Back-back agreements, where a principal contractor attempts to entrust obligations and commitments to the employer to his subcontractors, are becoming more common in construction projects. While they may be a convenient way to transfer risks and commitments down the chain of responsibility, inadequate wording can lead to particularly complex and difficult-to-resolve disputes. But it is perhaps even more important to illustrate the possible consequences if a party receiving confidential information agrees that third parties register on equivalent terms. In the absence of back-to-back agreements that properly reflect the confidentiality obligations of the original contract, this can be costly. The judgment depended on the organization of the (ambiguous) provisions of the agreement, under which BNP would obtain that third parties would be bound to “similar obligations of secrecy and non-circumvention”. However, a principal contractor generally cannot complete the work alone – he can ask for assistance from several subcontractors. In this case, they want to make sure that there are back-to-back rules, so they are not directly responsible to the client for the work by a subcontractor. As such, they ensure that their construction contract with the subcontractor reflects their contract with the customer. The most important conditions are usually the obligations of the principal contractor, including: However, a recent decision of the Court of Appeal (Dorchester/BNP Paribas, March 7, 2013) is a reminder of the need to apply contracts like all others. They can have draconian effects, especially when a party agrees (as has been generally agreed) to obtain the confidentiality of third parties to whom they transmit confidential information. It is unlikely that a seller will have the means to do so, or that the public will add up a possible sale and should consider what information he can disclose without consent or whether he publishes that personal data from the evaluation documents. For example, instead of disclosing employment contracts, the seller or target company may simply disclose a form contract used for its employees. Under English law, a “back-to-back” contract containing terms by reference cannot contain certain types of clauses from the main contract to the sub-contract.
For these clauses, you may need to use a language in the sub-contract that expresses the desired terms in the main contract, rather than relying on a default use of the framework by the reference clause. Other local and international laws may also prohibit the introduction of certain provisions. To incorporate the terms and conditions of the contract into the back-to-back contracts (subcontractors), copy the terms and conditions applicable in the new contracts. Be sure to exclude all conditions that do not apply, for example. B the total cost of the contract or any other clause that concerns only the principal contractor. This method of drafting back-to-back contracts may seem simple and effective, but it can sometimes be more difficult than writing a standalone contract.