CONSTRUCTION LAW

CNST 406

EXAMINATION NO. 3: 

(80 Points)

Instructions:    This is an open-book, open-note examination.  Please provide your best answer to the questions below.  Your grade will be based upon your ability to “spot issues” and to analyze the situation in order to arrive at a credible answer to the questions posed.  Be concise and to the point.  Use good grammar, sentence construction and spelling.  Brevity is appreciated, but please provide a complete answer.

References:

Fact Situation

Fact Situation from Essay No. 3 and Exam No. 2

Lectures Regarding Risk Management and Ethics

Lecture Notes and Chapters 11-14 of the Text

Industry Form Contract Documents (Hand-outs)

FACT SITUATION

You are the Senior Project Manager/Project Executive responsible for the entire Project.

You have successfully negotiated a subcontract with FIGG, which includes a number of risk management provisions, including (a) the requirement for a peer review (to be conducted by Louis Berger, Inc.) prior to using the design documents for construction; (b) higher FIGG malpractice insurance limits; (c) use of a pre-qualified FIGG design team, approved by MCM, lead by senior engineers experienced in bridge design; and, (d) a plan review and approval process with the University, prior to the release of the design documents for construction.  These provisions will require more time to implement, and MCM had to increase FIGG’s contract price by $250,000 to cover FIGG’s added costs.  In view of the risks presented, MCM views the added cost as “good insurance.”

The University has designed Professor I. M. Borring, PE, from its Civil/Structural Engineering Department, as its representative for the purpose of reviewing and approving FIGG’s design, and for overall monitoring of the Project.

In addition, as a further risk management tool, MCM has retained, at its own cost, an independent consulting engineering company, GRT Sluth, Inc., to perform quality testing on the concrete panels as they are being manufactured by C.C Castings.

The design documents have been completed.  Based on reports you’ve received from FIGG, Louis Berger, and Professor Borring, the design has been approved at all required levels and has been released for construction.

You’ve forwarded the design documents to Castings, with your request that they submit the appropriate shop drawings.  Thereafter, shop drawings were received; submitted to FIGG for review and approval; submitted to Professor Borring for review and approval and forwarded on the Castings for manufacturing the concrete panels.

During the casting process, GRT Sluth submits a report that some of the concrete cylinders, used to determine the compressive strength of the concrete, the flex beams used to determine the tensile strength of the concrete, are showing break results less than specified.  Reviews of the concrete mix design shows certain non-specified additives are being used to promote “flowability” of the concrete.  GRT Sluth also reports observing some “minor cracking” in the panels.

You reported Sluth’s findings to FIGG, Louis Berger, Castings, and Professor Borring and requested direction on how to proceed.

FIGG responded that it would take the report “under advisement” and address the issue “in the near future.”  FIGG suggested, that in the interim, MCM should proceed “at its own risk.”  MCM has not received a response from Louis Berger, Castings, or Professor Borring.

As a result, you prepare an RFI (“Request for Information”) reporting the exact test results and observations provided by Sluth and requesting specific authorization to continue casting the panels.  You also advise that the situation is delaying production of the Panels, which is becoming a restraint on follow-on activities necessary for erecting the bridge.

QUESTIONS (80 Points Total)

1. As a result of your RFI, you instruct Castings to stop casting the panels, pending direction from the engineers. Castings, of course, submits notice of a delay claim, duration to be determined, as a result of your direction. (20 Points)
   1. If you respond that the reasons for the delay, including why the concrete hasn’t met specifications and that cracking has been observed, is yet to be determined, so you are taking the Notice of Claim under advisement, pending direction from the Engineer’s/Owner, is that a good response? Why or why not?  (5 Points)
   2. If more than 30 days passes, and you still have no direction from the Engineer’s/Owner what action, if any, will you take? Please explain.  (5 Points)
   3. After 36 days, you finally receive word from Professor Borring on behalf of the Owner, who tells you the issue is a “methods and means” matter for determination by the design/builder (MCM) and its Engineer, FIGG. He issues a “cure notice” directing MCM to provide a written report evaluating the conditions, with recommendations for going forward, sealed by a Professional Engineer.  The response to the cure notice is due in 10 days.  Is this a proper response on behalf of the Owner?  Why or why not?  (5 Points)
   4. After providing FIGG with the cure notice, FIGG responds telling you that it “doesn’t feel comfortable with providing a written, sealed report.” FIGG observes that the problem “lies exclusively with Castings; that the issues do not appear “troublesome,” since concrete will continue to cure over time and increase in strength to achieve requirements; and, that the minor cracking is likely shrinkage and non-structural.  Since it’s a Castings issue, Castings should provide the sealed report required under the cure notice.”  Is this a reasonable response by FIGG?  Why or why not?  (5 Points)
2. When you present the cure notice to Castings, Castings has an immediate, affirmative response, that: “we are not responsible. We are casting according to the specifications, approved design, and approved shop drawings.  If there’s anything wrong it’s not our problem.  When do we get paid for the delay, no approaching 40 days?”
   1. Does Castings make a good point? Why or why not?  (5 Points)
   2. What is your response to Castings? Please explain.  (5 Points)
   3. Do you have a response to FIGG? If so, what is your response?  (5 Points)
   4. Do you have a response to the University/Professor Borring? If so, what is your response?  (5 Points)
3. Clearly, MCM has suffered delay – well over 40 days at this point, which is continuing.
   1. Is the delay resulting from this situation excused? Why or why not? (5 Points)
   2. Is the delay resulting from this situation compensable? Why or why not? (5 Points)
   3. At this point, does the delay affect the critical path on the schedule? Why or why not? (5 Points)
   4. Assuming MCM goes forward with making a delay claim, what must MCM do to “perfect” its delay claim against the University? Please describe the process.  (5 Points)
4. As to the “reviews” provided by FIGG, Berger and Professor Borring …
   1. Does FIGG’s, Berger’s and Borring’s review and approval of the design documents have any effect on this issue? If so, what is the effect?  (5 Points)
   2. Does FIGG’s, Berger’s and Borring’s review and approval of Castings shop drawings have any effect on this issue? If so, what is the effect?  (5 Points)
   3. Is MCM and Castings exonerated by the reviews and approvals of the design documents and shop drawings. Please explain.  (5 Points)
   4. If MCM provided an “early notice of concern” regarding the use of the University’s never tried, innovative design/construction techniques, is MCM exonerated from liability? Why or why not?  (5 Points)

