Construction teams a solution?

Interview with Madelaine Aanstoot and Bram Reinke, both attorneys-at-law of HBN Law, Cees den Heijer of Architect DenHeijer and Maurick Wolf of Wolf Bouwmanagement

During a nice conversation at the porch of one of the most beautiful houses on Curacao at the Spanish Water, designed by Cees den Heijer, along with a good glass of wine and some Old Dutch cheese cubes, one realises once more life isn’t bad at all. Unfortunately “the outside world” isn’t always that colourful and is also home to troubles, disputes and discontent. It is a vehicle of opportunities but also of risks.

Cees de Heijer is an architect for many years now and started with developing buildings (and more) on Curacao a long time ago. The Mongui Maduro Bibliotheek at Curacao is one of his designs. As an architect Cees not only designs buildings, he also advises his clients on the design process, process management and how to design in a sustainable manner. Mostly people confuse “in a sustainable manner” with only “environmentally friendly” constructions. According to Cees that is a wrong perspective. To design sustainable and therefore environmentally-friendly you do have to create a building that is not only for example energy efficient, but which has a body to be profitable for not only one company yet can be serviceable for more purposes. We don’t design and construct environment-friendly if we turn down a building after 10 years because it has no purpose any longer for others than the company that left the building. In that case the owner has also not constructed a viable building. Cees: “An architect is not only a designer and a draftsman. To complete your design and to fulfil the owner’s wishes and the wishes of the environment you have to establish constructive management, consultation, a feasible budget, a sustainable building and something that will be accepted by the environment.

That’s where Maurick Wolf also plays an interesting role as a construction manager. Maurick is living and working on Curacao for quite a long time. He started his business on Curacao in 1993, then went to The Netherlands for a couple of years working for one of the biggest project developers and is since 2006 again a resident of Curacao. As the owner of Wolf Bouwmanagement he participated in big and smaller building projects on Curacao. He is currently renovating some old historic buildings at Pietermaai Curacao. According to Maurick the construction manager acts on behalf of an owner, contractor or designer at every step in a construction project. As a construction manager he plans, coordinates, and has the control of a project from inception to completion aimed at meeting a client’s and environments’ requirements in order to produce a functional and financially viable project. To overview a project, which involves a lot of different parties with a lot of expertise, high investments, and to construct as planned and according to the budget a good manager is essential. Cees agrees.

Conclusion by Cees and Maurick, “you have to create a triangle which contains of the following keywords: respect for environment - and social aspects – and create economically viable”.

So far so good it seems, but were does the trouble starts?
“The first time I needed a lawyer was only a couple of years ago”, Cees said. It was about different interpretations of the construction contract. As a straightforward lawyer Madelaine pulled me through it. Stick to the agreements as enshrined in the construction contract. Since that day I mostly consult my lawyer before I start on a project instead of only at the moment when the troubles start. It prevents a lot of uncertainty and lost energy. At the end it will cost you more time and money to solve problems then to prevent problems.

Madelaine Aanstoot is an attorney-at-law and employed with HBN Law at Curacao. She has gained experience in 20 years of litigation and advisory in several fields of law. The last couple of years she has specialized herself also in real estate & construction law and her practice is now more focused on construction procedures. Along with her colleague, Bram Reinke, who has recently joined HBN Law on Curacao and who is also specialized in construction law, they have a varying and interesting practice.

Madelaine: “As a lawyer you evaluate the agreements, the law and the circumstances of the case”. Combined it will form the basis of the advise to your client.  It is very important before you start a construction project to detail wishes, budget, risks and responsibilities of each party - within the frame work of legal rules of course - to ensure quality and clarity. A contract supported by a requirements program (programma van eisen: "PVE") and terms and conditions – in which you can integrate for example ARNA provisions (provisions for architects & engineering consultants Netherlands Antilles) and UAV provisions (Uniform Administrative Requirements for the effectuation of works) should be known and clear for all parties involved and should be waterproof”. Please note that not all the provisions of the UAV can be copied, because these provisions are set up according to the legal system of The Netherlands and in the Dutch Caribbean not every Dutch rule is suitable For example, you can better change the chosen Dutch arbitration rules to local arbitration.
However, a good and solid contract is a good start, but not everything can be solved in advance. The problem in the construction process is mostly that agreements beside the originally contract are made in “the workplace”. “You construct so you have to decide quickly sometimes”, says Maurick.

