Professor Doug Jones AO illuminates past, present and future of contract penalties doctrine
On 13 July 2016, Professorial Fellow Doug Jones AO provided detailed insights into a key issue within contracting in construction projects and beyond: the penalties doctrine.
Drawing upon his extensive international experience advising on construction projects and acting as an arbitrator in the resolution of disputes, Professor Jones gave context to the highly-anticipated pending judgment of the High Court of Australia in Paciocco v Australia and New Zealand Banking Group. He outlined the history of the penalties doctrine from medieval times through to the 2015 UK Supreme Court decision of Cavendish Square Holding BV v Talal El Makdessi, encompassing civil as well as common law systems.
Discussing the existing and evolving law, Professor Jones challenged the construction law community to participate in the ongoing debate over the proper role of the penalties doctrine so that it remains relevant to the transnational nature of commercial contracting. He noted that, 'in an industry where uncertainty is rife, it is important for courts to champion flexibility in their analysis of the bargains of commercial parties.'
Following the lecture, Professorial Fellow John Sharkey AM and Senior Fellow Kara Vague reflected upon the themes of Professor Jones’s lecture, and several insightful questions were offered by members of the large audience. We were delighted that, despite the chilly Melbourne night, more than 100 people attended the lecture at Melbourne Law School; in addition, many people watched a live feed of the lecture.