i-law

International Construction Law Review

INTRODUCTION

HUMPHREY LLOYD DOUGLAS S JONES

In October last year FIDIC published the First Edition of its new Conditions of Subcontract. It had previously released a Test Edition late in 2009 which was the subject of an extensive analysis in this Review by Emma Kratochvilova and Michael Mendelblat of Herbert Smith LLP.1 In the intervening period, FIDIC received comments on the Test Edition. We are very pleased that Emma Kratochvilova and Michael Mendelblat have agreed to bring readers up to date with the definitive version of the Subcontract in their paper “The FIDIC Subcontract, First Edition” (at page 104). Readers may need to have the previous article handy since the authors do not cover the whole ground again but instead deal with the changes since the Test Edition. In essence, they conclude that, although there have been improvements in favour of subcontractors, there remain provisions which subcontractors are likely to find commercially unacceptable, such as the pay-when-paid provisions and fitness for purpose obligations. They also express disappointment that some of the drafting issues to which they had drawn attention have not been dealt with satisfactorily, in particular, in relation to the indemnities in clause 17 and the dispute resolution provisions in clause 20. The latter in the various options available are likely to be unappealing to all except the determined. The multi-party dispute resolution schemes largely depend for their efficacy on the employer’s agreement but there is at present no provision in the Red Book for this to be given in advance. This omission should be repaired.
Our next contribution comes from Rico Chan of Baker and McKenzie, principal of the Hong Kong and China offices of that firm. He and colleagues have been investigating published Chinese court cases on construction contracts. His findings are published in a paper: “A Limited Review of Published Chinese Court Cases on Construction Contracts” (at page 111). This is the first in a series which covers the published court cases in order to gather some basic statistics and to see whether any relevant legal patterns emerge. The author registers a number of caveats, notably that not all cases are published and that those that are published signal the stance “publicly taken” by Chinese courts. Nevertheless, as the author points out, the results do provide a valuable “snapshot”. The theme for discussion in this article is the legal validity of the contract. We look forward to future articles which should give those who do business in China some guidance as to what might happen should a dispute reach the Chinese courts. The survey also provides useful material for a comparison with other legal systems.
Our third paper is by Dr Götz-Sebastian Hök of Kanzlei, Dr Hök, Steiglmeier and Kollegen, Berlin. Dr Hök has written for us before. We welcome his latest contribution (at page 121): “Employer’s Requirements


The International Construction Law Review [2012

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