International Construction Contracts and Issues - Research Paper Example

International Construction Contracts and Issues Introduction and Problem Statement: This part of the thesis defines the international contracts and provides an introduction to contracts in general. The focus of the research paper is considered along with the main problem and the contexts are also described in terms of whether the topic is researchable and if so what the different modes of research are and how the research agenda could be handled. The context here would be the applicability of international contracts considering construction projects around the world. Some of the problems that might affect the contractors and contracts implementation would be risks and joint venture, political and labour issues, cultural problems. The problems are also discussed here and form part of the contracts and implementation of contracts within various contexts. The directions for future research could also be considered in terms of research objectives and aims of the research problem. The research problem naturally leads to the aims and objectives of research and sets the directions for future research considering not just the implementation of contracts but also the other associated issues of the contract and the problems that might be an obstacle to its implementation. It is generally believed that in an expanding world of trade and commerce it is necessary for legal systems around the world to develop harmonious and orderly regulations of international transactions. International contracts and the concerned parties should be free from all domestic legal constraints and this would raise question son what constitutes the international contract and what would be the most effective contractual stipulations. Here the problem would be to provide a comparative analysis of all international contracts and how they are relevant in the construction industry. Thus the applicability of contracts within the construction industry, delineation of different types of contracts and the role of contracts in business agreements and relationships in the construction industry would be studied in this paper. Research Objectives and Approach: As a researcher it is essential to understand whether the objective of the research is clearly stated and how the purpose and aims of research could be further investigated. The objectives of research should be derived from the outline of research and the description of the research should include the approach that would help the whole research project to reach its objective. The approach of research should be considered appropriate only when the research methods and procedures reach the research agenda and fulfill research objectives. Fulfilling research objectives could have several implications, as objectives define and are defined by the research agenda and clearly sets the directions of research. However many issues at once are considered to understand the set research questions and objectives and the importance of contracts in the global market, as is the case in this study. The approach to research however is defined by methodology and the procedure by which the research questions are approached and analyzed. This in turn could make it possible to evaluate the overall contribution of the dissertation and research in enhancing knowledge and understanding of the central title of research. The research questions and approaches are thus based on several issues 1. the definition and meaning of international contracts 2. The relevance of contracts and contractual agreements within the construction industry 3. The role of contracts in a globalized market and industry and in construction industry 4. The important elements in partnerships and relationships between companies and business organizations, especially within the construction sectors 5. The elements of trust, success, partnerships, risks, honesty, uncertainty and responsibility within the construction work environment 6. The success and performance of joint ventures and their entry into world markets for more globalized impact, especially in relation to the construction industry 7. Understanding international laws and how international contracts and agreements fit into these laws to offer smooth transaction between partners and businesses worldwide 8. Identifying Risks, Cultural issues, Joint Ventures, Legal Issues, Political, Labour, Materials, Technology and the directions for future research in construction and other contractual agreements 9. Focus on the different types of construction agreements and contracts Objectives and Contribution to the Knowledge Area: The objective of these research questions would be to identify: 1. The meaning of international contracts 2. The role of international contracts in business relationships and construction agreements 3. Risks, uncertainty, legal issues and materials and technology for future research on construction agreements 4. The use and applicability of international contracts for successful projects dealing with partnerships and joint ventures This thesis intends to contribute significantly to the knowledge area and will be done with a view to facilitate an understanding of issues such as international agreements and their contexts and clauses. It also enhances specific understanding of international contracts in engineering and construction industry. In this case, the thesis focuses specifically on the research potential of international construction and international construction contractual agreements and how these could be defined and understood considering the broader context of globalization, joint partnerships issues and other considerations that could help understand the global perspectives, the advantages and disadvantages of international construction contracts. This research also focuses on the differences if any between construction contracts and other types of business contracts and the variations in perceptions of contractual agreements affecting businesses, partnerships. The various elements of partnerships, ventures and contractual agreements are also studied to understand the potential of mergers, ventures and other partnership agreement that would in turn have direct impact on contractual agreements signed or proposed for the future. The research directions in this case would be related to understanding the different types of international contracts and construction contractual agreements, their roles in developing or supporting joint ventures initiatives and partnerships, the use of these