COMPARISON OF FIDIC CONDITIONS OF CONTRACT (1999)
COMPARISON OF FIDIC CONDITIONS OF CONTRACT (1999) AND UNCITRAL LEGALGUIDE FROM PROSPECTIVE DISPUTES AND CLAIMS PERSPECTIVEA THESIS SUBMITTED TOTHE GRADUATE SCHOOL OF NATURAL AND APPLIED SCIENCESOFMIDDLE EAST TECHNICAL UNIVERSITYBYFATMA PELĠN AKTUĞIN PARTIAL FULFILLMENT OF THE REQUIREMENTSFORTHE DEGREE OF MASTER OF SCIENCEINCIVIL ENGINEERINGMARCH 2012
Approval of the thesis:COMPARISON OF FIDIC CONDITIONS OF CONTRACT (1999) AND UNCITRALLEGAL GUIDE FROM PROSPECTIVE DISPUTES AND CLAIMS PERSPECTIVEsubmitted by FATMA PELĠN AKTUĞ in partial fulfillment of the requirements for thedegree of Master of Science in Civil Engineering Department, Middle East TechnicalUniversity by,Prof. Dr. Canan ÖzgenDean, Graduate School of Natural and Applied SciencesProf. Dr. Güney ÖzcebeHead of Department, Civil Engineering Dept.Prof. Dr. M. Talat BirgönülSupervisor, Civil Engineering Dept., METUProf. Dr. Ġrem Dikmen TokerCo-Supervisor, Civil Engineering Dept., METUExamining Committee Members:Assoc. Prof. Dr. Rifat SönmezCivil Engineering Dept., METUProf. Dr. M. Talat BirgönülCivil Engineering Dept., METUProf. Dr. Ġrem Dikmen TokerCivil Engineering Dept., METUProf. Dr. Murat GündüzCivil Engineering Dept., METUGülĢah Fidan, M. Sc.METAG A.ġ.Date: 26/03/2012
I hereby declare that all information in this document has been obtained andpresented in accordance with academic rules and ethical conduct. I also declarethat, as required by these rules and conduct, I have fully cited and referenced allmaterial and results that are not original to this work.Name, Last Name : Fatma Pelin AKTUĞSignatureiii:
ABSTRACTCOMPARISON OF FIDIC CONDITIONS OF CONTRACT (1999) AND UNCITRALLEGAL GUIDE FROM PROSPECTIVE DISPUTES AND CLAIMS PERSPECTIVEAktuğ, Fatma PelinM.Sc., Department of Civil EngineeringSupervisor: Prof. Dr. Talat BirgönülCo-supervisor: Prof. Dr. Ġrem Dikmen TokerMarch 2012, 195 pagesIn today‟s world where no borders exist and there is a need for a common language,which may be a common law or a basis contract while performing works, that will enablea common ground for different legal traditions, different legal systems, different laws;there lies internationally recognized standard contracts.These contracts are not limited to documents published by International Federation ofConsulting Engineers (FIDIC), Institution of Civil Engineers in the United Kingdom (ICE),The Engineers Joint Contract Documents Committee (EJCDC) or United NationsCommission on International Trade Law (UNCITRAL).It is the contract; where work is detailed, responsibilities are assigned, the consequencesof not fulfilling those responsibilities are defined, the procedure through which theexecution of responsibilities to be enforced are construed, the procedure for disputesettlement is specified; the monetary issues find its place. Therefore, contract is the keyiv
