A Brief OnThe General Principles of Construction Law in Common Law Countries

Background

The World consists of 3 Major legal law system, which in short is :-

1. the Common Law legal system,

2. Sharia Law legal system, and

3. the Civil Law legal system.

Accordingly the Construction Laws in thee 3 legal systems are not interchangeable as they are developed from different legal/law principles. Although there are similarities between the 3 systems, they are not the same and differences exists between similar principles that will affect the application of construction law within each legal system.

In conclusion, the principles of law under each legal system may have some similarities to each other, but they are not identical. Readers are advised to consult with the lawyers registered to operate in each legal system for specific guidance and advice before embarking to resolve construction disputes and claims through the courts /arbitrations.

A Word of Advice

One word of advice for would be practitioners is that parties entering into such contracts should:-

1. be familiar with the applicable laws and regulations

2. to ensure that their rights and obligations are properly defined and protected.

3. to seek legal advice as there may be challenges and complexities between the 3 legal systems in the implementation of similar law principles in each jurisdiction.

My Personal Journey

In my 35 years in dealing with Construction Claims and Disputes is my observation that 90% of Practitioners who did not undergo any formal legal training in their formative years are totally ignorant of Common Law and their basic principles.

I do not blame them for their ignorance as their knowledge of Common Law are most probably gleamed from the numerous many seminars, WEbinars and talks that are so prevalent nowadays.

I would put the fault on the developers and speakers of these talks and seminars for not ensuring that their participants are equipped on the basic fundamentals of the Common Law legal system, and instead jumping straight into Construction Laws without explaining that these Construction laws are not universal and not interchangeable between the distinct but separate legal systems.

I myself is a victim of the above but after some 10 years in the business I started to take note that there are some knowledge that I am lacking when I went overseas for work in the Sharia law Countries like Saudi Arabia and UAE.

It was only then that I realised that my knowledge of the Common Law legal system was very shallow and in fact almost zero save for the fact that Case Laws are important to a certain extent and applicability. I was under the impression that Construction Laws is all about case laws and that they are applicable everywhere. Boy was I wrong in my thinking.

It was then that I realise that I need to get up to speed on the most basic fundamental question, which are :

1. “What is Common Law ? “ and

2. “How is it different from the other Legal systems in the world”

It was only then that I stumbled upon a book by a Malaysian author Ms Lee Mei Pheng in her book “ General Principles of Malaysian Law” that started off my journey of awakening. Do not get misled by the word “Malaysian” in the title. This is because Malaysia is one of the Common Law countries that practices construction law in very close proximity to the laws in UK, where the Common Law principles are emulated from.

The book is written in simple form and language but by no means exhaustive and should be used only as basic text and a springboard to move forward on the above subject. It does gives a tremendous amount of insight to the question “What is Common Law ?”.

It is a shame when note that to date, I have not come across any seminars or talks to fill the laguna in this all important question. Hope that my musings today will do that.

In the preface of the book, Ms Lee revealed that one of her primary reasons for writing the book is to assist the aspiring bankers and public accountants to pass their respective examinations under the Malaysian Association of Certified Public Accountants and the Institute of Bank-Bank Malaysia in order for them to obtain their respective Professional Certificates before they are allowed to be employed as Professionals Bankers and Accountants.

This is one of the drawbacks of the Construction Industry today whereby there are no such examinations to train and equip construction professionals on the basic fundamentals of Construction Law in their respective jurisdictions.

I believe it is timely and essential that such similar regulations be introduced in the Construction Industry for major Projects as I observed from my 35 years in the business that the lack of a strong foundation on the fundamental and principles of Construction Law by the various stakeholders as the weak point in the Industry which in my opinion are the root cause of the many and ever increasing number of disputes and claims.

After having written some 20 over musings on Construction Law, I have discovered that readers have a somewhat short attention span. My musings which are loner than a 10 min read are often not read through to its end. As such I will end today’s musings at this point and continue this musings next week where I will addressed what I think are the basic principles that readers should know and be aware of, in particular to Q2 of this musing which is “ How is it different from the other Legal systems in the world”.

Please keep a lookout for the continuation of my musings next week. In order for it to be more meaningful, those who are more enthusiastic can do some reading up by googling the following subjects in preparation:

1. Stare decisis

2. Ratio decidendi

3. Obiter Dicta

4. Application of local and foreign case laws

Thank You for your time this week. See you all next week for Part 2 of this musing.

Steven Chin