EXTRA CREDIT (10 Points Total)

5. If FIGG ultimately determines that the concrete strength and cracking issues are of no concern, and convinces the University to allow construction to proceed, does FIGG’s determination strengthen MCM’s delay claim? Why or why not?  (5 Points)
6. If construction is allowed to proceed in the face of the known concrete and cracking deficiencies, has the Owner modified MCM’s contract obligations and specifications by its action? (5 Points)

Look at the constitution of 1974 from East Germany and then compare the main provisions of this constitution with the provisions of the following constitution: Cuba

What are the central features of a socialist legal order written out in law—- and what are the similar paragraphs or phrases used in each of the constitutions?

Use the attached.

Assessment Information

This assignment is designed to assess learning outcomes:

1. Demonstrate an understanding of the legal environment of international business.
2. Understand the various ways in which international business transactions {export, licensing, FDI etc} are conducted and the legal issues involved in each.
3. Evaluate the social, political and legal risks of conducting business transactions beyond national borders.
4. Identify the relevant international treaties and national laws which affect international business transactions.
5. Understand how international business disputes are resolved with particular appreciation of the problems of jurisdiction and enforcement of judgments.

 

This assignment is an individual assignment.

Assignment question

This assignment requires you to write an essay on the following question:

• Globalization and neoliberal ideologies are driving an increasing internationalization and liberalization of trade and markets. Local barriers, such as tariffs, however, constrain international trade, while regional arrangements, such as preferential trade agreements, are criticized as a threat to the future stability of a multilateral trade system. The GATT/WTO system tries to resolve some of these issues and promote free international trade. Critically discuss the GATT/WTO system and its relationships with preferential trade agreement and critically assess its effectiveness in the context of globalization and local resistances, also providing perspectives and recommendations for improvement.

All essays must rely on a solid knowledge of the relevant law and on appropriate academic theories, evidence from case studies, official documents etc. Please do not cite lecture slides and unreliable online sources.

Criteria for Assessment

• Clearly written, coherently structured and well-referenced presentation;
• Evidence of individual research;
• Depth of analysis of the subject matter;
• An objective justification of points argued and personal views expressed. Students are reminded of the University’s strict policy on plagiarism.  Students must follow the Oxford University Standard for Citation of Legal Authorities (OSCOLA) and use it correctly) (details can be found in Plagiarism section).

 

Word Count

The word count is 4000.

There will be a penalty of a deduction of 10% of the mark (after internal moderation) for work exceeding the word limit by 10% or more.

The word limit excludes references.

How to submit your assessment

The assessment must be submitted by 18:00:59 on 6 April 2020. No paper copies are required. You can access the submission link through the module web.

• Your coursework will be given a zero mark if you do not submit a copy through Turnitin. Please take care to ensure that you have fully submitted your work.
• Please ensure that you have submitted your work using the correct file format, unreadable files will receive a mark of zero. The Faculty accepts Microsoft Office and PDF documents.
• All work submitted after the submission deadline without a valid and approved reason (see below) will be given a mark of zero.
• The University wants you to do your best. However we know that sometimes events happen which mean that you can’t submit your coursework by the deadline – these events should be beyond your control and not easy to predict.  If this happens, you can apply for an extension to your deadline for up to two weeks, or if you need longer, you can apply for a deferral, which takes you to the next assessment period (for example, to the resit period following the main Assessment Boards). You must apply before the deadline.