Let’s ask the lawyers. A simple example, if a window in de drawing of the architect is set at a certain size and place but because of changed circumstances does not fit the building anymore however has to be placed immediately somewhere else otherwise. Owner and contractor agree to the changes. The architect doesn’t. Madelaine: “the applicable copyright rules for the Dutch Caribbean say that a drawing is protected, but a building itself is not. Other than in the Netherlands”.
As a young lawyer and fresh from College, Bram memorized and still knows a lot of judgements. He immediately tells us that the moral rights (part of the copyright) of the architect just go very far. An architect in Tietjerkstradeel (a town in The Netherlands) designed a town hall with a lot of glass in it. During summertime it became too hot in the building. The congregation thought of shading as a solution to this problem, but to the architect that solution was a deformity / disfigurement of his work. The President of the Court considered that functionality was an important factor, but decided that the right of the architect to protect his work against deformity should prevail (Pres. Rb Leeuwarden, 12 juli 1988, BR 1988/867). The congregation ultimately spent a lot of money on installing air conditioners. Obviously, this phenomenon is limited by article 3:13 BW. When the importance of an architect is evident disproportionate compared to the interest of the buyer, the invocation of the copyright will entail abuse of powers. However, the copyright of an architect is still a very strong right. This is different for demolition of a building. Copyright does not oppose to take down a building. This is defined in the so-called Wavin-judgment (HR 6 februari 2004, RvdW 2004, 31, LJN AN7830).

The question in case of a dispute often is: why did you not consult a lawyer earlier? “Lawyers are expensive, but that is not always the hurdle to not consult a lawyer”, say Cees and Maurick. Mostly you don’t want to confront your co-parties at the start of a project with a lawyer. It confronts people and it gives people the feeling you don’t trust them.
Why not hire one lawyer for all? In the USA and in Europe it is quite normal to form a team before starting the project, the so-called construction team. The construction team mostly consists of the following parties: the initiator (owner/investor), an architect and other contractors, sub-contractors and advisors. The construction manager can replace the initiator and represent the initiator and acts on its behalf. Also because the legal system in the USA is different from the one in The Netherlands and the former Dutch Caribbean (they don't know notaries for example) a lawyer is always involved from the beginning to the end. Rather than each participant focusing exclusively on their part of construction without considering the implications on the whole process, you combine knowledge, focus and responsibility in one team. This approach allows informed decision-making early in the project where the most value can be created. If you work on the basis of trust and openness with each other, you will not only have huge savings on lawyers and time, but also allow data sharing directly between the design and construction team which eliminates a large barrier to increased productivity in construction.

Maurick and Cees are both supporters of the construction team. “Together you look for practical solutions and by sorting out in advance the so-called “tail costs” and risks, it is easier to build according to plan and budget”.
By hiring one lawyer who represents all parties and closes all construction contracts of the team members, individually and jointly, the plans, ideas, wishes and more will be determined by all and the lawyer. The lawyers, Madelaine and Bram, also see the benefits of a construction team and think it is interesting to elaborate this for the countries of the former Dutch Caribbean.

Typically the construction industry includes al lot of individual parties: an owner, specific advisors, a designer (architect or engineer), sometimes a construction manager, suppliers and of course the builder (contractor) and sometimes sub-contractors. They all have their own contracts. Traditionally, there are two main contracts between these parties as they work together to plan, design, and construct the project. The first contract is the owner-designer contract which involves planning, design, and construction administration. The second contract is the owner-general contractor contract, which involves the construction. An indirect, third party relationship exists between the designer and the general contractor due to these two contracts. An alternate contract or business model can replace the two traditional contracts with small individual contracts which describe individual appointments and remuneration, and one construction (team) contract for all the parties which clearly describes planning, budget, responsibilities and cooperation agreements including the role of each construction team member in the design and construction phases.

The role of the lawyer has to be specified too. In a recent judgment of the High Court of the European (HvJ EU 29/04/2010, zaaknr. C-550/07 P, Akzo) is concluded that the right to remain silent does not apply to opinions and other internal correspondence between the in-house lawyer and a company in case of competition procedures with the European Commission. However this judgement only applies to European matters and not to Curacao cases. But according to Bram: “There is always the possibility that here on Curacao the same rules will be acknowledged in line with the European Court opinion in case a lawyer in a construction team will be identified with "salary lawyer”. The right to remain silent is an automatically right of the attorney-at-law. A lawyer does not necessarily have the same right to remain silent. This means that you can be called as a witness in a proceeding and you cannot make use of your privilege. When you refuse to answer, you can be sentenced to a fine or even taken hostage! And that is only a personal inconvenience. For the company or owner in question the risk exists that sensitive information will be “out there” through a judicial process. However, this risk can be excluded by the hiring an attorney-at-law on a contract basis instead of hiring a lawyer on a salary basis.

As said earlier: the world is a vehicle of opportunities but also of risks. Together we can combine sources, knowledge and legal advice to clearly identify wishes, legal regulations and therefore to build as planned and to prevent as much as possible troubles, disputes and discontent.

For more information please contact the interviewees:
Madelaine Aanstoot t: +(599-9) 434 3300 e: This email address is being protected from spambots. You need JavaScript enabled to view it.
Bram Reinke t: +(599-9) 434 3300 e: This email address is being protected from spambots. You need JavaScript enabled to view it.
Cees den Heijer t: +(599 9) 528 8848 e: This email address is being protected from spambots. You need JavaScript enabled to view it.
Maurick Wolf t: +(599 9) 512 5162 e: This email address is being protected from spambots. You need JavaScript enabled to view it.

   

 

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