[Not always] keeping the [good] faith

11th September 2019


With an increasing number of standard form construction contracts adopting the language of ‘good faith’ whilst seeking to promote ‘collaborative working’ against a backdrop of increasingly complex projects and party interfaces that are, generally, still being procured through a traditional risk transfer matrix, what is the meaning of those terms in an English law context where the courts have been sceptical or scathing of the concept of Good Faith?

Does a good faith obligation facilitate collaborative working?

In an international context, whilst there is no obligation of good faith in the FIDIC forms, such an obligation is implied by most civil codes. NEC3 clause 10.1 includes an obligation to act in a spirit of mutual trust and cooperation, is that akin to good faith?

With increasing express reference to good faith, implied obligations arising from EU regulation and civil law application, this note looks at the implications of those requirements and whether they assist in facilitating collaborative contracting.

Download Derek Nelson’s White Paper where he discusses the impact of good faith obligations on collaborative working in English Law.

This publication presents the views, thoughts or opinions of the author and not necessarily those of HKA. Whilst we take every care to ensure the accuracy of this information at the time of publication, the content is not intended to deal with all aspects of the subject referred to, should not be relied upon and does not constitute advice of any kind. This publication is protected by copyright © 2019 HKA Global Ltd.

An obligation of good faith, by itself, does not greatly assist the parties to work together collaboratively.
Mere expression of collaborative intent is no guarantee of collaborative behaviour: it requires knowledge, structure and commitment.”
Derek Nelson, Partner, HKA

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