Australia’s Place in Asian Infrastructure Projects: A New Landscape?

This century has been termed the Asian century, and subsequently the investment in infrastructure development across the board will be significant. For Australia there are opportunities and a number of challenges both legally and geopolitically. The development of cross-border infrastructure contracts in Australia and South East Asian nations is complex. This article explores the regulatory framework surrounding long-term infrastructure contracts in the Asia region. Scrutinising the contractual and regulatory frameworks underlying business practice in countries such as Australia and Malaysia highlights that, despite their common law roots, they diverge over how to regulate infrastructure contracts. Moreover, the enforcement of specific contractual clauses also varies. At issue is the need for Australian companies to be aware that with the implementation of the Chinese Belt and Road Initiative, and other regional geopolitical influences, there is the potential to shift and influence the way large-scale infrastructure projects will be negotiated. This is important to note because many infrastructure projects can commence in year one and not be completed for more than a decade. Therefore, careful drafting of contracts and understanding their subsequent enforcement(particularly certain clauses such as frustration and force majeure) along with the different attitudes throughout the region towards governments and private investors need to be considered. This is specifically important while Covid-19 is still an issue as well as the uncertainty created by the war in the Ukraine.