CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
The third Part of the International Construction Law Review for 2022 contains a diverse range of articles that provide practical guidance to a range of those involved in the international construction industry. For example, one article provides insight into important matters for consideration when deciding to terminate for Contractor default, one presents potential solutions under which Contractors may be able to minimise the harsh effects of No-Damages-For-Delay clauses, and another discusses the possible improvements to the standard risk allocation for unexpected ground conditions. Alongside the practical guidance for dealing with the challenges that arise during major infrastructure projects, the articles also provide an in-depth legal analysis of the FIDIC Red Book clauses and the enforcement of arbitral awards tainted by bribery. This range of articles will be of interest to readers across the globe given its detailed discussion of Italian, French, English and Indian law.
This Part begins with Franco Mastandrea’s article, “The Quantification of Termination Claims for Contractor Default”, which provides an insightful discussion on the decision to terminate for Contractor default. In the majority of cases where the works are incomplete, a decision will need to be taken as to whether, and if so how, the works are to be completed. The completion arrangements are likely to come under scrutiny and they should be arrived at by careful consideration of matters of importance at the date of termination. This article explores such matters of importance, including urgency and safety concerns, the Employer’s financial exposure, the state of progress, the extent of defects, the interests of third parties, and the selection of appropriate tendering procedures and contractual arrangements with potential replacement contractors. The author argues that completion accounts must properly take account of the notional value of the works to the original Contractor had it taken the whole of the works to completion, the costs incurred, and losses suffered by the Employer. Finally, this article recommends that the applicability or otherwise of liquidated damages post-termination be dealt with expressly in the original construction contract.
The next article, “The FIDIC Engineer in Civil Law Countries – An Italian Approach” by Giuseppe Giancarlo Franco, assesses the compatibility of the FIDIC Red Book clauses (1999 and 2017) with the provisions of Italian contract law. The FIDIC forms of contract, and especially the Red Book, grant the engineer a wide range of powers, including designing, planning and executing a project. In spite of the popularity of FIDIC forms of contract in the international market, their common law background means they are scarcely used in the Italian construction industry. Given this gap in practice, this article analyses the interaction between the powers of a FIDIC