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Legal drafting is one of the root causes for interpretation errors and misunderstandings in construction contracts. Moreover, most construction personnel do not have legally trained background. Therefore, the purpose of this paper is to determine the feasible use and practicality of Plain English in clarifying legal drafting in Malaysian construction contracts.

Two research approaches were adopted, namely, Delphi research and case study. The Delphi method was to elicit local experts’ knowledge and consensus view on the given examples of restructured contract provisions. Next, an actual case study was conducted to examine and substantiate the research findings by critically reviewing the latest and revised standard form of contract for its Plain English usage.

The Delphi research shows that all the restructured contract provisions were agreed by the local experts; whereas the case study reveals that significant changes and the acceptance of Plain English in most of the contract provisions.

The research renders insightful references in clarifying legal drafting in construction contracts based on the empirical evidence and the use of Plain English from the Malaysian scenario. It also contributes into the resolution of contractual differences and conflicts caused by the misunderstandings or interpretation problems.

The purpose of this paper is to review the extensive case law in England and Wales on contractually binding letters of intent. The research focused on discovering whether the limits commonly found in binding letters of intent were upheld by the courts and so were effective in practice. It also reviews whether these limits are, as presumed by drafters, sufficient to act as incentives to the parties to conclude the full contract. The paper uses case law to analyse and evaluate the legal and business efficacy of these limits and incentives. It considers the rationale for such limits and incentives before drawing its conclusions and making recommendations.

The paper draws on cases in England and Wales to analyse the judicial interpretation of binding letters of intent. The author has adopted a black letter approach to this subject by focusing almost exclusively on primary sources. As there is no relevant legislation in England and Wales, the primary sources are case law. A limited literature review was adopted, as there is little commentary on this aspect of letters of intent and to ensure the paper’s originality. The paper also considers papers published by the Society for Construction Law.

The paper demonstrates that even if the drafting of the letter of intent is clear, it is the conduct of the parties after a letter of intent which prevents the stated limits on work times or cost applying, and undermines these limits in their roles as incentives intended to persuade the parties to conclude the full contract for the project. The terms of the letter of intent are easily ousted and may not be strictly enforced by the courts when a dispute arises.

The paper concludes with recommendations for ensuring the terms of the commonly used letters of intent provide more effective limits on the liability for the employer while giving the constructor the incentive to continue negotiating and concluding a formal contract for the works. The paper also recommends changes to the guidance to be given to users of standard form letters of intent to improve their efficacy as limited contracts.

The analysis of the cases is instructive and the recommendations provide valuable pointers for those who draft, review or agree letters of intent. The issues that are dealt with relate to how the parties can be incentivised through clear drafting to execute a more comprehensive contract for the project.

The purpose of this paper is to provide Korean merchants and practitioners who are not English native speakers with the practical advices and suggestions in drafting arbitration agreements.

The doctrine of separability of arbitration and the competence-competence principle are studied based on the rules of international conventions and internationally recognized arbitral institutes. In addition, the laws of two common law jurisdictions, which are the USA and the UK are discussed with the Korean arbitration law, which follows the civil law system. This study also includes analysis of cases in order to show application of these two principles to practice and to give practical advices and implications to practitioners.

Most national legislatures and jurisdictions approve the doctrine of separability of arbitration agreement and the competence-competence principle under international commercial arbitration. When there is a dispute regarding the existence or the validity of arbitration agreement, it is determined based on the prima facie test without being affected by the main contract in which the arbitration agreement is inserted. In practice, however, there are many occasions where the arbitration agreements are void or inoperable because of its contents. Many practical advices and suggestions are provided.

This paper analyzes arbitration agreements which are used in practice so that it provides many practical advices to practitioners in terms of legal effects of languages and linguistic use.

This paper examines automated contract writing systems, a vital aspect of public procurement which has replaced the more manual methods of drafting of contracts used in the past. Using the system of the U.S. federal government as an illustration, the various components of a contract writing system are detailed and discussed, distinguishing contract writing from eprocurement and demonstrating how a bifurcated approach has been adopted for contracting automation. The larger implications of this dual nature are analyzed along with misconceptions about contract writing systems and the contrast between the perspectives of procurement versus finance. Future research devoted more to cross-disciplinary issues and human factors affecting contract writing, rather than just systems development issues, may offer an opportunity to improve the effectiveness of public procurement automation.

As a remedy to usually voluminous, complicated and not easily readable construction contracts, smart contracts can be considered as an effective and alternative solution. However, the construction industry is merely known as a frontrunner for fast adoption of recent technological advancements. Numerous administrative risks challenge construction companies to implement smart contracts. To highlight this issue, this study aims to assess the administrative risks of smart contract adoption in construction projects.

A literature survey is conducted to specify administrative risks of smart contracts followed by a pilot study to ensure that the framework is suitable to the research question. The criteria weights are calculated through the fuzzy analytical hierarchy process method, followed by a sensitivity analysis based on degree of fuzziness, which supports the robustness of the developed hierarchy and stability of the results. Then, a focus group discussion (FGD) is performed to discuss the mitigation strategies for the top-level risks in each risk category.

The final framework consists of 27 sub-criteria, which are categorized under five main criteria, namely, contractual, cultural, managerial, planning and relational. The findings show that (1) regulation change, (2) lack of a driving force, (3) works not accounted in planning, (4) shortcomings of current legal arrangements and (5) lack of dispute resolution mechanism are the top five risks challenging the adoption of smart contracts in construction projects. Risk mitigation strategies based on FGD show that improvements for the semi-automated smart contract drafting are considered more practicable compared to full automation.