agreements to develop trusts and long term ventures that could help companies to explore international markets and the use of such features to expand business locally and globally. Proposed Chapter Heading: The chapters that would be necessary in the dissertation include: 1. Introduction 2. Research Objectives 3. Literature Review and Background 4. Methodology 5. Data Collection 6. Results 7. Discussions and Analysis 8. Conclusion 9. Bibliography 10. Appendices Literature Review and Background: Understanding International Contracts The international contract is an instrument or a tool used by nation states and international organizations to regulate business deals and procedures and this is governed by international law. International law applies to cases of development of law, creation of international organizations and resolution of international problems and conflicts. Some of the major international agreements could be treaties, conventions, charters and pacts although international contracts between organizations and business parties would be agreements on a smaller scale following international law and subject to wider jurisdiction. Construction agreements between parties are in many cases international contracts and highlight the nuances of international construction and the increasingly globalized construction market. International contracts have a major role to play in local and global businesses and in the entry or inclusion of new businesses within a global market worldwide. There are of course other dimensions to the understanding of the role of such contracts and this could relate to understanding business decision making and expansion of businesses in the global market. It also brings out the dimensions of trust and long term partnership that may have a social rather than strictly a business component as more and more companies explore different aspects of business and how to make it better, more human and more effective in an increasingly globalized world. Here is where the role of contracts and agreements become important as within a legal framework it is possible to understand the role of agreements more systematically and even analyze the pros and cons of the legal issues associated with contracts and agreements highlighting several associated factors that can affect construction and other businesses. The difference could be drawn although similarities could also be sought between general business contracts and particularly between business and construction contracts. However this would require a specialized research direction differentiating general business and construction contracts. Some of the related questions that the review of literature and background studies seem to handle deal with would be understanding whether there is a comprehensive compilation and assimilation of a broad range of knowledge as related to the subject matter. Whether and how different types of literature sources, comprising of past and present information could be used and applied as appropriate within the context of the research study. Whether the literature review issues have been adequately and properly identified and whether the critical review of literature such as the contents, data collection methods, data analysis methods could relate to the implications for the proposed and further research. In this case, the review focuses on the construction contracts and agreements within the construction industry. The phenomenon of globalization has allowed for more contractors to enter international construction markets and the potential international construction market is valued at $3.4 trillion by Han (1999). Only 3.4% of this potential volume is open to an international market and are taken over or dealt with by multinational foreign firms. The globalization of the construction markets, internationally and nationally as well provides construction contractors the opportunities to expand beyond their own boundaries and so more and more such contractors are trying out newer foreign markets because in a way local firms are competing internationally and international firms tend to compete locally in an ever globalized world. In the international construction environment some of the hypothetical questions that may provide more information about the industry and the contractors in general would be as follows: (Han et al, 2005) 1. Do decision makers display different risk attitude toward “loss and gain” and “different risk-return profiles?” 2. Do decision makers basically take on risk averse in making realistic bid decisions? 3. Does a decision makers’ basic risk attitude influence the actual bid decisions? 4. Can bid decisions vary with respect to the project conditions ~ personal experience?~ decision tools ~ and the decision makers’ nationalities? (Han et al 2005) Uff [1989] has suggested that the construction contract could be used to explore construction efficiency and to achieve reform and the contract strategy usually responds to drastic changes or emergence of specific problems in construction that require solutions. The types of construction contracts are given as follows: (engineeringtoolbox.com, 2009) Lump Sum Contract This kind of contract implies that the engineer and/or contractor would do a specified project for a fixed price. This is also called the "Fixed Fee Contract" as in engineering contracts. Unit Price Contract This kind of contract is based on quantities of items as included or estimated in the project and their unit prices. The final price of the project is dependent on the quantities needed to carry out the work. Cost Plus Contract A contract agreement where the purchaser would agree to pay the cost of all labor and materials plus the fee for contractor overheads and profit (usually as a percentage of the labor and material cost). Incentive Contracts Compensation is based on the engineering and/or contracting performance according an agreed target with respect to budget, schedule and/or quality is reached. The two basic categories of incentive contracts are Fixed Price Incentive Contracts Cost Reimbursement Incentive Contracts Percentage of Construction Fee Contracts These types of contracts are common in construction and for engineering contracts. Compensation is based on a percentage of the construction costs.