Arthur McInnis PhD
September 2003
A paper given to a meeting of the Society of Construction Law in London on 1st April 2003.
The NEC contract does not fit easily within traditional contractual models, and the author questions whether another theoretical contractual framework can be put forward and suggests the relational contract model. The centrepiece of this framework is the notion of co-operation, drawing upon the notions of good faith and fairness. The paper sets out and applies the model demonstrating how the theory works on the ground, tracing the locus of the NEC in empirical research on contract behaviour, long term contracting, partnering, fiduciary relationships and dispute management.
The model - elational contract theory - Empirical foundation - Key model elements - Good faith and fairness in classical contract theory - Good faith - Leading jurisdictions - ecent examples - The Latham eport and fairness - Fairness in other contexts - Co-operation - Implied terms - NEC features - Co-operation as an implied term - Traditional two-fold analysis - Prevention: negative co-operation - Positive co-operation - Co-operation and risk allocation - Long term contracting - Fiduciary aspects of long term contracting - Partnering - Flexibility - Disputes - Conclusion.
The author: Arthur McInnis PhD is a consultant with Clifford Chance in Hong Kong.
Text 65 pages.
PDF file size: 387k