The benefits of standard form construction contracts : the effects and implications on the local construction industry

Abstract

This thesis analysis the effects standard forms construction contracts have on the international construction industry and the possible future application of the benefits parties may enjoy through already established legal remedies locally. The basic remedies available under various legal orders are individually assessed based on their applicability within Civil and Common law jurisdictions. A number of standard form construction contracts are then singularly evaluated and compared against the current protection offered in Malta through the articles of our Locatio Operis in relation to the same legal remedies in case of disputes relating to breach of contract. The study further delves into analysing the socio-economical impact these contracts have and the manner in which they are drafted in order to obtain a fair and balanced product. Standard construction contracts aim at better protecting both parties from unnecessary exposure to potential risks associated with the unknown and unforeseen, problems usually well associated with the industry. It also tries to analyse the practicality of having a contract of works, which is flexible enough to enable any possible circumstantial adjustment that may be necessary following the signing of the agreement, without putting at risk any performance the parties may have bargained for throughout their respective negotiations. The research concludes that it is in the interest of contracting parties to make use of singular form of contract. Such form of contract can better guarantee the performance of concurrent obligations whilst enjoying a better level of protection offered through contract law. They also offer the advantage of self-help remedies, thus reducing the need to request the intervention of the Courts in order to enforce performance. Nevertheless, better harmonisation of international laws may be needed in order to ascertain each party’s rights and autonomy and assist them in creating their own enforceable hierarchy of remedies. In order to increase efficiency and obtain a more expedite form of enforcement, the intervention of the Courts needs to be limited to simply ensuring a just and fair outcome from such application.