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PAYMENTS AND DISPUTES UNDER FIDIC, IN PARTICULAR UNDER THE FIDIC SILVER BOOK – THE SEDGMAN CASE

International Construction Law Review

PAYMENTS AND DISPUTES UNDER FIDIC, IN PARTICULAR UNDER THE FIDIC SILVER BOOK – THE SEDGMAN CASE GÖTZ-SEBASTIAN HÖK, PhD (GÖTTINGEN) 1 INTRODUCTION TO FIDIC CONTRACTS The 1999 FIDIC Rainbow suite constitutes a detailed and carefully crafted set of inter-related clauses that define a series of interlocking events and periods of time which involve the close collaboration and co-operation of the parties and the engineer. Such collaboration and co-operation is intended to culminate in the issuing of the Performance Certificate referred to in sub-clause 11.9. The events considered by the clauses of the contracts also include the operation of the machinery concerned with payments. All of these procedures must be read in a legal context. As it has been confirmed by HHJ Humphrey LLoyd, FIDIC forms of contract are embedded in the common law notwithstanding the fact that some of their features may be influenced by civil law 2 . In fact no specific endeavours and efforts have been made to emancipate FIDIC forms of contracts of their basic roots, which have been undeniably identified to reside in the common law 3 . Their approach and language still reflect the common law, but presumably not English law alone 4 . Although the FIDIC forms of contract are historically and traditionally more related to the English common law than to any other jurisdiction, it is strange that some of the wording of the contracts does not fit entirely within the settled bounds of English law 5 . In any case, FIDIC forms of contract are not intended to suit particularities or advantages of local legal systems. Rather, FIDIC forms of contract are fit for worldwide use, in particular if the contract has connections to more than one legal system. To this end, in order to facilitate the administration and interpretation of FIDIC based contracts, FIDIC has published complementary guidance notes to help users construe and apply FIDIC terms and conditions appropriately. 1 The author is a German lawyer based in Berlin, registered as a solicitor at the Berlin bar. He is a FIDIC Legal Adviser and listed on the FIDIC President’s list of approved adjudicators. The author thanks Professor Doug Jones for his prudent review of this paper and his advice which is very much appreciated. 2 LLoyd, H [2007] ICLR at p. 505. 3  Bunni, FIDIC Forms of Contract , 3rd Edition, 2005 at p. 10. 4 LLoyd, H [2007] ICLR at p. 505. 5 LLoyd, H [2007] ICLR at p. 505. Pt 3] Payments and Disputes under FIDIC 311

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