International Construction Law Review
THE RAINBOW DOWN UNDER—PART 1: SOME REFLECTIONS FROM THE ANTIPODES ON ASPECTS OF THE NEW FIDIC DESIGN-BUILD CONTRACTS
JONATHAN KAY HOYLE1
Senior Associate, Clayton Utz, Sydney
INTRODUCTION
In 1998, the drafting committee of the Fedération des Ingénieurs-Conseil undertook a radical revision of its standard form international construction contracts.2
This review involved considerable change to the established format and nature of the FIDIC forms. In 1999, following a period of review and comment, FIDIC published first editions of these contracts. This suite of contracts has once again become imprinted on the public imagination (for engineers, lawyers and other construction specialists at least) by references to the colour of the contracts’ covers. New Red3
and Yellow4
Books have appeared, supplemented by a new form, the Silver Book,5
stated to deal specifically with EPC project contracts.
The pages of this and other academic legal journals have subsequently been replete with a wealth of comment on these latest editions of (and additions to) the FIDIC family.6
This degree of interest is to be expected. FIDIC is striving hard to retain its place—developed over many years of
1 The author gratefully acknowledges the research assistance of Coreena Smith and Michelle Wood, paralegals in the Clayton Utz Major Projects Group. The author wishes to thank Judge Humphrey LLoyd QC, Douglas S Jones and Frank Bannon for their comments and support. Any errors that remain in the article are entirely the responsibility of the author.
2 The first edition of the Red Book was issued in 1957, the second in 1969, the third in 1977 and the fourth in 1987, without substantial change to wording or structure (see The FIDIC Fourth Edition: Good News and Bad News,
Richard A Eastman, [1989] 9 Construction Lawyer
7). The first edition of the Yellow Book was issued in 1963, and had reached its third edition (1987) largely unmodified. The new Yellow Book, however, may be seen as both a second edition to the Orange Book of 1995 and a supersession of previous Yellow Books (see FIDIC’s New Rainbow
—An Overview of the Red, Yellow, Silver and Green Test Editions,
Edward Corbett [1999] 16 ICLR 39).
3 Conditions of Contract for Construction (For Building and Engineering Works Designed by the Employer), 1st Edition [1999].
4 Conditions of Contract for Plant and Design-Build (For Electrical and Mechanical Plant, and for Building and Engineering Works Designed by the Contractor), 1st Edition [1999].
5 Conditions of Contract for EPC Turnkey Projects. 1st Edition [1999].
6 For example: FIDIC’s Conditions of Contract for the Next Century: 1998 Test Editions,
Peter Booen [1999] 16 ICLR 5; FIDIC Design-Build, Turnkey and EPC Contracts,
Joseph Huse & Jonathan Kay Hoyle [1999] 16 ICLR 27; FIDIC’s New Rainbow—An Overview of the Red, Yellow, Silver and Greet Test Editions,
Edward Corbett [1999] 16 ICLR 39; A Contractor’s View on FIDIC Conditions of Contract for EPC Turnkey Projects,
Agne Sandberg [1999] 16 ICLR 47; The New Forms of Security in FIDIC’s 1999 Conditions of Carriage,
Roeland Bertrams [2000] 17 ICLR 369; The Use of the FIDIC Silver Book in the Context of a BOT Project,
Joseph Huse [2000] 17 ICLR 384; FIDIC’s New Standard Forms of Contract—Force Majeure, Claims, Disputes and Other Clauses
, Christopher Seppala [2000] 17 ICLR 235; Fidic’s New Rainbow 1st Edition—An Advance?
Edward Corbett [2000] 17 ICLR 253; FIDIC’s New Suite of Contracts,
Fiona Reilly and Andrew Teesdale [2000] 16 Const LJ 187.
[2001
The International Construction Law Review
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