Rodrigo, Thanuja K (2012) Mitigating the risk of unfair demands under on-demand guarantees in the export and construction industries in Sri Lanka: A proposal for legal and structural reform. PhD thesis, Griffith University, Sri Lanka.
Abstract
The research question addressed in this thesis is: Would an expansion of judicial intervention (that recognises unconscionability as a separate and independent ground from that of fraud) in the enforcement of on-demand guarantees in Sri Lanka, be useful in mitigating the risk of unfair and opportunistic advantage taking on the part of the beneficiaires calling under on-demand guarantees in Sri Lanka? The problem of beneficiaries' fraudulent or opportunistic, unfair advantage taking conduct in calling under on-demand guarantees – identified as unfair demands under on-demand guarantees – arises due to the nature of such guarantees which gives the beneficiaries the right to demand payment without having to prove the applicants' default under the underlying contract. This inherent characteristic of on-demand guarantees gives the beneficiaries a strong position in relation to payment under such guarantees and the potential for misuse and unfair advantage taking in the guarantee market. Whilst the Sri Lankan courts have recognised the need for intervention in the enforcement of on-demand guarantees in circumstances where the beneficiaries' demands are fraudulent, they have not yet recognised a mechanism to mitigate beneficiaries' opportunistic and unfair advantage taking which is a form of unconscionable conduct in seeking the enforcement of these guarantees. This thesis examines this legal position in Sri Lanka which recognises limited scope for judicial intervention in the enforcement of on-demand guarantees, and which has led to a protection gap for the applicants of on-demand guarantees.
| Item Type: | Thesis (Doctoral) |
|---|---|
| Thesis advisor: | Wilson, Therese and Touchie, John |
| Uncontrolled Keywords: | judicial intervention; Sri Lanka; export industry; construction industry; on-demand guarantees |
| Index terms: | guarantee, default, fraud, proposal, enforcement, construction industry, Sri Lanka, export, demand guarantee |
| Subjects: | industry analysis, contract structure, dispute resolution, professional ethics, Geography, health safety and environment, project planning, economic analysis |
| Topics: | Research Practice, Business Strategy, Legal Issues, Geographical Context, Project Management, Health and Safety, Procurement |
| Descriptive scope: | 3 PCT |
N.B. Descriptive scope is a count of how many of the five facets of empirical research are indicated by the words used in title, abstract and keywords. It is not intended as a judgement on the research; merely a count of the kind of word we would expect to indicate Phenomenon, Concepts, Theoretical framing, Empirical techniques, Analytical techniques. If all five are present, then a code of “5 PCTEA” will indicate this. If you feel the coding for this record is questionable, we welcome discussion around the terms we matched or the way we categorized them. The facet you would expect may not be coded, or a facet may be coded inappropriately. This can also bear on a larger question, of which facets should be treated as defining in construction management research. Please get in touch, and we will look at it. More details here