Thesis
Framework for Chinese construction projects extension of time claims analysis through a comparative study between the Chinese and English legal systems
- Creator
- Rights statement
- Awarding institution
- University of Strathclyde
- Date of award
- 2024
- Thesis identifier
- T16922
- Person Identifier (Local)
- 201464408
- Qualification Level
- Qualification Name
- Department, School or Faculty
- Abstract
- In both the China and the UK, delays in construction projects are a common occurrence and the analysis of EOT claims has become a regular part of the work of practitioners and decision-makers. A framework for this work, offering analysts relatively unified evaluation procedures and standards will therefore increase the efficiency of the overall industry. The UK has developed a relatively complete system for EOT claims analysis based on extensive case law, academic research and project practice. EOT claims can thus be evaluated and determined based on relatively unified procedures and a high degree of certainty. Comparatively, China has a significant gap in this field: its systems are relatively undeveloped and EOT determinations tend to be made superficially, often therefore bringing about in justice and legal uncertainty. To fill this gap, this research aims to establish a framework for China through a comparative study of the Chinese and English legal systems, in order to provide a relatively unified basic work procedure and principles to help construction practitioners analyse EOT claims. To achieve this, the research employs a mixed methodology, combining comparative legal analysis with quantitative-based survey research as part of the process of developing and testing the framework. The comparative legal research is conducted through a five-phase research framework. The first phase includes preliminary research work and determines use of the functional method as the principal method of comparison. The conceptualisation phase, using a literature review, decides on a compulsory procedure of EOT claim analysis, and taking into account other factors which may influence the effect of the EOT claim analysis, extends that procedure to a self-contained framework of EOT claim analysis in the Common Law system. It comprises a core module (causation establishment), supported by a proof module, extended by a legal-contractual obligation and procedure compliance module, and affected by an external surrounding module. The works or factors under each module therefore become key concepts or units for the following comparison. The comparison between the two jurisdictions is conducted through identification and explanatory phases at the level of law, contract and project practice respectively. At the level of law, the comparison is conducted on the salient aspects of legal systems, and on how legislation and litigation operate in aspects of proof, approaches and legal-contractual obligations and procedures for compliance with EOT claims. At the contract level, a comparison is conducted of each point in the context of provisions of EOT claims contained in standard forms of contract in the UK and China. Amongst others, comparisons on delay risk allocation, approaches to and instruments for delay and EOT analysis, and claims procedures are conducted. At the level of project practice, a comparison is conducted in the context of industry practice in relation to EOT claims analysis. In the UK, practice and usage developed by the SCL Delay and Disruption Protocol and COIB Guide (A Practice Treatise on Time Management) are used for analysis. In China, the findings provided by relevant literature as well as a separate quantitative investigation with contractors in China are used for the analysis. The comparison finds that, amongst other elements, the law in China lacks relevance to practical problems and leaves legal gaps in many aspects; standard forms ofcontract provide a basic mechanism for EOT claims but have inherent problems such as structure and wording; both law and contract fail to take sufficient account of the unique Chinese culture and therefore have relatively low enforceability in relation to EOT claims; there is significant divergence between the law and contract on paper and in action. Furthermore, in project practice, the industry has not established a mature and unified industry practice or usage in this field, with the result that EOT claims are often processed, analysed and determined in a disordered, reconciliatory and impressionistic way. Finally, having been tested by a quantitative specialist investigation and interviewsas reasonable and feasible, the evaluation and confirmation phase develops a framework for EOT claims analysis for construction projects in China. It firstly provides the general principles of the framework establishment, then establishes two basic analysis principles – the tests of causation and burden of proof, and then provides methods, approaches and procedures for EOT claims analysis and determination, together with proposals for each key concept under each module, to guide practitioners in presenting, demonstrating, analysing and determining EOT claims, from proposals to improve the external environment for EOT claims analysis to improvements in practitioners’ behaviour, attitudes and capability from the perspectives of legislation, litigation, contract drafting and project performance. The research is conducted through the extensive creation of work including conceptualising and concluding a common EOT analysis framework in Common Law; detecting, analysing, and explaining differences and similarities between the UK and China from unique perspectives; and offering a thorough review and evaluation of EOT claims analysis in China from a foreign law perspective. It raises social implications in China by helping to establish time management and EOT claims within industry practice, and provides academic attributions by 1) filling the gap in China with systematic research on time management and EOT claims analysis, 2) providing a pioneering work to establish private construction law in China, and 3) providing a typical comparison study in the field of construction law between two distinct jurisdictions.
- Advisor / supervisor
- Agapiou, Andrew
- Resource Type
- DOI
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PDF of thesis T16922 | 2024-05-20 | Público | Descargar |