document parties should work on carefully before agreeing on. It is also the keydocument on which, at the first instance, the parties would always refer to during theexecution of the works, as well during the guarantee period.Contract, being the essential factor in execution of Works, should be drafted and followedwith care.Among the standard contracts, one of the documents produced by FIDIC aims to set acommon ground for construction contracts where design is done by the Employer. Thiswas mainly known as “Red Book”, which is updated as Conditions Of Contract ForConstruction For Building And Engineering Works Designed By The Employer, FirstEdition 1999. From now on, it will be shortly referred as FIDIC Conditions of Contract. It isas well known as one of the most common international document by many Contractorsworking in Europe or Contractor working for Europe based Employers or with Europebased Consultants.On the other hand, the Working Group on the New International Economic Order ofUNCITRAL, which is composed of 36 members of UNCITRAL, bearing in mind theextensive development in international trade, has worked on principles to guide thecontracting parties for construction of industrial works. The outcome, UNCITRAL LegalGuide on Drawing up International Contracts for the Construction of Industrial Works, ispublished in 1988. The document will be shortly referred as UNCITRAL Guide throughoutthe thesis.Although latter is aimed for construction of industrial works specifically, studying it byinductive reasoning, the aim is to analyze FIDIC Conditions of Contract under theguidance of UNCITRAL Guide.The comparative analysis does not cover each and every area pointed out in UNCITRALGuide, but focuses on the issues which in common, lead to a claim. In the context of thecomparison reference to some local practices is drawn highlighting the importance ofselection of law for the execution of the contract.Keywords: International Contracts, Claims, FIDIC, UNCITRAL, Law.v
ÖZFIDIC SÖZLEġMESĠ (BĠRĠNCĠ BASIM 1999) ĠLE UNCITRAL HUKUK KILAVUZUNUNOLASI UYUġMAZLIKLAR VE HAK TALEPLERĠ AÇISINDAN KARġILAġTIRILMASIAktuğ, Fatma PelinYüksek Lisans, ĠnĢaat Mühendisliği BölümüTez Yöneticisi: Prof. Dr. Talat BirgönülOrtak Tez Yöneticisi: Prof. Dr. Ġrem Dikmen TokerMart 2012, 195 sayfaSınırların olmadığı, iĢin ifasında farklı hukuk geleneklerini, farklı hukuk sistemlerini, farklımevzuatları ortak bir noktada buluĢturacak, ortak bir dile, diğer bir deyiĢle ortak birhukuka veya temel bir sözleĢmeye ihtiyaç duyulan günümüz dünyasında, uluslararasıgeçerliği olan tip sözleĢmeler bulunmaktadır.Söz konusu dökumanlar FIDIC (Uluslararası MüĢavir Mühendisler Birliği), ICE (ĠngiltereĠnĢaat Mühendisleri Enstitüsü), EJCDC (Birlesik Mühendisler Sözlesme DokümanlariKomitesi) ve UNCITRAL (BirleĢmiĢ Milletler Uluslararası Ticaret Hukuku Komisyonu)tarafından oluĢturulanlarla sınırlı değildir.ĠĢin detaylandırıldığı, tarafların karĢılıklı sorumluluklarının tanımlandığı, sorumluluklarınyerine getirilmemesinin sonuçlarını içeren, sorumlulukların ifasının temini için cebriyolların yer aldığı, anlaĢmazlıkların çözümü ve parasal konuların tanımlandığı dökumanolan sözleĢme, bu anlamda, tarafların üzerinde anlaĢmadan önce üzerinde özenlevi
