| Foreword |
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v | |
| Preface |
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vii | |
| Acknowledgments |
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xi | |
| Introduction |
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xxiii | |
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Part I International Contracting: Defining the Playing Field |
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1 | (70) |
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Chapter 1 International Contracting: How a Project Can Turn into a Nightmare |
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3 | (26) |
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1.1 Case --- An uneasy event |
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3 | (1) |
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1.2 The BP oil spill: what happened? |
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3 | (4) |
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7 | (1) |
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1.4 The first investigations |
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8 | (2) |
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10 | (2) |
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1.6 Kinds of damages caused by the disaster and claims |
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12 | (1) |
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12 | (4) |
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1.8 Further investigations and reports |
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16 | (4) |
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1.9 What went wrong? --- The causes and proposed reforms |
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20 | (3) |
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1.10 Violation of laws, regulations, procedures and policies |
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23 | (1) |
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1.11 Sharpening regulations |
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23 | (2) |
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25 | (1) |
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26 | (3) |
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Chapter 2 The Role of Contracting in International Contracting |
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29 | (10) |
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2.1 Case --- What is reasonable? |
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29 | (2) |
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2.2 Changing relationships in international contracting |
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31 | (4) |
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2.3 Contract management and contracts |
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35 | (2) |
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2.4 The role of project managers and contract managers |
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37 | (1) |
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37 | (2) |
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39 | (14) |
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3.1 Case --- No discrimination |
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39 | (2) |
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41 | (3) |
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44 | (2) |
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3.4 Public-private partnerships |
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46 | (2) |
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3.5 Working with clients: specific issues |
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48 | (2) |
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50 | (3) |
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Chapter 4 Contract Management: Definitions, Concepts and Perspectives |
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53 | (18) |
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4.1 Case --- The Amsterdam underground metro line |
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53 | (2) |
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4.2 Contract management: concepts and definitions |
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55 | (1) |
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4.3 Problems in contract management |
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56 | (4) |
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4.4 Perspectives on contract management |
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60 | (3) |
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4.5 Attitudes towards contracting |
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63 | (2) |
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4.6 The lifecycle of a contract |
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65 | (3) |
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68 | (3) |
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Part II The Contracting Cycle |
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71 | (90) |
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Chapter 5 From Tender to Final Payment |
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73 | (24) |
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5.1 Case --- The offer and the main subcontractor |
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73 | (2) |
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5.2 The contracting lifecycle |
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75 | (3) |
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5.3 Invitation to tender: the tender process |
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78 | (5) |
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5.4 Landing the contract: the Letter of Intent (LOI) |
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83 | (2) |
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5.5 Contract negotiations and closure |
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85 | (2) |
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5.6 Subcontracting and project execution |
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87 | (3) |
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5.7 Testing, delivery and payment |
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90 | (3) |
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5.8 Claims and dispute resolution |
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93 | (1) |
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94 | (3) |
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Chapter 6 European Tendering |
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97 | (18) |
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97 | (2) |
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6.2 Principles and scope of the European procurement laws and directives |
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99 | (5) |
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6.3 European procurement procedures |
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104 | (6) |
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6.4 Implications for contractors |
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110 | (2) |
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6.5 Summary and conclusions |
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112 | (3) |
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Chapter 7 Downstream Contracting: Managing Suppliers and Subcontractors |
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115 | (22) |
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7.1 Case --- The subcontracted steel piles |
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115 | (2) |
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7.2 Downstream contracting: definitions |
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117 | (4) |
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7.3 Purchasing process and procedures |
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121 | (3) |
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7.4 Portfolio management and supplier segmentation |
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124 | (6) |
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7.5 Specific operational and legal problems related to procurement and subcontracting |
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130 | (4) |
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134 | (3) |
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Chapter 8 Contract Models in International Contracting |
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137 | (24) |
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8.1 Case --- The missing rescue boat |
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137 | (1) |
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138 | (5) |
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143 | (1) |
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8.4 Activities and risk allocation |
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144 | (3) |
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147 | (2) |
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8.6 Contract models overview |
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149 | (7) |
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8.7 How standard contracts are used |
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156 | (1) |
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8.8 Collaborative contract models |
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157 | (1) |
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158 | (3) |
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Part III Project and Risk Management |
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161 | (74) |
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Chapter 9 Risk Management in Projects |
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163 | (40) |
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9.1 Case --- Contractor withdraws from negotiations due to risk exposure |
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163 | (1) |
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9.2 The many faces of risk |
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164 | (1) |
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165 | (2) |
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9.4 Risk management and contract type |
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167 | (3) |
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9.5 Risk policy of contractors |
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170 | (5) |
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9.6 Identification of risks |
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175 | (7) |
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9.7 Categorization of risks |
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182 | (2) |
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184 | (2) |
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9.9 Contract cycle and risk management |
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186 | (4) |
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9.10 Risk appetite --- risk pressure --- risk exposure |