(From engineeringtoolbox.xom, 2009) Types of Building Contracts: Contractor services are obtained with the method of procurement and choice of contractor could affect design and decision making. The various types of building contracts include lump sum contracts with bill of quantities which has often been considered as the most effective type of contract. A bill of quantities is issued to contractors for pricing and the bill should have sufficient information to proceed with the project. Schedule of works, conditions of contract, tender forms, drawings and bill of quantities are necessary parts of such contract. In case of prime cost contracts, contractors are reimbursed for materials, labour, plant as also for covering overheads and profits and this could be based on a fixed fee or percentage of costs. Contracts could also be based on schedule of rates as contractors could tender on the agreement of scheduled rates instead of a contract sum. Payment would be related to the work undertaken. In measured term contracts, contractors are selected for a given period of time and undertake projects in a number of sites and such type of contracts are used by large property holding organizations. Jobbing orders are short term straightforward contracts. In design and build arrangements of D&B contracts, the contractor offers to design and build the project for a sum that involves cots for the design and also the construction. Only certain highly efficient contractors can provide clear briefs of such projects and only large established firms engage in such agreements. The entire cost of tendering being high, design and build option seems to be favored by many firms as it is more comprehensive and less time consuming. There are many forms of contract such as the FIDIC, NEC, International Civil Engineering Contract, AS 4000 contracts. The NEC contracts aims to tackle dispute resolution and client dissatisfaction. Also the NEC contract is more flexible and the legal hassles are avoided. FIDIC contract is popular as providing standard forms of contract that could be used between employers and contractors on international construction projects and are especially applicable for work in mechanical engineering, civil engineering and design and build construction. The AS 4000 contracts are general contracts that are used for the supply of equipment without the installation and it is an agreement between buyer and supplier. Differentiating International contracts and Construction Contracts: Maybe it would be necessary to ask how an international contract in general differs from an international construction or business contract. In a way, contracts may be subject to the same laws and structures, procedures although the relationship specified between parties could vary in these cases as business relationship and business partnership could involve different clauses and in many cases contracts may not just be between parties in a business relationship but also between partners and stakeholders of companies and businesses. In certain cases however contracts may involve two parties, the buyers and the sellers although the presence of the contract itself could make the entire process more cumbersome and complicated due to the legal elements involved in any contractual condition or agreement. Finally an agreement is based on many factors and one of these is trust and the trust as expressed by both the parties involved in a contractual relationship. As Wong et al (2008) have projected the trust factor tends to establish and sustain relationships as studied in the social sciences and trust helps to reinforce individual affirmative willingness, confidence and expectations, beliefs, behavior and help overcome uncertainty. It is essential to maintain an amicable relationship in a trustful environment that would help to bridge gaps, establish faith and synergize strengths of members in an organization (Wong et al 2008). Construction Contracts in the Global Markets Han et al (2004) discussed how with opportunities in the global markets, the risks for construction industries have also been increasing and this is also true in case of contractual agreements. International construction projects are vulnerable to all kids of risks and all risks involve certain amount of complexities although there could be an examination of certain key success factors that when used could maximize a firm’s value within a challenging global business environment. Financial risk management for international projects requires substantial planning and these tend to integrate risk hierarchy at individual and corporate levels applying decision making initiatives at the firms that could improve total value. A case study from a general contractor as studied by Han et al provided guidelines for future research in understanding industry practice and practitioners. International construction firms engage in joint ventures or expansion as they can take their profits to or bring in profits from overseas. It is possible to increase profits with foreign projects and working on a global scale in a global market. This of course brings in added risks and burdens of financing could destabilize systems and pose a threat to international construction projects. There are other risk factors such as currency and interest rates, inflation, credit, and other business risks that firms are exposed to although it may be difficult to identify risk factors and variable or that which would reduce risks and maximize benefits in a global environment. Construction companies like other global firms would be driven by a profit oriented approach although this should tally with the goals and learn how to tackle risks that may help or hinder such companies’ growth. For risk exposures worldwide it is necessary to implement strategic risk management and structures and maximize the company potential. The financial risk factors such as currency exchange and inflation rates could influence a firm’s position especially in a economic downturn situation. Multinational companies often select project and global projects to maximize the value of their portfolio and some of the questions that relate to understanding the modus operandi of international projects taken by international construction firms have been given in the form of following questions: (Han et al 2004) 1. What are the current approaches used for selecting international projects? 2. How can the tradeoff between risk and return be optimized in the international construction market? 3. What are the most important criteria for the optimal selection of new projects and how can a firm combine these criteria? 