International Construction Law Review
THE RAINBOW DOWN UNDER—PART 2: FURTHER REFLECTIONS FROM THE ANTIPODES ON ASPECTS OF THE NEW FIDIC DESIGN-BUILD CONTRACTS
JONATHAN KAY HOYLE1
Senior Associate, Major Projects Group and International Arbitration Group, Clayton Utz, Sydney
INTRODUCTION
In a recent edition of this Review
,2
the author examined, from an antipodean perspective, the revisions by the Fédération des Ingénieurs-Conseil (“FIDIC”) of its standard form international construction contracts.3
This article is a continuation of that examination, which involved a comparative look at the new or revised FIDIC design-build forms—the current Yellow and Silver Books—against the backdrop of Australian law and two Australian standard forms—AS4300 and PC1. As noted in the previous article, the main purpose of the comparison is to examine the manner in which a specific jurisdiction may approach the drafting in the FIDIC contracts and the policy and risk allocation choices made by the equivalent standard form construction contracts being used in that jurisdiction.
Since the publication of the previous article, Standards Australia has published a new design-build standard form. AS4902–2000 is stated to be a design and construct contract4
which has been drafted to update the AS4300 form. It is not the purpose of this article to examine or elaborate upon in any detail the nature of the changes between AS4300 and AS4902. However, reference to the new contract will be made in what follows.5
It should be noted that generic reference will be made to the terms “employer” and “contractor”. Apart from where quotation from the contract
1 The author gratefully acknowledges the invaluable research assistance of Stacey Kelly. The author also wishes to thank Douglas S Jones, AM and His Honour Judge Humphrey LLoyd, QC, and, in particular, Mal Fielding for their comments and encouragement. The usual caveats apply.
3 Collectively, the contracts looked at were the Conditions of Contract for Plant and Design-Build, 1st Edition [1999], known informally as the “Yellow Book” and the Conditions of Contract for EPC/Turnkey Projects, 1st Edition [1999], known informally as the “Silver Book”.
4 Although it is stated in the introduction to the contract that it is also designed for design, development and construct and design, novate and construct. The differences are driven by whether the owner provides a preliminary design as well as project requirements. See Preface to AS4902 General Conditions for Design and Construct
[2000], Standards Australia.
5 Where the term “AS” is used this is a reference to both AS4300 and AS4902 because the drafting has remained the same in both cases.
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The Rainbow Down Under—Part 2
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