ABSTRACT

Construction and engineering contracts fulfil at least two broad and overlapping purposes. The first is to provide a framework for the supply of goods and services by one party to another, and for payment to be made for that supply. The second purpose is to provide a statement of the parties' respective legal rights and obligations, so that if there is disagreement between them as to their rights and obligations they may refer to the contract as a record of what was agreed, and who took responsibility for what. What is permissible, though, is for the party who pursues the claim to take it to court for resolution, rather than be caught without an avenue for redress due to the breakdown of the agreed dispute resolution procedure. Agreements to deprive persons of access to the courts for pronouncement on their rights and obligations were treated with diffidence by the common law.