"exploring Exclusions And Limitations In Australian Travel Insurance"

 "exploring Exclusions And Limitations In Australian Travel Insurance" - There are many ways to resolve a construction dispute when it arises - but what are the best methods to mitigate the risks, avoid or resolve such disputes for projects based in Australia, India, Indonesia, Malaysia, the Philippines, Singapore and Vietnam?

The construction sector in Asia Pacific is poised for significant growth, although it comes with challenges. In any large-scale construction project, there are myriad risks to cause disruptions and delays, but there are best practices for mitigating these risks and resolving disputes.

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The international construction industry, while sensitive to global economic cycles, has proven remarkably resilient in the face of the pandemic. In much of the developing world, including countries in the Asia-Pacific region, it also holds the key to economic recovery because of its potential for job creation. Along with the drive towards sustainability and digital transformation, the sector is poised for significant growth over the next few years. Some market observers suggest that the construction industry in Asia Pacific could reach USD 312.67 billion by 2024.

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Governments across the Asia-Pacific are looking to infrastructure to help stimulate growth as the region begins to return to some form of normalcy after COVID-19. Encouraged by this government focus, investors are turning to seeing the Asia-Pacific as a land of opportunity. But with rapid growth comes challenges. Construction projects around the world rely heavily on long supply chains: equipment, material and labor. Disruption of any link in that chain can result in delays and increased costs, and the way parties approach risk allocation and mitigation can have significant financial implications.

As construction projects around the world have been halted or suspended amid the pandemic, project owners, developers and contractors have begun to take a closer look at their contractual terms. Force majeure is not the only option for obtaining relief, there are often other - and more appropriate - avenues that deserve to be explored at an early stage. Market participants will proceed with extreme caution and take steps to reduce risk, avoid disputes and ensure the best possible outcome through settlement or arbitration should disputes arise.

Australia is a very advanced mixed economy, but investors - often attracted by the country's economic stability and resilience - should be aware of certain clauses that typically appear in construction contracts.

In recent years, the construction industry in India has emerged as an attractive destination for foreign investment. To support this growing interest, the government of India has enacted an attractive foreign direct investment policy.

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Indonesia's construction industry has long been considered a pillar of the country's economic and social development, and regulations are constantly changing to ease complexity and speed up processes for businesses and foreign investors.

With its strategic location and significant natural resources, Malaysia is an internationally recognized investment jurisdiction with a significant construction industry. Malaysian law offers procedural safeguards and dispute resolution mechanisms to facilitate, for example, regular and timely payment under construction contracts.

The construction industry in the Philippines is expected to grow with the introduction of the "Build, Build, Build" initiative and the amendment of a number of laws that would loosen restrictions on foreign investment.

With a significant and coherent body of construction dispute case law, Singapore is a hub for the resolution of many construction disputes across the Asia-Pacific region.

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Any company in which an individual who is not ordinarily resident in Australia has at least a 20% interest is included in the broad definition of 'foreign person'

The construction industry is a key driving force in Australia's recovery from the COVID-19 pandemic, with a variety of major projects underway or nearing completion across Australia. Australia is a common law jurisdiction, which finds its roots in English law. Australia is also a federation of six states and two large territories, overseen by a federal government. Both common law and legislation at the federal and state level will be relevant to investors in the construction space.

Australia's current foreign investment review framework came into force on 1 January 2021. This framework is set out by the Foreign Acquisitions and Takeovers Act 1975 (Cth) and the Levy of Charges on Foreign Acquisitions Act 2015 (Cth) and the regulations associated with those pieces of legislation.

Under this foreign investment review framework, a "foreign person" planning to invest in Australia that meets certain criteria must notify the Australian Treasurer. The treasurer can then grant or deny approval for the investment. In deciding whether to approve a proposed investment, the Treasurer receives advice from the Foreign Investment Review Board (FIRB). The FIRB and the Treasurer make these decisions on a case-by-case basis.

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It also includes any company in which an individual who is not ordinarily resident in Australia has at least a 20 per cent interest, or a company in which two foreign persons have an aggregate interest of at least 40 per cent.

Depending on the nature of the proposed investment, a lower interest percentage threshold may apply. Some relevant examples are:

Where Australia has a bilateral investment treaty or free trade agreement with another country, foreign investors from that country may benefit from certain substantive investment protections.

Australian law follows the classic English law test of contract formation (offer/acceptance, consideration, etc.). All contracts, including construction contracts, must meet these requirements to be enforceable.

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Standard form contracts are often, though not always, used for construction projects in Australia. Standards Australia is the primary non-governmental standards development body in Australia. Its forms are the most common type of standard form used, although other forms such as FIDIC and GC21 are also used, especially for large projects.

A key principle of Australian contract law is freedom of contract, whereby parties can reach any deal they choose. However, common law and statute provide for certain limitations on freedom of contract. Rules on penalties or liquidated damages clauses, as well as limitations and exclusions of liability clauses, may be particularly relevant to construction contracts:

Construction contracts often include liquidated damages clauses. These clauses define the damages that the contractor must pay to the principal if he does not complete the works within the time specified in the contract. Liquidated damages clauses are often included in construction contracts because they provide certainty to both parties.

If not, the court may interpret the liquidated damages as a penalty, which will not be enforceable.

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When construing a liquidated damages clause, a court will consider the substance of the clause over its form: Even if the contract expressly states that the amount in the clause is not a penalty, the court may still identify it as a penalty.

Construction contracts also commonly include exclusion or limitation of liability clauses. These clauses reduce (partially or fully) the legal liability of the parties for certain breaches of their contract. For example, parties often exclude consequential losses.

In general, freedom of contract allows the parties to limit their obligations as they see fit. Australian courts will generally enforce exclusion or limitation of liability clauses using a strict interpretation of the relevant clause.

However, there are certain limitations on the contracting parties' ability to limit their liability. At common law, the parties are not permitted to agree to a complete exclusion of liability for any breach of the parties' obligations.

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In addition, the parties cannot limit or exclude their liability for breach of certain provisions of the Australian Consumer Law. For any transaction that is "in trade or commerce" (which includes construction contracts), these provisions will include, as a minimum: misleading or deceptive conduct; unfair practices; and reckless conduct.

Payment terms (also known as "pay when paid" clauses) are generally not enforceable in Australia. Each state and territory has enacted security of payment legislation that overrides conditional payment clauses.

Each Australian state and territory has enacted a statutory regime (known as security of payment regimes) governing the submission and payment of regular progress claims for construction projects. The modes are largely similar, but there are differences.

Payment security regimes establish the right of contractors to progress payments and to order adjudication processes where these progress payments are disputed. Security of payment regimes also provide contractors with the right to stop work when a progress payment is due but not paid, or where security for payment is not provided.

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Most construction contracts include termination clauses, allowing a party to terminate the contract in certain situations. These situations may involve a breach of certain obligations.

Termination for breach may also be possible even where the contract does not expressly include a right of termination.

For example, one party can terminate the contract when the other party refuses to perform its obligations. This is known as rejection. Cancellation may occur when a party is unable or unwilling to fulfill its obligations. Sometimes a party explicitly waives its obligations, but the party's conduct alone can constitute a waiver.

The parties may agree to a contractual mechanism to deal with unforeseen circumstances affecting the performance of their obligations. In some circumstances, common law will also allow parties to modify or avoid performance of their obligations, even where the contract does not expressly permit them to do so.

Managing Construction Risks In Asia Pacific: Indonesia

Force majeure clauses, for example, may release a party from liability arising from its inability to fulfill its contractual obligation in certain circumstances beyond its control. Australian courts will construe these clauses narrowly by reference to the express words

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