You will find information about the process and what is or is not considered to be an event beyond your control at https://share.coventry.ac.uk/students/Registry/Pages/Deferrals-and-Extension.aspx

• Students MUST keep a copy and/or an electronic file of their assignment.
• Checks will be made on your work using anti-plagiarism software and approved plagiarism checking websites.

GUIDELINES AND BACKGROUND TO THIS ASSIGNMENT

Plagiarism

As part of your study you will be involved in carrying out research and using this when writing up your coursework. It is important that you correctly acknowledge someone else’s writing, thoughts or ideas and that you do not attempt to pass this off as your own work.  Doing so is known as plagiarism.  It is not acceptable to copy from another source without acknowledging that it is someone else’s writing or thinking. This includes using paraphrasing as well as direct quotations. You are expected to correctly cite and reference the works of others. The Centre for Academic Writing provides documents to help you get this right. If you are unsure, please visit www.coventry.ac.uk/caw.  You can also check your understanding of academic conduct by completing the Good Academic Practice quiz available on Moodle.

Self-plagiarism or reuse of work previously submitted

You must not submit work for assessment that you have already submitted (partially or in full), either for your current course or for another qualification of this and any other university, unless this is specifically provided for in your assignment brief or specific course or module information. Where earlier work by you is citable, ie. it has already been published/submitted, you must reference it clearly. Identical pieces of work submitted concurrently will also be considered to be self-plagiarism. Self-plagiarism is unacceptable because you cannot gain credit for the same work twice.

 

Moodle includes a plagiarism detection system and assessors are experienced enough to recognise plagiarism when it occurs. Copying another student’s work, using previous work of your own or copying large sections from a book or the internet are examples of plagiarism and carry serious consequences. Please familiarise yourself with the Oxford University Standard for Citation of Legal Authorities (OSCOLA) and use it correctly to avoid a case of plagiarism or cheating being brought.  The OSCOLA quick reference guide can be found on your Moodle page and on the Courseweb. For the full guide, please visit https://www.law.ox.ac.uk/research-subject-groups/publications/oscola. Again, if you are unsure, please contact the Centre for Academic Writing, a member of the course team or refer to the OSCOLA LibGuide available on Locate.

Return of Marked Work

You can expect to have marked work returned to you in 15 working days for level 4 and 5, 10 working days for level 6 and 7 level. If for any reason there is a delay you will be kept informed. Marks and feedback will be provided online. As always, marks will have been internally moderated only, and will therefore be provisional; your mark will be formally agreed later in the year once the external examiner has completed his / her review.

Part 1: North Sea Questions
(3) What was the legal issue in the North Sea case and how do we know?
(3) There is a reservation clause in the Geneva Convention on the Continental Shelf that we looked at.
Why do you think— (what did the I.C.J. say concerning why) — there was a possibility for a nation to
reserve against articles 4 to 11 but not against 1 to 3?
(4) Find a paragraph in the North Sea judgment that deals with the requirement of all nations to both
sign and ratify treaties in order to become parties. What argument of Holland and Denmark did the
I.C.J. reject?
(5) In the North Sea Case, Holland and Demark raise the issue of subsequent crystallization of the
equidistance principle. What does subsequent crystallization mean? What paragraphs of the judgment
consider this issue? Why could the many examples of division of the North Sea continental shelf
according to the equidistant principle provided by Holland and Denmark not be counted as state
practice by the court?
Part 2: Texaco Questions
(4) In the Texaco case, what was the choice of law? Compare this to the choice of forum clause in the
Bremen case. To what extent might the choice of forum in Bremen really be related to choice of law?
(5) In the Texaco case the arbitrator considers UN resolutions. Which resolution does he believe to be
evidence of custom? Why does he find that the other two UN resolutions are not evidence of custom?
Do we get a general rule from him concerning when we can use UN Resolutions as evidence of either
opinion juris or state practice?
(3) What was Libya’s argument in this case? Why did it believe it had the right under international law to
seize its resources back?
Part 3: The Relationship between municipal and international law.
(3) In the Mortensen case – what is the argument of the defendant? Why should the ship not be subject
to British law?
OR
In Mortensen there is the use of the word, ultra vires, in the judgment. In what
context does this come up?
(5) What was the customary rule of international law enunciated in the Paquette Habana case? What
was the proof (pick 3 pieces or examples) for the existence of this custom? What will the owners of the
ships receive from the court?
(5) How did Cook win before the Supreme Court? After all, the ship was seized within 12 miles
according to the provisions of the Tariff Act of 1922. The ship had liquor on board that was not listed
properly in the manifest.
Part 4: General Questions
(3) What is the difference between a sanction and a reprisal? Provide an example of each from the
textbook or newspapers.
(4) Provide two or three examples of why a scholar might label international law to be a “primitive”
legal system? What are its gaps or weaknesses?