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190 | (3) |
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193 | (2) |
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9.12 Conclusions and recommendations |
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195 | (8) |
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197 | (6) |
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Chapter 10 Managing Variations in Contracts |
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203 | (32) |
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10.1 Case 1 --- Permission for a technical variation |
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203 | (1) |
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10.2 Case 2 --- Instructions versus variations |
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203 | (2) |
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10.3 Definitions of variations |
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205 | (2) |
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10.4 Events resulting in variations |
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207 | (4) |
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10.5 How to handle variations |
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211 | (7) |
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10.6 Refused variations and disagreements |
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218 | (3) |
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10.7 Variations that usually do not change contracts |
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221 | (1) |
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10.8 Variations that changed contracts |
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222 | (3) |
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10.9 Variations that change the typology of the contract |
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225 | (5) |
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230 | (5) |
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Part IV Legal Issues in International Contracting |
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235 | (246) |
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Chapter 11 Letter of Intent and Memorandum of Understanding |
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237 | (10) |
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11.1 Case --- The missing reports and the missing permits |
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237 | (2) |
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11.2 Letter of Intent --- definition |
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239 | (1) |
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11.3 Is a Letter of Intent legally binding? |
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240 | (1) |
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11.4 Letter of Intent --- validity and risk |
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241 | (1) |
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11.5 Memorandum of Understanding --- definition and objectives |
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242 | (1) |
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11.6 Differences and similarities between LOI and MOU |
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243 | (1) |
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11.7 Letter of authorization and other letters |
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244 | (1) |
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244 | (3) |
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Chapter 12 Signing the Contract --- Pitfalls |
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247 | (8) |
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12.1 Case --- Post-tender additional work |
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247 | (2) |
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12.2 Inaccurate technical negotiations and discussions |
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249 | (2) |
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12.3 The objective of the four corner contract |
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251 | (1) |
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12.4 Priority of documents |
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252 | (1) |
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12.5 Conclusion --- A few days of painstaking work |
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253 | (2) |
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Chapter 13 Liability Versus Responsibility |
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255 | (10) |
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13.1 Case --- A loss-making project and its malfunctioning project manager |
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255 | (1) |
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13.2 The project manager's labor contract |
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256 | (1) |
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13.3 The contractor's construction contract |
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257 | (1) |
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13.4 Legal liabilities after unlawful actions |
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258 | (1) |
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258 | (1) |
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13.6 Non-contractual damages |
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259 | (1) |
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13.7 Direct versus indirect or consequential losses |
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260 | (1) |
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13.8 Damage to contractual parties |
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261 | (1) |
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262 | (1) |
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262 | (1) |
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263 | (2) |
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Chapter 14 Guarantees and Warranties |
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265 | (20) |
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14.1 Case --- Guarantee issues |
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265 | (1) |
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14.2 A guarantee by a third party |
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266 | (5) |
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271 | (1) |
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14.4 Guarantee and good workmanship |
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272 | (1) |
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273 | (3) |
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276 | (3) |
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14.7 Summary and conclusions |
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279 | (6) |
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Chapter 15 Contract Law and Tort Law |
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285 | (8) |
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15.1 Case --- The polluted drinking water |
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285 | (1) |
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15.2 Tort, tort law and contractual stipulations |
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285 | (2) |
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15.3 Tort in general civil law |
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287 | (3) |
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290 | (1) |
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15.5 The practical descriptions of standard contracts |
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291 | (1) |
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292 | (1) |
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Chapter 16 Consequential Losses |
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293 | (12) |
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16.1 Case --- The broken mill shaft and the remover |
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293 | (1) |
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16.2 Liability for consequential losses and contract agreements |
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294 | (1) |
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16.3 Excluding consequential losses in construction contracts |
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295 | (2) |
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16.4 Considerations of direct versus consequential under English law |
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297 | (3) |
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300 | (1) |
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16.6 "Consequential" losses under the law of the Netherlands |
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301 | (1) |
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16.7 Legal systems other than English law and the law of the Netherlands |
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302 | (1) |
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16.8 Drafting clauses on limitation of liability |
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303 | (1) |
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304 | (1) |
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Chapter 17 Intellectual Property |
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305 | (12) |
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17.1 Case --- Inability to perform scope of work due to patent protection |
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305 | (1) |
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306 | (1) |
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17.3 Intellectual property and tort |
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307 | (1) |
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17.4 Patent and patent holder |
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308 | (1) |
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17.5 Architect's copyright |
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309 | (2) |
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17.6 Infringement and enforcement |
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311 | (1) |
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17.7 Confidential information and intellectual property in contracting |
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312 | (2) |
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314 | (3) |
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Chapter 18 Damage and Causality |
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317 | (16) |
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18.1 Case --- Malfunctioning struts |
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317 | (1) |
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18.2 Damages under contracts |
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318 | (1) |
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18.3 Causes of damages and losses |
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319 | (6) |
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18.4 A theory of causality in business law |
