해외건설프로젝트에서 시공자들의 건설공동수급체

초록

A contractual joint venture (also referred to as a “consortium”) is one of the mostpopular types of vehicles for collaboration between parties involved in internationalconstruction projects. Korean construction companies also frequently utilize this form ofvehicle. All of partners of a contractual joint venture, irrespective of their actualinvolvement in the project, are jointly and several liable toward the employer and otherthird parties. Accordingly, the employer can seek compensation or pursue other remediesfrom any partner of the joint venture in case of a breach of the construction contractby any of the partners. Is it fair enough? There is a controversy between joint &several liability and proportionate(or several) liability. This article reviews legal systems of common law countries, such as England, theUnited States and Australia in that regard. England still maintains the principle of jointand several liability while Australia has adopted proportionate liability legislation since1990. However, since Australian states and territory are not uniform in operating theproportionate liability, it should be careful to designate as a governing law a certainstate. Further, several states legislations do not allow parties to contract out of theproportionate liability. In the United States, 50 different states have different views butthey generally take a view of joint and several liability along with several exceptions. Although all partners are jointly and several liable toward the employer, the interpartes liability is usually described in great detail in the joint venture or consortiumagreement. Koran companies should give careful thoughts on internal profit and losssharing mechanism and reflect them to the agreement. Another way that Koreancompanies can escape from the joint and several liability is to include a netcontribution clause in the construction contract. Such clause limits the liability whichwould potentially be apportionable to a defendant under joint and several liability to theamount which the defendant would be liable to pay if contribution were obtainable fromthe other concurrent wrongdoers. In this way, it essentially ‘neutralize the effect of jointand several liability’ by calculating liability for damages on the assumptions that: (1)any other wrongdoers responsible for the same loss are likewise contractually liable to the claimant; and (2) all other such wrongdoers have paid the claimant the proportion of the loss which would have been apportioned to them under the contribution. A contractual joint venture (also referred to as a “consortium”) is one of the mostpopular types of vehicles for collaboration between parties involved in internationalconstruction projects. Korean construction companies also frequently utilize this form ofvehicle. All of partners of a contractual joint venture, irrespective of their actualinvolvement in the project, are jointly and several liable toward the employer and otherthird parties. Accordingly, the employer can seek compensation or pursue other remediesfrom any partner of the joint venture in case of a breach of the construction contractby any of the partners. Is it fair enough? There is a controversy between joint &several liability and proportionate(or several) liability. This article reviews legal systems of common law countries, such as England, theUnited States and Australia in that regard. England still maintains the principle of jointand several liability while Australia has adopted proportionate liability legislation since1990. However, since Australian states and territory are not uniform in operating theproportionate liability, it should be careful to designate as a governing law a certainstate. Further, several states legislations do not allow parties to contract out of theproportionate liability. In the United States, 50 different states have different views butthey generally take a view of joint and several liability along with several exceptions. Although all partners are jointly and several liable toward the employer, the interpartes liability is usually described in great detail in the joint venture or consortiumagreement. Koran companies should give careful thoughts on internal profit and losssharing mechanism and reflect them to the agreement. Another way that Koreancompanies can escape from the joint and several liability is to include a netcontribution clause in the construction contract. Such clause limits the liability whichwould potentially be apportionable to a defendant under joint and several liability to theamount which the defendant would be liable to pay if contribution were obtainable fromthe other concurrent wrongdoers. In this way, it essentially ‘neutralize the effect of jointand several liability’ by calculating liability for damages on the assumptions that: (1)any other wrongdoers responsible for the same loss are likewise contractually liable to the claimant; and (2) all other such wrongdoers have paid the claimant the proportion of the loss which would have been apportioned to them under the contribution. legislation.

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