A talk at a conference in Cambridge in September 2015.

1. Francis Ho, Head of Construction | Friday, 11 September 2015 | Cambridge
francis.ho@olswang.com | +44 20 7067 3505 | @fkyh
IBC Legal’s Construction Law Summer School 2015, Day 4
Key Developments in Emerging Markets

2. |
Interaction between civil law and common law
olswang.com | constructiveblog.comKey Developments in Emerging Markets | IBC Legal’s Construction Law Summer School 2015 | 11 September 20152
• Popular standard forms generally have roots in common law
jurisdictions, e.g. FIDIC, NEC
• Key construction law constructs may be based on common law
• Many emerging markets have civil law systems (e.g. UAE, Qatar,
China, Vietnam, Russian Federation, South Africa)
• Risk of conflict of laws
• Governing law may undermine contractual provisions
• Mandatory local laws may supplant contractual provisions

3. |
Cultural and political concerns
olswang.com | constructiveblog.comKey Developments in Emerging Markets | IBC Legal’s Construction Law Summer School 2015 | 11 September 20153
• May be bound by local law regarding jurisdiction and dispute
resolution forum (e.g. Board of Grievances in Saudi Arabia)
• Public policy requirements
• Prohibition of speculation
• Prohibition of gambling
• Other forbidden practices under Shari’ah law
• May be influenced by politics - e.g. embargo on use of Israeli goods
and services

4. |
Local contractors
olswang.com | constructiveblog.comKey Developments in Emerging Markets | IBC Legal’s Construction Law Summer School 2015 | 11 September 20154
• Local content requirement may necessitate joint ventures with local parties
• Advantages and disadvantages
• Risk of lack of expertise
• Cultural incompatibility - differing localised business practices
• Appropriate security for performance required
• Consider religious festivals and holidays:
• Eid al-Fitr
• Eid al-Adha
• Ramadan
• Summertime working hours

5. |
Split EPC contracts
olswang.com | constructiveblog.comKey Developments in Emerging Markets | IBC Legal’s Construction Law Summer School 2015 | 11 September 20155
• Splitting EPC contract into on and off shore works can have tax advantages
• Where there is a split EPC developer/ owner will generally request “wrap” or
“bridging” agreement which:
• takes precedence over split contracts
• provides for joint and several liability of on and off shore contractors
• contains liquidated damages provision for the late performance of entire EPC works
• contains overriding dispute resolution clause
• Imperative for parties to obtain local law advice to ensure contract structure is
compliant with local laws

6. |
Contract administration and expectations
olswang.com | constructiveblog.comKey Developments in Emerging Markets | IBC Legal’s Construction Law Summer School 2015 | 11 September 20156
• Consider relevant legal regime - applicability of notices as condition
precedent to claim
• Guillotine provisions?
• Civil law jurisdictions
• Obligations of good faith and cooperation

7. |
Managing Claims 1
olswang.com | constructiveblog.comKey Developments in Emerging Markets | IBC Legal’s Construction Law Summer School 2015 | 11 September 20157
• Evidentiary issues in international projects
• Without prejudice privilege
• Local rules of evidence
• GCC civil code jurisdictions - only disclose those documents
requested by other side
• Disclosure during mediation may be used in subsequent
proceedings

8. |
Managing Claims 2
olswang.com | constructiveblog.comKey Developments in Emerging Markets | IBC Legal’s Construction Law Summer School 2015 | 11 September 20158
• Managing contractual security
• Performance bonds and standby letters of credit
• Notice?
• Evidence?
• When to call?
• On demand?
• Revocable/irrevocable?
• Enforcement of arbitral awards and court judgments