“For a professor of Building Law, a university of technology is the place to be.”
On 25 October, Monika Chao-Duives gives her farewell speech as Professor of Building Law. Within ‘The case of the melting dinosaur’, she will focus on the emergence of integrated types of contracts. But she will start by looking back at fifteen years as professor, making a final plea for basic knowledge of law to be made compulsory for every professional practitioner in the field of architecture and the built environment.
In a nutshell, what does the chair in Building Law actually involve?
“In order to ensure that what is designed can be built, managed and ultimately demolished, the underlying processes, such as project tendering, need to be properly organised. For example, agreements need to be made on relationships between the parties and the nature of the collaboration. These are subject to building law. With no legal framework, it becomes chaos or the law of the strongest prevails.”
“The TU Delft chair in Building Law aims to acquaint future designers and other professionals in architecture and the built environment with the legal instruments that relate to design and construction practice and to analyse how public and private law is applied in practice. My colleagues Fred Hobma and Pieter Jong take care of the public law aspect of things, such as the awarding of planning permission for activities and planning in general. My focus has been on the private law aspects of such issues as risk management and contracting.”
Those are all things that are continually developing...
“Absolutely, building lawyers certainly have their hands full. Here’s an example. There is now much more focus than there used to be on guaranteeing safety on and around construction sites. But how do you determine the preconditions for this and how do you pin them down? How do you ensure that they’re also taken into account in the design phase as well? Here’s another example. There’s been huge increase in the use of Building Information Modelling, BIM. How do you ensure you have effective agreements concerning input and output, for example by means of copyright? A third example involves the transition to circular construction. In the past, the process stopped after the demolition of a building. This is set to change – how will we organise that?”
“Another development relates to the fact that integrated contracts have become almost ubiquitous. Traditionally, a commissioning authority looks for an architect for a design and a contractor to do the construction work. It then agrees two separate contracts. With an integrated contract, the contract for the design and construction process, and sometimes also the management and maintenance of the building and its funding, is awarded to a single contractor at the same time. If that’s a builder, it will often then go in search of an architect and other subcontractors with which to enter into contracts itself. The roles of the commissioning authority and the contractor are different than in traditional types of contracts. The latter actually takes all the responsibility while the former is slightly distanced from the project. The question is this: does an integrated contract like this really work as it’s intended?
That’s the question you will also be raising in your valedictory address?
“Yes, the development and application of integrated contracts more or less coincided with my time at TU Delft. Around twenty years ago, I myself was involved in drawing up the Uniform Administrative Conditions for Integrated Contracts (UAV-GC 2000, for those in the know). Slowly but surely, it has turned out that this form of collaboration did not satisfy everyone as much as was first thought. Very recently, in May 2019, Rijkswaterstaat announced a rethink: an historic move. This therefore serves as an excellent theme around which to focus my review of my work and the research conducted by many students.”
Let’s keep the content of the speech under our hats for the moment. Do you have any message for colleagues in the faculty?
“I’d like to stress how amazingly important it is for professional practitioners involved in both commissioning and contracting to have experience of building law in order to ensure that they have a thorough understanding of their own role and that of the other party, what rights they have and how they can work together. I’ve seen countless problems and disputes that could have been prevented with just a little knowledge. If an architect understands the general terms and conditions in a contract and their consequences, he or she can engage with the commissioning authority in time and does not have to take recourse to the law.”
“Traditionally, the subject of law was firmly embedded in the curricula in the faculties of Civil Engineering, TPM and Architecture and the Built Environment. Things are different now. There is now only one lawyer left at TPM and none at all at CEG. In 2004, when I started here, the chair had been reinstated, following a gap of some time. In view of the circumstances, I’m glad to say that the appointment to this chair when I leave it is being extended from a day and a half to two days per week.”
Do you have a final footnote to your professorship?
“I’ve gained a lot of respect for the mentality that students develop here: how can you design, build and organise a solution? As a lawyer, I was always taught how you should uphold your rights. At Delft, I’ve learned to think in terms of searching for solutions. For a professor of Building Law, a university of technology is the place to be.”
Monika Chao-Duivis is also Director of the Dutch Institute of Building Law in The Hague.
Farewell speech Monika Chao-Duivis
25 October 2019, 15:00, Aula TU Delft