Even in the case of a small construction project, some work is allocated. In the case of complex construction projects, the possibilities are numerous: contractual agreements are complex, contractual chains are long and extensive, and it is very common for subcontracting and supply contracts to be brought back with the main provisions of the treaty. In other words, the obligations of the principal contractor arising from the main contract are imitated, in whole or in part, in the sub-contract; All or part of it, the subcontracting commitments are reissued in the subcontract, etc. The objective of this approach may be to avoid gaps in commitments and commitments between the various project participants and is clearly the most beneficial for a senior contractor who may have a single responsibility for points on all aspects of the project between him and the employer. This is a good example of the risks associated with a more “general” approach to setting up provisions from one contract to another. However, the development of an autonomous treaty is not an easy task. In addition to the dispute resolution provisions, there are a number of important provisions that need to be specifically addressed in the sub-treaty and not simply replicated. In this case, the parties chose the “by reference” approach, although the insurance, compensation and jurisdictional obligations were dealt with in separate provisions. This allowed the applicant to argue that the extent to which the obligations of the main contract were included in the sub-contract depended on their classification as primary obligations (related to the work to be performed and its implementation) and secondary obligations (insurance and compensation obligations). The adjudication provisions were secondary (or even tertiary) obligations because they regulated how disputes over material rights and obligations were to be resolved and, as such, were not included in the sub-contract. The court agreed. This issue was addressed in the last case Imtech Inviron Ltd/Loppingdale Plant Ltd, in which the Tribunal found that the provisions of the main decision had not been included in the sub-contract.
One of the topics discussed several times during my delegation was the “back-to-back” principle in the development of sub-contracts. This type of thorough and systematic process should be accepted as an integral part of negotiating a return contract, regardless of the approach. There is no quick and hard rule on how to proceed with the development of back-to-back sub-contracts. The main lesson is to escape the temptation to choose a seemingly simple option: a general formulation to include “all relevant commitments for subcontracting work on a back-to-back basis” will rarely achieve its objective. I think the parties should do this: while the “back-to-back” principle is in itself relatively direct and undisputed, in practice the problems often arise from the way in which the various treaties are documented.