NEC3ECC Clause 10.1: An Enforceable Contractual Duty of Trust and Co-operation in the Construction Industry?

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Stellenbosch Law Review

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University of Cape Town


Department of Commercial Law

This paper discusses the NEC3ECC (a standard form contract widely used in the South African construction industry), with particular regard to its Core Clause 10.1, which creates the obligations to act as stated in the contract and in a spirit of mutual trust and co-operation. The authors, who comprise two legal scholars and a legal practitioner, shed light on this clause, using both textual and contextual approaches. Our aim is to explore how the norms of trust and co-operation – inter-linked notions from the paradigm of relational contracting – are carried through to the performance and enforcement stages of a construction contract based on the NEC3ECC. We also investigate how these norms manifest in the realm of dispute resolution with reference to both formal, traditional legal proceedings and alternative forms of dispute resolution. Our conclusion is that the good faith duties created by clause 10.1 do not translate well into adversarial dispute resolution processes, particularly in a curial setting, and that the phrase “mutual trust and co-operation” is generally viewed as not adding much to the obligation to act as stated in the contract.