International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
This issue begins with four articles with a common theme – the effect of local law and practice on the use of a standard form, here the FIDIC Conditions (mainly the Red Book). It is sometimes thought that standard conditions, like the General Conditions of the Red Book are “sacrosanct” and cannot be or should not be altered. However standard forms, unless prescribed, e.g. by an employer, contractor, sub-contractor or supplier (or a group of employers etc.), or endorsed by all relevant sections of industry, are merely models in that their use has to be considered in the light of the circumstances of each individual project. Thus the Particular Conditions (Part II Conditions) are an integral part, not only of the Red Book but of the rest of the multi-coloured FIDIC suite of conditions. They are intended to supplement and to modify the General Conditions for the physical, economic and other requirements of the project for which they are to be used. That includes what is required by the country in which the works are to be carried out. The Multi-lateral Development Bank version of the FIDIC Red Book (the Pink Book) provides typical illustrations of such changes. That version also includes a few alterations to the Red Book that do something towards producing a properly balanced set of conditions. Nevertheless they are still not model conditions, in the sense of being exemplars of good practice. The first four contributions demonstrate what changes are being made or should be made.
The first paper by Dr Dimitar Hristoforov Kondev is entitled “Is Dispute Adjudication under FIDIC Contracts for Major Works Indeed a Pre-condition to Arbitration?” (page 256). Dr Kondev discusses the position that has been adopted in some Central and Eastern European countries where an alternative interpretation of clause 20 of the FIDIC Red Book is favoured which allows parties to avoid adjudication by a Dispute Board and permits them to go straight to arbitration.
The second paper is a study by Mr Amaury Teillard of “The Start Date for Post-contractual Liability in French law in the FIDIC Red and Yellow Books” (page 269). The author explains that French law creates three post-contractual legal liabilities: “garantie de parfait achèvement” (total completion warranty), “garantie biennale” (two-year liability) and “garantie décennale” (10-year liability). The latter is found in many other countries although sometimes for a shorter period – e.g. four years in Germany. The author discusses how these warranties fit with the FIDIC Conditions and in particular the start date when the works are received or taken over. Do certain post-contractual legal liabilities start on the issue of the Taking-Over Certificate, or on the issue of the FIDIC Performance Certificate? In FIDIC contracts, clause 11.9 says: “Only the Performance Certificate shall be deemed to constitute acceptance of the Works”. Mr Teillard examines whether French case law supports the view that post contractual legal liabilities start then. He also considers the relationship between the Defects Notification Period in the FIDIC Conditions and the Total Warranty Period in French law. He suggests that some harmonisation of post-contractual liabilities systems, at least as regards decennial liability, would benefit employers, contractors and their insurers.
The International Construction Law Review [2014
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