This Master thesis takes ABT 93 as the starting point and investigates how the Danish public employer can handle subsequent circumstances in lengthy and complex construction contracts in order to allocate risk efficiently and utilize gains. The thesis sets of by analyzing the coming Danish procurement law since this overarching framework constitute the contractual barriers for the public employer. The law holds considerable flexibility to handle subsequent circumstances. Next, the thesis finds that the Danish background rules of law are not suitable to allocate risk efficiently and utilize gains. The next step was to develop an economic basis. Prospect Theory and subsequent research was adapted to construction settings to qualify the behavior of the parties. On this economic basis, the thesis mounts recommendations to the public employer to allocate risk efficiently and utilize gains. On the risk side, it is recommended to handle subsequent circumstances of an unpredictable nature by a hardship clause to allocate risk when it materializes. The clause suggests a radical new way to use a mediator in case of hardship and is adapted to fit within the coming Danish procurement law. When it comes to utilizing gains ABT 93 and Danish contracting practice show an evident lack in such clauses. It is recommended to employ Value Engineering Change Proposals (VECP) to create incentives for the contractor to propose project changes that will increase the value of the project. Furthermore, it is recommended to use a clause that implements an incentive/disincentive (I/D) structure in relation to the time of completion. Such a clause can incorporate the i) relational concepts revealed from the contract psychology, ii) protects the agreement from intervention by the courts, iii) create an incentive to overcome subsequent circumstances and iv) tap into e.g. externalities. Both recommendations are evaluated within the legal framework. Finally, the thesis evaluate the interplay between the hardship clause, the I/D clause and VECP. The three initiatives cannot necessarily be employed simultaneously. The contract design must be adapted to the specific settings and it is evaluated which variables that must be considered in this regard.
|Educations||MSc in Commercial Law, (Graduate Programme) Final Thesis|
|Number of pages||135|