4. What are the essential benefits in using a multicriteria portfolio procedure to select potential international projects? (from Han et al, 2004) The presence of trust between parties and trust between members of an organization helps improve organizational culture and fosters fair play. Trust between members also prompts them to have faith in the organization as a whole and work according to policies and procedures. The relationship among contracting parties is largely guided by trust as trust plays a major role in construction partnering and in buying and selling relationships. Trust is considered as a relationship lubricant as it smoothens and defines relationships although its importance has not been subjected to very extensive research. It is important to understand how trust or associated factors work within a contracting environment and how these concepts could be used in an operational level (Wong et al 2008). Trust in Construction Contractual Agreements Wong et al discussed the trust factor and tried to establish a trust framework within construction contracting tracking behaviors and modes of communication in trust development. Trust is also considered multidimensional and could be categorized as system based, cognition based and affect based according to the authors. This brings us to the question of how far trust could be used as a factor in defining or explaining construction contracts and how far trust plays a role in contractual agreements between parties? Trust it is said plays a role in functioning of organizations and in development of organizational relationships and strengthens communication channels between individuals and in society in general. It goes without saying that trust is an important conceptual element in any kind of relationship and its importance or centrality within the construction contracting agreement would be explicable and researchable in a certain way. However any international construction contract has other importance element. The next step would be to understand the directions that trust leads to. Trust strengthens and develops partnerships such as joint ventures and in one paper, Sherif (2003) discussed partnerships in the form of joint ventures as an important element of contracting organizations and relationships between partners. Sherif studied the performance of international construction joint ventures operated by Australian and British contracting organizations. The success and risk factors and the performance of organizations were studied in terms of partner selection, venture formation, operations and performance. Venture formation however tends to be strongly related to performance and an operational environment. There may be a negative impact of government related risks on these construction business partnerships although venture performance itself may not be significantly or directly affected. It is imperative for any company to select a local partner and adopt a risk management strategy to deal with venture performance. Ventures and Construction Contracts: The global business environment has seen several changes during the last few years of increased globalization with joint ventures emerging as very popular strategy in emerging markets and this has led to use of new technologies in business as business partners required communication often at a distance and a range of unique activities that had to be supported by improved technological possibilities. The complexities and risks in major construction projects could highlight diverse strengths and weaknesses of organizations which remain involved in projects. Joint ventures are international when one of the partners’ businesses and offices are located outside the country in which the partnership is taking place. Joint ventures are especially relevant in a globalized world and partnerships being largely based on trust rather than strict contractual regulations, several dimensions of construction contracts are revealed through research studies of joint ventures. Construction companies have successfully used joint ventures and partnerships as routes to entering new markets and the international or globalized business scenario. Joint ventures are also seen as instruments of development as in developing nations and joint ventures prevent a distinct hierarchy in business or complete takeover of business by foreign companies. In a study by Sherif, questionnaire surveys were used to investigate the relationships between risk and success factors as also performance of ventures. The key processes examined were partner selection, venture formation, and operation on venture performance. The results have suggested that partner attributes influence venture formation and this tend to positively affect operations at all levels. The paper has continually emphasized on the positive aspects of venture formation, mergers and using of joint partnerships for improvement of operations and gain of exposure in a foreign market. Joint ventures are thus in a way positive element in a construction contract as contract that indicate agreements to operate closely and in sync with regard to certain factors could be taken to the next level with JVs and partnership agreements. JVs are a step forward in construction contract agreements as partnerships here implicate moving beyond boundaries, exploring global markets, using partner selection and operation and performance measures positively to understand organizational gain and help both the companies to grow with mutual agreement. Risks, Bonds and Contractual Agreements International construction can incur risk situations both in the domestic and international markets although there will be a lot of uncertainty in case of risks specific to international transactions. Han et al 2005 believes that despite globalization trends the risks involved may be too high to take businesses abroad and many companies are wary and in most cases globalized move and complying with the pressure of globalization would mean adhering to legal structures and the international contractual agreements. In some cases these contracts would decide on risk factors and bad decisions and even save the company from major risks in certain cases. That is how these agreements would be absolutely necessary for any company making a move and expanding its businesses globally. Risk attitudes and behavior could affect the selection of international projects and there could be multiple possibilities such as weak risks in profit situations or strong risks in loss situations and there could be risky opportunities as well. However risks are mitigated with insurance and bonds that form part of a contractual agreement. For example surety bonds are frequently used in the construction industry and a third party ensures that contractual