çalıĢmaları gereken, iĢin ifası sırasında ve sonrasındaki garanti sürecinde önceliklebaĢvurmaları icap eden ana kaynaktır.ĠĢin ifasında temel faktör olan sözleĢme, bu yönüyle, dikkatle oluĢturulmalı veizlenmelidir.FIDIC tarafından yayımlanan dökümanlardan biri, tasarımı iĢveren tarafından yapılaninĢaat iĢleri sözleĢmeleri için ortak zemin oluĢturmayı amaçlar. “Kırmızı Kitap” olarakbilinen söz konusu dökuman, Tasarımı ĠĢveren Tarafından GerçekleĢtirilen Yapım veMühendislik ĠĢleri SözleĢmesi ġartnamesi, Birinci Basım 1999 olarak güncellenmiĢtir.Kısaca FIDIC ġartnamesi olarak anılan olan Ģartname, Avrupa‟da veya Avrupa bazlıiĢverenler için veya Avrupa bazlı müĢavir firmalarla iĢ yapan Türk müteahhitleri tarafındanen iyi bilinen sözleĢmelerdendir.Diğer taraftan, UNCITRAL‟in 36 üyeli Uluslararası Yeni Ekonomik Düzen ÇalıĢma Grubu,uluslararası ticaretteki geliĢmeleri dikkate alarak, endüstriyel yapıların inĢaatına iliĢkin,taraflara ıĢık tutabilecek sözleĢme prensipleri üzerinde çalıĢmıĢtır. Tez içerisinde kısacaUNCITRAL Rehberi olarak anılan çalıĢmanın sonucu, Endüstriyel Tesis inĢaatıUluslararası Mukavelelerinin Düzenlenmesi hakkında UNCITRAL Hukuk RehberibaĢlığıyla 1988 yılında yayınlanmıĢtır.UNCITRAL Rehberi, endüstriyel yapıların inĢaatı için kaleme alınmıĢ olsa da, tümevarımprensibinden yararlanılarak FIDIC ġartnamesi‟nin incelenmesinde referans alınmıĢtır.KarĢılaĢtırmalı analiz, UNCITRAL Rehberi‟nin tüm baĢlıklarını kapsamamakta, dahasıklıkla uyuĢmazlığa neden olduğu bilinen konuları ele almaktadır. KarĢılaĢtırmakapsamında yerel uygulamalara da değinilmekte, bu minvalde hukuk seçimininsözleĢmenin uygulanması açısından önemine değinilmektedir.Anahtar Sözcükler: Uluslararası SözleĢmeler, Hak Talepleri, FIDIC, UNCITRAL, Hukuk.vii
BabiĢime,viii
ACKNOWLEDGEMENTSTwo majors, namely civil engineering and degree of law; which I studied were due tosome people other than me. First, it was my father who desired me to study civilengineering, and then the idea of law presented by Bülent Erdoğan was also highlyappreciated with my mother and father. My name-mother Pelin Korkmaz, and herhusband Abidin Korkmaz, whose role in my life cannot be argued, coming into the sceneas usual, made it impossible for me not to study law.Being used to beloved ones orienting, surprisingly this graduate study in civil engineering,is the first time in my life, unfortunately at the age of 28, that I have made a choice on myown.I am grateful to the abovementioned personalities have role in my life and lead me at anystage.It is Prof. Dr. Güney Özcebe, Prof. Dr. Talat Birgönül, Instr. Dr. Erhan Karaesmen thatthrough whom, I strengthened the courage of study.Prof.Dr. Ġrem Dikmen Toker, who had a very special place as an Assistant Professorduring my B.S. study making everything crystal clear to understand, when she wasappointed as Co-Supervisor I was honored.I hereby once again want to thank to Prof. Dr. Ġrem Dikmen Toker and Prof. Dr. TalatBirgönül, for their unconditional support, patience and tolerance at each step of thisstudy. Despite the 2000 kilometers in between, they were more than supportive andunderstanding.Sebay Durul, I do not know and I am not sure if I want to know why, who did not forgetmy name even after 8 years after my graduation, will always be my hero in CivilEngineering Faculty, providing a solution to the most bushy problems I brought to him.Among the others, it is Prof. Dr. Nuray Tokyay, Prof. Dr. Mustafa Tokyay, Instr. Dr. EnginKaraesmen and Instr.Dr. Erhan Karaesmen, who made me enjoy civil engineering, havea considerable role in my life, and may unconsciously directed me in this way.Bülent Erdoğan has directly and indirectly affected and touched my life at many points. Atan instant, where I was feeling in the middle of nowhere, when he took his time to contactix
