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43 J.L. Pol'y & Globalization 1 (2015)

handle is hein.journals/jawpglob43 and id is 1 raw text is: Journal of Law, Policy and Globalization www iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) I Vol.43, 2015IllSE Defects Associated with Sub-Surface Ground Conditions in Construction Contracts: A Comparative Legal Synthesis of Aspects of Risk Allocation in Kuwaiti, French, and English Law Mashael Abdulaziz Alhajeri Faculty of Law, Kuwait University, PO box 33977, Rawda, Kuwait Abstract No structure can be erected without ground support. However, preliminary investigation may offer little protection against sudden surprises. Topographical features are therefore of great significance for construction projects, playing a decisive role in cost estimates. It is necessary for a successful construction design to carry out a sufficient examination of the site, in order to determine the plan area available for proposed works, and the nature of the subsoil with view to deciding the correct design for foundations or methods of the underground working. The present paper purports to elucidate this concept in its legal framework. The plan of campaign in the legal analysis is a comparative one, with particular emphasis on the position of the Kuwaiti, French, and English Law. The purpose is to sketch some of the key questions in this area, and to assess the present state of the law. The discussion reveals that construction contracts essentially take as their standard the strict liability of constructors, ie architect/engineers and contractors; the soil risk is their risk, and their degree of responsibility rises with their technical qualifications. This topic is of particular importance to Middle Eastern and North African countries, in which civil codes draw extensively from their French counterpart. However, although these systems generally enforce a decennial liability scheme, many governments in the region, including Kuwait, has long adopted the FIDIC form for public works contract, albeit with considerable modifications. Statements and opinions as to the law in any jurisdiction should not be taken as definitive. In any particular instance, legal advice should be sought. Keywords: construction law, Kuwaiti law, French law, English law, ground conditions, liability, contract, tort. 1. Introduction Soil risk is the greatest unknown in the course of construction.1 Its economic priority grew significantly in recent decades, due to an increase in subsurface works (tunnels, subways, etc.). It is typical for this ratione soli risk to play a significant role in construction contracts over all phases of building - including the guarantee phase. A variety of legal and financial consequences could be triggered when the building turns out to be defective because the ground is lacking sufficient stability. As per Catz, the unseen part of a floating iceberg that lies beneath the surface is the most fitting comparison for this situation.2 Various reports show that the largest element of technical and financial risk in building and civil engineering projects normally lies in ground-related problems,3 which lead to late completions, high cost overrun, in addition to legal complications (risks, liabilities, extension of time, etc).4 Notwithstanding, comparative law literature reveals that very scant attention is paid to discussions about responsibility for defects resulting from sub-ground conditions; most of the little information available comes in the context of the discussion over adverse ground conditions. Against this backdrop, the purpose of this paper is deliberately narrow. It is immediately concerned with the problem of defective works, which are attributed to the nature of the ground upon which construction work was carried out. 2. Sub-Surface Investigation Defined Technically, sub-surface investigation refers to the geo-technical analysis of the sub-soil. It covers a wide range of studies on soils and foundations such as soil-structure interaction, soil properties and behavior, impact of groundwater table movement on building foundations, analysis of surface subsidence (sinkholes) and design of 1 For more on the abstract notion of 'risk', see: Mashael A. Alhajeri, 'The Risk Concept on Modem Tort Map: An Analytical Approach to English Law', Kuwait University Journal of Law, 25, no. 3 (September 2001). 2 Jacques Catz, Les constructeurs et le risque du sol (Paris: Editions du moniteur, 1985), p. 253. 3 See generally: Julian Bailey, What Lies Beneath: Site Conditions and Contract Risk, International Construction Law Review, 2007, p. 394. And see also: Ellis Baker and Michael Turrini, The Underlying Problem: Negotiating the Ground Conditions Issue, a paper presented to the Society of Construction Law, London on 6 November 2012. 4 Wafaa Kanaan, Unforeseen Site Conditions, (Kuwait: Kuwait University Faculty of Engineering and Petroleum, n.d., unpublished), p. 10.

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