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To be fair - Is it a matter of drafting or interpretation?

Paper number

John Barber

July 2017

A paper given at the Centre of Construction Law King's College London 30th Anniversary Conference held in London on 2nd June 2017

When a standard form construction contract aims to achieve a fair allocation of risk between the parties, how should courts deal with any questions of interpretation which arise? Updating an original paper from 1988, John Barber considers key clauses from the ICE Conditions and the approaches judges might take to them. He argues that a 'sound business sense' approach, as adopted in a range of recent cases, is most likely to achieve both clarity and fairness.

Introduction - The 1988 paper - 'Sound business sense' - Allocating risk fairly: the ICE Conditions - Interpreting key clauses in the ICE Conditions - Risk-sharing in recent case law - The Achilleas - The Ocean Victory - Conclusion.

The author:John Barber is Michael Brown Lecturer and a former Director, Centre of Construction Law & Dispute Resolution, Dickson Poon School of Law, King's College London:

Text: 8 pages