me, ask about my thesis, lead the way, and motivate; once again it was he, standing atthe cornerstone.My mum, “anniĢim”. Always more than supportive. Sometimes like a mum, sometimeslike a professor, sometimes like a psychologist, sometimes like a close friend, alwaysresolving problems in my life, helping me to clear up the bushes on my way. She felt that,I am a bit of tied up by the writing a thesis, while working on a completely different subjectas occupation, while at the same time not trying to give up any social contact, also tryingto travel around to see more and more of the world. Thus she came to Berlin, in only 3days diagnosed the situation, organized the setting to sooth my exhaustedness, arrangedit for effectiveness and returned back. As always, she was a miracle.I want to thank Thomas Konegen for his live support and understanding, especially at thelast stages; not mentioning the proof-reading he did.I would like to once again thank to each above mentioned name and the others who arenot named here for being in my life and playing a considerable role in realization of thisstudy.Berlin, 2012x
TABLE OF CONTENTSABSTRACT . ivÖZ . viACKNOWLEDGEMENTS . ixTABLE OF CONTENTS . xiLIST OF FIGURES . xvLIST OF TABLES . xviLIST OF ABBREVIATIONS.xviiCHAPTERS1. INTRODUCTION. . 11.1. GENERAL REMARKS. . 11.2. LITERATURE REVIEW. . 32. BACKGROUND OF THE TWO FORMS OF DOCUMENTS . 82.1. UNCITRAL AND THE UNCITRAL GUIDE . 82.2. FIDIC CONDITIONS OF CONTRACT. 103. ANALYSIS OF FIDIC CONDITIONS OF CONTRACT UNDERTHE PRINCIPLES OF UNCITRAL GUIDE. 133.1. METHODOLOGY. . 133.2. TERMINOLOGY. . 213.3. ENTERING INTO CONTRACT . 213.3.1. UNCITRAL GUIDE. 223.3.2. FIDIC CONDITIONS OF CONTRACT . 22xi
3.3.3. NOTES ON SUB-SECTION.223.4. GENERAL REMARKS ON DRAFTING. 233.4.1. LANGUAGE OF CONTRACT . 233.4.1.1. UNCITRAL GUIDE . 233.4.1.2. FIDIC CONDITIONS OF CONTRACT . 243.4.1.3. NOTES ON SUB-SECTION . 243.4.2. CONTRACT DOCUMENTS, HIERARCHY ANDINTERPRETATION. . 243.4.2.1. UNCITRAL GUIDE . 243.4.2.2. FIDIC CONDITIONS OF CONTRACT . 253.4.2.3. NOTES ON SUB-SECTION . 263.5. DESCRIPTION OF WORKS AND QUALITY GUARANTEE . 273.5.1. UNCITRAL GUIDE. 273.5.2. FIDIC CONDITIONS OF CONTRACT . 303.5.3. NOTES ON SUB-SECTION. 323.6. PRICE AND PAYMENT CONDITIONS . 353.6.1. UNCITRAL GUIDE. 353.6.2. FIDIC CONDITIONS OF CONTRACT . 383.6.3. NOTES ON SUB-SECTION. 393.6.3.1. PACTA SUNT SERVANDA, CLAUSULA REBUS SICSTANTIBUS, ALTERATION OF CONTRACTS . 403.7. CONSULTING ENGINEER. . 423.7.1. UNCITRAL GUIDE. 423.7.2. FIDIC CONDITIONS OF CONTRACT . 453.7.3. NOTES ON SUB-SECTION. 463.8. INSPECTIONS AND TESTS DURING MANUFACTURE ANDCONSTRUCTION. 503.8.1. UNCITRAL GUIDE. 513.8.2. FIDIC CONDITIONS OF CONTRACT . 523.8.3. NOTES ON SUB-SECTION. 523.9. DELAY, DEFECTS AND OTHER FAILURES TO PERFORM. 533.9.1. UNCITRAL GUIDE. 533.9.1.1. PURCHASER'S REMEDIES. 533.9.1.1.1. Delay in Construction by Contractor . 533.9.1.1.2. Defective Construction by Contractor . 56xii
