International Construction Law Review
THE FIDIC SUBCONTRACT, FIRST EDITION
EMMA KRATOCHVILOVA AND MICHAEL MENDELBLAT
Herbert Smith LLP
1
I. INTRODUCTION
In our article “Testing the Water—A New FIDIC Subcontract” in the January 2011 edition of this Review
2 we commented on the Test Edition of FIDIC’s new set of Conditions of Subcontract for Construction of Building and Engineering Works designed by the Employer. In that article, we summarised common features of the Subcontract Conditions and then reviewed the most significant provisions in the Test Edition, also looking back to the earlier 1994 edition.
In October 2011, FIDIC published the First Edition of the Conditions of Subcontract and it is the purpose of this article to comment on significant changes in the transition from the Test to the First Edition.
The structure of the First Edition is the same as that of the Test Edition, although there are no changes to the annexes or documents attached.
II. THE FIDIC CONDITIONS OF SUBCONTRACT, FIRST EDITION: DISCUSSION OF SELECTED CLAUSES
1. Compliance with the Main Contract
In sub-clause 2.2 the reference to the subcontractor performing and assuming all the obligations and liabilities of the contractor under the Main Contract has now been qualified by “other than where the provisions of the Subcontract otherwise require”. This is presumably intended to prompt the parties into considering whether there should be further exceptions to the overall principle which by reference to sub-clause 2.2 (xi) should be set out in Part B of Annex A. The exception now also relates to Main Contract sub-clause 2.2 (Permits, Licences or Approvals).
2. Rights, entitlements and remedies under the Main Contract
Sub-clause 2.4 has been made more explicit in that it now opens with the words
1 Emma Kratochvilova is a partner based in Tokyo and Michael Mendelblat is a Professional Support Lawyer, based in London.
2 [2011] ICLR 46.
Pt 2] The FIDIC Subcontract, First Edition
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