obligations will be met. These are sometimes issued by banks and all types of bonds are seen as security or guarantee of a construction contract. Experimentation with bid behavior could bring in complications within construction projects that could reveal risk aversion and Han et al’s study brings out the biases and errors in bid decision and general decision making mainly due to perception of risks. Han et al 2005 begin by suggesting how globalization has opened up international markets for the construction industry and the potential international construction markets are valued at approximately $3.4 trillion. In one example, a study by El-Sayegh (2008) identifies and assesses the significant risks in the UAE construction industry and for purposes of the study, questionnaires were distributed to construction experts. Economic risks of credit changes, inflation risks, shortage of material and resources, changes in prices and labour supply and owner risks of improper intervention and design changes as also schedule were some of the risks identified and according to this paper the political or social risks and cultural risks even with globalization have been found to be minimal and insignificant despite many studies claiming the importance of such risks. It seems in the UAE more risks are on contractors and shared between contractors and very few risks are directly related to owners of construction businesses and companies. Contractors may face legal risks and compliance issues in a global market or labour risks and shortage of resources or sudden economic changes that affect prices of goods and materials used. Finally it would be about risks related to profits and losses and can directly or indirectly affect company output and performance. The use of bonds and insurances given by banks could be highly effective in making contractual agreements more secure. The risk factors, the modes of working within a construction company, the objectives and the approach take by the construction firms, the bonds and insurances provided in the contract are all important and form essential part of any business endeavor and highlight issues that are closely relevant to the contractual agreement. This research focuses on these various aspects of contractual agreements the relevance of contracts and the distinctive features of contracts in a global environment. Disputes in Construction Agreements: Disputes may be common in many international contractual agreements due to the wide variations in legal, contractual, cultural and other factors. The resolution methods can also subsequently vary and these could be arbitration or adjudication, mediation or expert-determination litigation, intervention of a dispute resolution board, and mini trial. The selection of the most effective and appropriate resolution methods could be based on the nature of the dispute and the needs of the parties. A dispute resolution selection prototype (Model) has been presented by Chan et al (2006) using data from 41 experts who were barristers, arbitrators, mediators, and project managers. The model has been based on the analytical hierarchy process and multi-attribute utility technique (MAUT). According to Chan, ‘The Model is considered beneficial to the industry, as it provides construction professionals with a systematic and objective approach in the management of international project disputes’ (Chan 2006, p.449). Cultural Issues in International Contracts International construction projects involve multinational projects, conditions and participants and there could be a participation of individuals and parties from different political, legal, economic, and cultural backgrounds (Chan, 2003). This could be one of the major bases for both cooperation and conflicts or disputes. Cultural influences and adversities and advantages are some of the major issues affecting the management of international construction projects. The impact of cultural issues on contractual arrangements; such as conflict causation, and the selection of dispute resolution mechanisms for international construction projects has been studied by Chan (2003) who provided the foundation for future research in the area of conflict and dispute resolution based on cultural considerations. The emphasis is that, international construction activities and disputes could be discussed within the cultural context. Chan carried out surveys in London, Sydney and Hong Kong and highlighted cultural differences in contractual agreements and perceptions of contracts. Apart from the MAUT model and Chan’s emphasis on cultural considerations, there are other methods of dispute resolution used within construction industries. Recognition and introduction of an effective dispute resolution mechanism, is an integral part of the overall procurement system among several other issues, and construction companies and disputing parties often have mediating companies to help resolve disputes. Arbitration companies which are used for dispute resolution also set up high powered committees to mediate/harmonize and highlight the core conditions of domestic bidding contracts. These mediating firms also recommend model contractual documents, and suggest and facilitate provisions for a speedy dispute resolution. Conclusion: The research questions and issues highlighted here have focused on several factors in the contractual agreement and especially as they are relevant within the construction industry. Finally factors which tend to affect business locally and globally seem to be related and can only be understood in relation to each other. In a similar manner the tests and study of the research questions and the implications of using and applying international contracts in the global arena will have to be studied from a wide contextual viewpoint that this research aims to pursue. Thus the limitations are related to applicability of research and the fact that comparative analysis of all international contracts will have to consider contextual and cultural issues as well. Bibliography: Bayliss R, CHEUNG SO, SUEN CHH and WONG PSP (2004), Effective partnering tools in construction: a Case Study on MTRC TKE Contract 604 in Hong Kong The International Journal of Project Management,  22(3): 253-263. Chan Edwin H. W., Henry C. H. Suen, and Charles K. L. Chan, (2006) MAUT-Based Dispute Resolution Selection Model Prototype for Iinternational Construction Projects Journal of Construction Engineering and Management, Vol. 132, No. 5, May, pp. 444-451 Chan Edwin H.W., and Ann T.W. 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