Risikoverteilung in internationalen Mustervertragsbedingungen für Bauleistungen – Analyse der Regelungsmechanismen und Entwicklung einer fairen Risikoabgrenzung zwischen den Vertragsparteien

Abstract

Ziel der vorliegenden Arbeit ist eine wissenschaftlich fundierte, vergleichende Untersuchung von Mustervertragsbedingungen sowie einer Analyse der Regelungsmechanismen zwischen Auftraggeber (AG) und Auftragnehmer (AN). Zentrale Forschungsfrage dabei ist, ob mögliche Handlungsschritte und Adaptionen auf Basis des deutschen Rechtsverständnisses entstehen können, ob Regelungen aus den hier untersuchten Musterverträgen auch in Deutschland zu einer weiteren Reduzierung von Risiken beitragen könnten. Die vorliegende Arbeit möchte Gemeinsamkeiten und Unterschiede der untersuchten Musterverträge herausarbeiten. Be-trachtet man die Differenzen stellt sich die Frage woher diese resultieren. Gründe hierfür könnten in der Typisierung der Projekte oder aber das zugrunde gelegte Recht sein. Bei den gemeinsamen Aspekten wird untersucht, ob es sich um bewährte Regelungen aus der Praxis handelt.

The subject of the work is a comparative analysis of model contract conditions (VOB/B, FIDIC, NEC3, Orgalime, AIA, CPC2013) as well as an analysis of the mechanisms between owner and contractor. One of the central questions here was whether possible steps for action and adaptations of these international regulations could arise on the basis of the German understanding of the construction law. In order to make it easier for German companies and institutions to provide construction services abroad without having to forego legal protection.

The central object of the work is to examine the opportunities and risks associated with changes to construction contracts. Here can a divergence between the general terms and conditions from the continental European legal area and those from the Anglo-American area be shown.

Changes are usually assessed on the same basis: If the Contractor is not responsible for the change, he shall be appropriately remunerated for his performance. The third party in the contractual structure shall decide whether the Contractor’s claims are justified. For contracts in accordance with the German VOB/B, the owner will regularly make use of a third party outside the contract who will advise him on issues arising from the construction contract.

Apart from the change in the construction target, the construction period is one of the essential factors for the realisation of construction and plant construction projects. It should be noted that the owner is responsible for delays arising from his area of risk, the Contractor for delays arising from his. If none of the parties could realistically avoid the realization of a risk, the contracting parties "share" the corresponding risk. This includes weather events which, for example, entitle the contractor generally only to an extension of the construction period, but not to a change in the remuneration. The proof must be provided by the Contractor.

The handling of the various model contract conditions diverges in the event of unforeseeable events. The sample contracts from the continental European¬ legal system are based on the legal definition of “höhere Gewalt”. In the other patterns, however, these events must first be defined. In detail, the definitions of the events differ from each other. Likewise, the consequences are different. The aim is to avert damage from the contractor so as not to jeopardise the realisation of the project or to avoid unnecessary risk surcharges.

In order to determine the amount of the remuneration for the unit price contracts examined here, the Contractor shall, if necessary in cooperation with the third party, measure the service rendered. These quantities shall be multiplied by the unit prices agreed in the contract. Changes are also recorded. This results in the amount to be paid. This procedure is the same for all contracts and applies to advance payments. However, it is also possible that partial payments initially follow a payment plan.

In contracts from the Anglo-American legal sphere, the Contractor must coordinate the measurement with the third party. On this basis, he applies for the release of the payment and then issues his invoice. If the third party and the Contractor cannot agree on a joint amount in the measurement, the third party must immediately certify the undisputed amount. The German VOB/B does not provide for such a procedure, although it is customary in practice for a vicarious agent of the owner to check the measurements before accounting. In most cases. Thus, the employee goes through a process here that is not regulated.

In the further course, the procedures for resolving disputes in the contract will be examined. Only in the contracts from the Anglo-American legal sphere is the use of alternatives to state courts prescribed in the first step. The aim of these dispute settlement procedures is to mediate the third party in the contract between the parties and to find a solution through negotiations. If these negotiations fail, the third party shall make as fair a determination as possible.

If one of the parties isn’t satisfied with the decision, it may have it reviewed by at least one other instance. The aim of this procedure is to make a quick decision by persons who are familiar with both the relevant specialist area and the specific construction site or project. Only after at least these two instances can persons be called who are not directly connected with the construction contract. These may be state courts or private arbitral tribunals.

A termination can, no matter from which side, always only be the Ultima Ratio. Before a termination is pronounced in practice, many circumstances have usually already occurred which impair the trust between the contracting parties. The dispute settlement procedures in the sample contracts, where they exist, have also been regularly used to settle the dispute amicably.