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”A common law of construction contracts” – or vive la différence?

by Donald Charrett

Dr Donald Charrett (2012) ICLR 72

The title of this paper refers to the question of the extent to which construction law around the world is, or can be universal, and to what extent there are irreconcilable differences between legal systems and/or jurisdictions.

The world is a big place – as at 2011 there are 192 member states in the United Nations, each of which presumably has the sovereignty to enact laws that could impact on the practice of construction law, at least (but not necessarily exclusively) within its borders.  The legal systems of those member states comprise a number of broadly defined “families” of law – common law, civil law, Shari’a law and socialist law, to name the most widely recognized.  Each of these families has certain characteristics which distinguish it from the other members of the family. However, as suggested below, some of these differences may be more apparent than real.

Faced with this complex milieu, is it possible to identify any common threads in construction law as practiced around the world?  And to what extent can contracting parties create a “common construction law”? This paper attempts, in a small way, to address these big questions.  Given such a potentially limitless topic, the paper is confined to an overview of several relevant issues in the area of construction contracts in common law and civil law systems. By way of further confinement, the type of construction contracts considered in this paper are limited to those in which the object of the contract is construction of a structure fixed to the land.

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