국제건설계약과 해외 투자개발사업과 관련한 연구의 회고와 전망

Abstract

This article describes the past, present and future of the legal researches regarding international construction contract and overseas investment development projects, all of which are the most complex deals among various types of international business transactions. For the purpose of this article, it first gives an overview and history of international construction projects conducted by Korean construction companies as main contractor. The article further briefly deals with major issues in international construction contract, including but not limited to: (i) the mechanism of delay and extension of time, contractor’s duties and limitation of liabilities, changed circumstances and force majeure, variations, contractor’s defect liability, joint venture or consortium, subcontract relation, and independent bank guarantees. Other important issues include claims by employer or contractor, engineer’s dual roles as the employer’s agent and the adjudicator of claims raised, and resolution of construction dispute. This articles suggests that further legal researches necessary in international construction contract should include construction related laws and regulations in middle east Asian countries, researches to be conducted from employer’s perspective as well as contractor’s perspective, and new construction contract scheme under renewable energy sector, particularly marine wind power project, which is going to be a hot issue in near future. On the other hand, overseas investment development projects can be divided into four different areas as follow: (i) pubic-private parnership projects to be implemented under PPP related law or policy of the hosting country; (ii) independent power producer projects to generate necessary amount of power; (iii) exploration and development of natural resources such as coal, oil, natural gas, iron ore, etc.; and (iv) other type of investment development projects except the above three different categories. The common feature of these four different categories is that all of those projects should be definetely implemented through project finance to raise necessary amount of loans although they have some different features. This article deals with the history and overview of Korean companies’ overseas investment development, trials and errors occurred therefrom, and primary contractual and legal issues of such projects.