.

5. Footnotes must be used for referencing and further reading only and should contain as little text as possible.

6. OSCOLA standard of citation must be followed throughout the coursework – a separate guideline for OSCOLA has been attached separately.

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Coursework Assignment Scenario:

Nathajack LLP is a well-known construction company specialising in the design and construction of major civil engineering works such as roads, rail links and airports. It also has some expertise in the design and construction of sport facilities (stadia, velodromes, aquatic centres etc.). In the past twenty years, the company has been involved in the delivery of major road and rail projects in the United Kingdom. Last year, it decided to expand its operations into the Middle East. The company hopes to play a key role in the on-going infrastructure development boom in the region and take full advantage of the impending World Cup and World Expo events to establish a foothold in the region. It intends to bid for some of the forthcoming road, rail and stadia development projects advertised by the government of Duhailand, a country in the Middle East with a common law legal system, a thriving economy and new oil finds. Notwithstanding its enormous experience in the use of local UK standard forms for construction, Nathajack LLP has limited understanding of how the international construction market operates. It has been informed by sources in Duhailand that knowledge of the FIDIC suite of contracts, especially the 1999 Editions of the Red and the Yellow Books, will be crucial to its success in Duhailand. In the past, a number of specific issues have been found to pose great challenges to international contractors in the country including termination by the Employer; there have been many instances where Employers, often government agencies, have walked away from contracts in the course of the execution of a project without providing any reason(s) for their actions. There are concerns that government agencies tend to avoid setting up agreed DABs with the excuse that they are a waste of time. Occasionally, government agencies will sign short term DAB agreements with the intention of avoiding additional cost.

Questions

As a legal intern at the company, you have been asked to prepare a legal opinion on the following:

1. The approach of the FIDIC Red and Yellow Books (1999 Editions) to termination by the Employer, especially its right to walk away from a major construction contract without reason; the effect of the exercise of this right by the Employer on contractors; and how Nathajack LLP can avoid the negative implications of this practice which is rife in Duhailand. The company is eager to know how the courts elsewhere have
handled similar disputes. As it is contemplating promoting the NEC3 ECC in the Middle East, Nathajack LLP also want to know if the NEC3 ECC approach to the issue of Employers walking away from a contract midstream offers a better alternative (from a contractor’s perspective) to the FIDIC approach. Your answer must include a detailed analysis of the relevant FIDIC and NEC3 ECC clauses, case law (if any) and legal commentary.

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