3.9.1.1.2.1. Defects Discovered During Construction.593.9.1.1.2.2. Construction Deemed Defective BecausePerformance Tests Not Conducted . 603.9.1.1.2.3. Defects Discovered During PerformanceTests. . 603.9.1.1.2.4. Defects Discovered After Acceptance andNotified During Guarantee Period . 633.9.1.1.3. Defects for Which Contractor Is Not Liable . 643.9.1.2. CONTRACTOR'S REMEDIES . 653.9.1.2.1. Delay in Payment of Price or in Providing Securityfor Payment of Price. . 653.9.1.2.2. Delay in Taking Over or Accepting Works . 653.9.1.2.3. Failure to Supply Design, Equipment or Materials forConstruction in Time and Free of Defects . 663.9.2. FIDIC CONDITIONS OF CONTRACT . 673.9.2.1. PURCHASER’S REMEDIES . 673.9.2.1.1. Delay in Construction by Contractor . 673.9.2.1.2. Defective Construction by Contractor . 683.9.2.1.2.1. Defects Discovered During Construction .723.9.2.1.2.2. Construction Deemed Defective BecausePerformance Tests Not Conducted . 733.9.2.1.2.3. Defects Discovered During PerformanceTests. . 733.9.2.1.2.4. Defects Discovered After Acceptance andNotified During Guarantee Period . 743.9.2.1.3. Defects For Which Contractor Is Not Liable . 753.9.2.2. CONTRACTOR’S REMEDIES . 753.9.2.2.1. Delay in Payment of Price or In Providing Securityfor Payment of Price 763.9.2.2.2. Delay in Taking Over or Accepting Works . 783.9.2.2.3. Failure to Supply Design, Equipment or Materials forConstruction in Time and Free of Defects . 793.9.3. NOTES ON SUB-SECTION. 803.9.3.1. PURCHASER'S REMEDIES. 803.9.3.1.1. Delay in Construction by Contractor . 813.9.3.1.2. Defects. . 833.9.3.1.3. Defects for Which Contractor Is Not Liable . 893.9.3.2. CONTRACTOR'S REMEDIES . 89xiii
3.9.3.2.1. Delay in Payment of Price or in Providing Securityfor Payment of Price. . 893.9.3.2.2. Delay in Taking Over or Accepting Works . 913.9.3.2.3. Failure yo Supply Design in Time and Free ofDefects, and Other Failures . 913.10. VARIATION CLAUSES. . 933.10.1. UNCITRAL GUIDE. 933.10.2. FIDIC CONDITIONS OF CONTRACT . 983.10.3. NOTES ON SUB-SECTION. 983.11. CHOICE OF LAW. . 993.11.1. UNCITRAL GUIDE. 993.11.2. FIDIC CONDITIONS OF CONTRACT . 1013.11.3. NOTES ON SUB-SECTION. 1023.11.3.1. NOTES ON FIDIC CONDITIONS OF CONTRACT SUBCLAUSE 20.1 [CONTRACTOR’S CLAIMS] . 1043.11.3.1.1. If All Claims Fall Under Sub-Clause 20.1[Contractor’s Claims] . 1063.11.3.1.2. 28 Days Limit to Give Notice for Claim . 1073.11.3.1.3. Compared to Employer’s Right to Claim . 1083.11.3.1.4. Heads of Claim. 1093.11.3.1.5. Why Dispute Adjucation Board Decision orArbitration May Not Be a Solution . 1124. SUMMARY AND DISCUSSION OF RESULTS . 117REFERENCES. . 125APPENDICESA. TURKISH LAW OF OBLIGATIONS, LAW NO: 6098. 127B. GERMAN LAW OF OBLIGATIONS . 141C. GENERAL CONDITIONS OF CONSTRUCTION WORKS . 149D. REGULATION (EC) NO 864/2007 (ROME II) . 159E. REGULATION (EC) NO 593/2008 (ROME I) . 176xiv
