Relational Contracting under the New Engineering Contract: A Model, Framework and Analysis

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