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325 | (5) |
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330 | (3) |
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Chapter 19 Knock-For-Knock Arrangements |
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333 | (24) |
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19.1 Case --- The oil platform's broken anchor chain |
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333 | (1) |
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19.2 Liability for damages in standard contracts |
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334 | (2) |
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19.3 The offshore industry -- deviating stipulation |
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336 | (2) |
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19.4 Example from standard non-construction contract |
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338 | (2) |
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340 | (2) |
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19.6 The purpose of the knock-for-knock principle |
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342 | (2) |
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19.7 The unseaworthy tug boat and the gross negligence |
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344 | (1) |
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345 | (1) |
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19.9 Further cases of knock-for-knock |
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346 | (2) |
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348 | (1) |
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19.11 Negligence, gross negligence and willful misconduct |
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348 | (2) |
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19.12 Negligence in legal systems other than common law |
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350 | (2) |
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19.13 Preparing a tender with the knock-for-knock principle |
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352 | (1) |
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353 | (4) |
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Chapter 20 Disasters, Damage and Public Investigations |
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357 | (16) |
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20.1 Case --- The collapsed roofs in the Netherlands |
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357 | (1) |
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20.2 Disasters and public investigations |
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358 | (1) |
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20.3 Safety built into construction works --- public rules and regulations |
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359 | (1) |
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20.4 Learning from damages and disasters |
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359 | (2) |
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20.5 Complexity of many simultaneous causes |
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361 | (2) |
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20.6 The Twin Towers in New York |
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363 | (5) |
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20.7 The legal importance of distinguishing different causes |
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368 | (3) |
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20.8 Holding the offender accountable in civil law and public law |
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371 | (1) |
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372 | (1) |
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373 | (22) |
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21.1 Case --- The loose pontoons |
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373 | (2) |
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21.2 What is force majeure in international contracting? |
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375 | (2) |
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21.3 Some definitions from standard contracts |
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377 | (4) |
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21.4 Force majeure in the Netherlands' law |
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381 | (3) |
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21.5 Force majeure in English common law |
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384 | (3) |
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21.6 Consequences of force majeure |
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387 | (1) |
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21.7 The Hurricane Protocol |
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387 | (5) |
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392 | (3) |
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395 | (16) |
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22.1 Case --- The happy man |
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395 | (1) |
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22.2 Bribery and corruption |
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396 | (2) |
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22.3 Analyzing the small bribe |
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398 | (1) |
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22.4 The worldwide war against corruption |
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399 | (3) |
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22.5 The UK Bribery Act 2010 |
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402 | (2) |
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22.6 Anti-corruption legislation in the Netherlands compared with the UK |
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404 | (1) |
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22.7 Diverse legislation and anti-corruption committees |
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405 | (1) |
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406 | (2) |
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22.9 How to operate in a faraway country |
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408 | (1) |
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408 | (3) |
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Chapter 23 Dispute Resolution Mechanisms |
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411 | (14) |
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23.1 Case --- A different time schedule |
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411 | (2) |
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23.2 What to do when you are summoned to court |
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413 | (3) |
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23.3 Going to court yourself |
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416 | (2) |
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23.4 Some dispute resolution clauses in standard contracts |
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418 | (3) |
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23.5 Alternative Dispute Resolution (ADR) |
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421 | (2) |
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423 | (2) |
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Chapter 24 Different Legal Systems |
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425 | (20) |
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24.1 Case --- Exact to specification, but not fit for purpose |
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425 | (1) |
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24.2 English terminology and international construction contracts |
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426 | (3) |
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24.3 The human need for rules |
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429 | (1) |
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24.4 Families of legal systems |
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430 | (2) |
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24.5 The Roman civil law system |
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432 | (2) |
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24.6 Codification of laws on the continent --- law review in selected countries |
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434 | (1) |
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24.7 Common law --- the English legal system |
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435 | (3) |
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24.8 A short comparison between common law and continental law |
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438 | (1) |
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24.9 Various other families of legal systems |
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439 | (5) |
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444 | (1) |
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Chapter 25 Cultural Differences and Contract Management |
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445 | (36) |
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25.1 Case --- Two cultures meet |
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445 | (1) |
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446 | (1) |
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25.3 Cultural differences are all around us |
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447 | (1) |
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448 | (1) |
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25.5 Differences of all kinds |
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449 | (3) |
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25.6 Culture --- What is behind attitude and behavior? |
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452 | (7) |
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25.7 Characteristics of cultures and nations |
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459 | (3) |
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25.8 Evaluating cultural aspects according to Hofstede |
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462 | (8) |
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25.9 The practical use of cultural elements |
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470 | (2) |
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472 | (1) |
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25.11 Legal reflections on cultural beliefs and assumptions |
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472 | (2) |
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25.12 Coming to terms with different cultural values |
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474 | (3) |
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25.13 Summary, recommendations and gentle suggestions |
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477 | (4) |
| Index |
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481 | |
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