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PROCESS PLANT CONSTRUCTION: THE ENAA MODEL FORM OF CONTRACT (2010 EDITION) - COMMENTS AND COMPARISONS

International Construction Law Review

PROCESS PLANT CONSTRUCTION: THE ENAA MODEL FORM OF CONTRACT (2010 EDITION)—COMMENTS AND COMPARISONS A R (TONY ) MARSHALL Partner, Hogan Lovells International LLP INTRODUCTION Nearly 25 years have passed since the appearance, in 1986, of the first English language model form of contract for process plant construction published by the Engineering Advancement Association of Japan (“ENAA”). From a modest start, the form has now gained a considerable degree of prominence (not least through the adoption of an adapted version of the form by the World Bank in its set of Standard Bidding Documents for Plant Procurement—of which more below), mounting a respectable challenge, in the plant procurement field, to other international forms such as the Conditions of Contract for Plant and Design-Build published by the Fédération Internationale des Ingénieurs-Conseils (“FIDIC”) (usually referred to as the “FIDIC Yellow Book”). As a result, the form is far more familiar to international non-Japanese contractors than it was at the outset. But it should be set to become more prominent still, given its particular approach towards the licensing of intellectual property rights owned by the contractor (affording to these rather greater protection than the FIDIC Yellow Book) which arguably makes it especially suited to the project which centres around a proprietary product supplied by the contractor. Over the period 1986 to 1997, the ENAA forms of contract were the subject of extensive comment in this Review. 1 However, no further comment has appeared since then, attention having perhaps shifted, in the intervening period, to the reorganised suite of FIDIC forms published in 1999 2 and to an extent also to successive editions of the new-style “New Engineering Contract” form first published by the Institution of Civil Engineers of Great Britain in 1995. The publication in April 2010 of a second revision of ENAA’s Process Plant form (referred to below as “the Process Plant form” or simply “the ENAA form”) is a useful prompt to practitioners to turn their attention 1 These previous articles are listed in chronological order of appearance in the Appendix at p. 170. 2 The 1999 suite comprises: Conditions of Contract for Construction (“the Red Book”); Conditions of Contract for Plant and Design-Build (“the Yellow Book”); Conditions of Contract for EPC/Turnkey Projects (“the Silver Book”); and the Short Form of Contract for Works of Relatively Small Capital Value (“the Green Book”). Pt 2] Process Plant Construction and the ENAA Contract 139

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