Leendert van den Berg has over 20 years of experience as a construction and real estate lawyer. He is partner in Severijn Hulshof, a boutique law firm entirely dedicated to construction/public procurement law. As a board member of the Dutch Association for Construction Law, and member of the International Construction Projects Committee and the Chartered Institute of Arbitrators, he is well acquainted with both Dutch and international construction law. Among his clients are large domestic and international contractors, advisers and employers. Leendert is involved in many major construction projects as lawyer and adviser.
What attracted you to a career in construction law?
It is fabulous and fascinating to see what architects and engineers can come up with and what contractors can build. Being part of that from a legal perspective is a joy, as it involves very real issues that require very real and practicable solutions. The interaction of technical and legal disciplines remains ever so interesting.
What are the benefits, and difficulties, of practising in a boutique construction firm?
There is only one business, and that is the core business of construction law – this allows for a high level of specialisation and few conflicts of interest. Construction law cases are commonly very factual and technical. In our boutique construction firm, all our lawyers are familiar with the various roles of the parties involved in construction projects, and are equally capable of understanding complex technical issues. Being able to reduce such issues to their bare essence is an essential capacity in construction law. The difficulty obviously lies in the limitation of specialisation and the impossibility to do (and know) it all.
You often represent architects. What do you most enjoy about acting for them?
Architects are visionaries. They conceive things that will only be built in the future, but are able to present them as if they did already exist. Translating their vision into concrete projects can – from a legal perspective – be challenging, but in a good way. Working with architects can really broaden one’s horizon.
What challenges do you encounter in the infrastructure sector, particularly in your transport and waste-management work?
Projects are getting larger and larger, as are the risks involved in executing them. Infrastructural works are mostly assigned through public procurement procedures that leave little room for negotiation. At the same time, infrastructure contractors are highly dependent on such contracts. A more balanced allocation of risks is dearly needed. For both infrastructure and waste-management, stable and predictable behaviour among contracting authorities is essential.
Why is arbitration so appealing for disputing parties in the construction sphere?
Because arbitrators know the tricks of the trade. Ruling in highly technical matters is difficult without a more than basic understanding of who does what in the construction domain. If the starting point of a case is to explain the function of a structural engineer as opposed to an architect of a contractor, the outcome is hard to predict. That is exactly what happens in the ordinary courts though.
What challenges does the ongoing anglicisation of contracts pose for construction law in the Netherlands?
Although the Dutch have a good proficiency in English, not even the native speakers from around the world agree on all accounts on the meaning of certain terminology. Legal terminology cannot easily be separated from the underlying legal system that it is coming from. Given the common law/civil law divide, a civil lawyer may come to an entirely different interpretation of English terminology than originally intended by the author of a document. Furthermore, contracts tend to become larger and larger, arranging for issues that are already covered by underlying legislation.
Looking to the future, what obstacles will the construction industry face in the coming years?
The GCC slowed down the Dutch construction market enormously. Even if construction is now high in demand, major contractors are still struggling with contracts from the past and price levels that do not properly cover the expanded costs. Even though the quality of construction has improved, the costs of failure are still (too) high. Reducing such costs should be high on the agenda of all parties concerned. At the same time, maintaining a high level of quality and safety are just as important.
What advice would you give to a younger lawyer looking to specialise in construction law?
Love it or leave it. You have to have an interest in how things are built and you need to want to understand how that works. Be inquisitive and have an open mind to new developments!