The literature is limited in terms of the adoption of smart contracts, while the topic is receiving more attention recently. To support easy prevalence of smart contracts, this study attempts the most challenging aspects of smart contract adoption.

Defense acquisition programs are plagued by surging delays and cost overruns. In particular, contract management of defense acquisition programs has been identified as 'high risk' - and threatening to project results. This article examines how contracts, as legal mechanisms, may be disruptive and obstruct cooperation between the DoD and contractors. The main observation this article makes is that tensions between the norms set forth in contracts and other non-legal norms can become a major reason for problems in defense procurement. It explains why these tensions may undermine cooperative behavior between contractors and the DoD and can become a source of disappointing acquisition program results. A framework is provided for identifying such tensions, and contract design principles are proposed to enhance cooperation and eliminate these tensions when drafting contracts for defense acquisition and other complex programs.

Building operation and maintenance (O&M) service, which embraces a wide range of specialist trades, has been increasingly outsourced through discrete contracts. This paper aims to study the issues critical to outsourced O&M contracts for commercial buildings.

The paper takes a transaction cost approach to analyse the findings from face‐to‐face interviews with 22 O&M practitioners in Hong Kong.

The analysis revealed that they practitioners generally had limited understanding about the concepts of contract. Lacking a standard form for O&M contracts, some contracts were formed rather loosely and irregularities in contract conditions are common. Disputes frequently arise from the scope of work although the practitioners considered well defined work scope is paramount to a successful contract.

Besides the need to study how to improve practitioners' knowledge about O&M service contracts, further studies are required to investigate which or which combination of the contract concepts would be suitable for particular types of O&M contracts where their scale and complexity are dependent on the trade of work required to serve the building.

This paper uncovers a number of contractual issues that are critical to the performance of outsourced O&M service for commercial buildings.

Contract incompleteness with deficiency, inconsistency, defectiveness, and ambiguity in contract clauses, which can cause misunderstandings and misinterpretations, may result with disputes in projects. This study aims to investigate contract incompleteness factors with a hybrid fuzzy multi-criteria decision approach.

Contract incompleteness factors were ranked by fuzzy VIKOR (Visekriterijumska Optimizacija I Kompromisno Resenje) method, and the most significant factors were subjected to fuzzy decision-making trial and evaluation laboratory (DEMATEL) to examine their causal relationships. The study is not limited to ranking the identified factors solely, since their cause-effect interactions are also essential for proper risk management in construction projects.

Hybrid use of multi-criteria analysis reveals that ambiguity in enforceability including excessive demands and significant amendments in the scope of works are the top two causal contract incompleteness factors, while lack of implementation details and focus of focal point, and insufficient supporting and technical documents are the most affected ones.

Contractual causes of disputes due to contract incompleteness factors other than requirements of the contracts have been rarely investigated in the literature. The research is one of the first studies in the literature investigating the causal relationship among factors in construction contracts, which might lead to project disputes. Findings are expected to improve contract drafting, eventually contributing to effective risk management in construction projects.

Conflicts, claims and disputes are inherent in most construction projects. Acceptable degree of commonality in the interpretation of contract provisions is critical in effective contract administration. This study aims to assess the effects of contract ambiguity factors on construction conflicts, highlighting the causes of divergent interpretations using fuzzy technique for order of preference by the similarity-to-ideal-solution (TOPSIS) method.

Fuzzy TOPSIS framework with 27 ambiguity factors is constructed by conducting a comprehensive literature review, accompanied by a pilot study. Questionnaire survey is formed, and one-to-one interviews are arranged with 35 contract administration experts.

The findings indicate that (1) ambiguity due to excessive changes in the bill of quantity (BOQ) (including ambiguous provisions related to BOQ changes), (2) incomplete clauses that do not describe the scope of the intended work purely, (3) ambiguity due to excessive amendments in the scope of works (including ambiguous provisions related to scope changes), (4) ambiguous enforceability including excessive demands and (5) ambiguous goal and performance requirements are the top five ambiguity factors affecting construction conflicts.

Presented framework is performed referring to ambiguity factors in all type of construction contracts in the general sense. However, the identified factors may vary depending on the project type, contract type, procurement method or use of standard contract forms (such as NEC, FIDIC).

The literature lacks the investigation of ambiguity factors in construction contracts, yet the assessment of the effects of contract ambiguity is essential to minimize conflicts.

The context of construction management (CM) reveals that this method of procurement is as much a management philosophy as a contract structure. It is important to consider legal and contractual issues in this context. The interplay between management and law is complex and often misunderstood. Before considering specific issues, the use of contractual remedies in business agreements is discussed. In addition, the extent to which standardising a form of contract detracts or contributes to the success of projects is also considered. The dearth of judicial decisions, and the lack of a standard form, render it difficult to be specific about legal issues. Therefore, the main discussion of legal issues is centred around a recently completed research project which involved eliciting the views of a cross‐section of experienced construction management clients, consultants and trade contractors. These interviews are used as the basis for highlighting some of the most important legal points to consider when setting up CM projects. The interviews revealed that the advantage of CM is the proximity of the client to the trade contractors and the disadvantage is that it depends on a high degree of professionalism and experience; qualities which are unfortunately difficult to find in the UK construction industry.