International Construction Law Review
CONTRACT CONDITIONS FOR GROUND RISK UNDER THE 1999 FIDIC SUITE OF CONTRACTS
Eugenio Zoppis
MSc, MCIArb, MCInstCES, GMICE, MAPM
PhD Researcher at King’s College – London
This article is based on a King’s College London, Centre of Construction Law dissertation in Construction Law and Dispute Resolution, 2016.
ABSTRACT
Issues related to ground conditions such as the responsibility for carrying out site investigations and disclosing the available information are debated, identifying “foreseeability” as the core issue for the allocation of the ground risk.
As the distribution of risk is achieved through the conditions of contract, the ground risk is analysed through the Red, Yellow and Silver Books of the 1999 Contract Suite of Fédération Internationale Des Ingénieurs Conseils (FIDIC), in order to see how these forms of contract allocate that risk among the parties.
1. INTRODUCTION: GROUND RISK AND UNFORESEEABILITY
1.1. Ground investigations and site information
Under most jurisdictions, the allocation of risk for ground conditions is regulated by the terms of the Contract that, where permitted, may overrule the law provisions at common and civil law1 as “the parties have made their own law by contracting …”.2
Accordingly, the responsibility for soil investigations and the geotechnical data primarily depends on the form of contract, and then on the implied terms and the rules of the law of the Contract. In common law, the evolution of case law, resulted in alternating positions. In Bottoms v York (1892)3 there were insufficient site investigations and the Employer provided the design, but did not disclose a report on ground
1 Reference to the notes on subsoil conditions under several jurisdictions included in Studies in European Construction Law, 2015 ESCL. As an exception, the Supreme Court of Italy ruled that the contractor may not waive the responsibility under the contract for serious defects due to ground conditions (CC 7 January 2000/81 GI, 2000, 977).
2 A dictum of the Court of Appeal from World Online Telecom v I-Way Ltd (CA) [2002] EWCA Civ 413, but is not a ground conditions case.
3 Bottoms v York Corporation (1892) HBC (4th Edition) Vol ii, p 208.
Pt 3] Contract Conditions for Ground Risk
307