International Construction Law

This subject has the following teaching availabilities in 2013:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

Cross-border construction contracting, and the avoidance and conduct of disputes, has a distinctive character and content. Lawyers and industry professionals need to be familiar with the range of international forms available for various delivery methodologies, the key issues in the international financing and procurement of projects and the options for, and methods of dealing with, dispute resolution, along with the intricacies associated with those processes in an international context.

The subject provides detailed treatment of dispute avoidance techniques used in international projects (such as disputes boards) and the principles and practice of international arbitration in the construction context. The subject lecturers, John Digby QC and Professor Doug Jones AO, are construction lawyers with extensive experience in all aspects of international procurement and dispute resolution. They have been involved in many of the most significant projects undertaken in Australia or with Australian parties, and have made a substantial contribution to ongoing reform of international arbitral institutions.

Principal topics will include:

• Key issues in the finance and delivery of international construction projects
• Standard-form contracts for international construction projects (including the FIDIC suite and variants promulgated by the Multilateral Development Banks)
• The main distinctions of principle and practice between the prosecution, determination or resolution of construction claims in the principal common law jurisdictions, the United States and selected Asian countries
• An examination of international bodies dealing with the determination or resolution of international construction claims
• The jurisdictional, governing law and procedural framework for the prosecution, determination and enforcement of construction claims through international arbitration, including Lex Mercatoria and Amiable Composition
• Identification and consideration of contractual and extra-contractual alternative dispute resolution (ADR) and dispute avoidance procedures (DAPs) in the context of international construction litigation and international arbitration.

A student who has successfully completed this subject should:

• Understand the key distinctive features of procurement of construction projects which involve international parties or cross-border location, including their delivery and financing
• Be able to provide meaningful advice on the selection and use of standard form construction contracts for international projects
• Be aware, in a comparative context, of the basic procedures and principles regulating the prosecution, resolution, determination and enforcement of construction claims in the United States, principal common law jurisdictions and selected Asian countries
• Be able to advise upon the key features and desirability in the international context of commonly used mechanisms for the avoidance and resolution of international construction disputes
• Be conversant with the basic procedures and principles regulating the prosecution and enforcement of construction claims in the context of international arbitration, particularly in the US, Europe and Asia.

Take-home examination (100%) (9–12 August)
or
10,000 word research paper (100%) (18 September) on a topic approved by the subject coordinator

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Visit the Melbourne Law Masters website for more information about this subject.

This subject is not available as a breadth subject.