LIST OF FIGURESFIGURES1REMEDIES PROVIDED TO PURCHASER FOR DELAYS. 542REMEDIES PROVIDED TO PURCHASER FOR DEFECTS . 583REMEDIES PROVIDED TO PURCHASER WHEN DEFECTS AREDISCOVERED DURING CONSTRUCTION . 594REMEDY OF REFUSE TO ACCEPT WORKS, WHEN DEFECTS AREDISCOVERED DURING PERFORMANCE TESTS. . 605WHEN PURCHASER PREFERS TO ACCEPT THE WORKS ALTHOUGHDEFECTS ARE DISCOVERED DURING PERFORMANCE TESTS. . 616REMEDY PROVIDED TO WHEN DEFECTS ARE DISCOVERED WITHINTHE GUARANTEE PERIOD . 637SUB-CLAUSE 8.7 [DELAY DAMAGES] OF FIDIC CONDITIONS OFCONTRACT . 688SUB-CLAUSE 2.5 [EMPLOYER’S CLAIMS] OF FIDIC CONDITIONS OFCONTRACT . 689SUB-CLAUSE 16.1 [CONTRACTOR’S ENTITLEMENT TO SUSPENDWORK] OF FIDIC CONDITIONS OF CONTRACT . 7710SUB-CLAUSE 1.9 [DELAYED DRAWINGS OR INSTRUCTIONS] OFFIDIC CONDITIONS OF CONTRACT . 7911SUB-CLAUSE 7.4 [TESTING] OF FIDIC CONDITIONS OF CONTRACT 8012SUB-CLAUSE 20.1 OF FIDIC CONDITIONS OF CONTRACT . 11313DISPUTE RESOLUTION MECHANISM PER SUB-CLAUSE 20.2-20.7 OFFIDIC CONDITIONS OF CONTRACT . 11414SUB-CLAUSE 20.7 OF FIDIC CONDITIONS OF CONTRACT . 114xv
LIST OF TABLESTABLES1LIST OF SUB-CLAUSES WHERE CONTRACTOR IS ENTITLED TOCOST AND PROFIT. 1112LIST OF SUB-CLAUSES WHERE CONTRACTOR IS ENTITLED TOONLY COST . 112xvi
LIST OF ABBREVIATIONSAALCCAsian-African Legal Consultative CommiteeACEAssociation of Consulting Engineers in the United KingdomAIAAmerian Institute of ArchitectsBGBBürgerliches Gesetzbuch (German Civil Law)CECCCivil Engineering Contracts CommitteeCICAConfederation of International Contractors‟ AssociationsEICEuropean International ContractorsEJCDCThe Engineers Joint Contract Documents CommitteeFARFederal Acquistion Regulation (United States of America)FIDICFederation Internationale Des Ingenieurs Conseils (InternationalFederation of Consulting Engineers)FIECFederation Internationale du Batiment et des Travaux Public (nowknown as the International European Construction Federation)ICCInternational Chamber of CommerceICEInstitution of Civil Engineers in the United KingdomINCOTERMSInternational Rules for the Interpretation of Trade TermsUNCITRALUnited Nations Commission on International Trade LawUNCITRAL Guide UNCITRAL Legal Guide on Drawing up International Contracts for theConstruction of Industrial WorksUS Army COEUnited States Army Corps of EngineersMTKMilletlerarası Tahkim Kanunu (International Arbitration Law, Turkey),Law No: 4686MÖHUKMilletlerarası Özel Hukuk ve Usul Hukuku Kanunu (Law on PrivateInternational Law and International Civil Procedure, Turkey), Law No:5718xvii
CHAPTER 1INTRODUCTION1.1. GENERAL REMARKSIn today‟s world, there exist no borders. It is such that, a contractor of “origin X” mayperform a work for a client of “origin Y” in a “country Z”, where they may agree such thatin case of a conflict an international body or courts of “origin Q” will be involved, wherelaws of “country W” would govern. When there is also a second contract between theclient and the engineer / consultant the case becomes more complex. As well, thedesigner would have intellectual property rights, when there occurs variation in designduring construction. In respect to multi-body contractors, such as a joint venture or aconsortium, or inevitably more common, the subcontractors of different origins, each partywould like to prevent a dispute.Where parties subject to different legal systems come into a pot, even if arbitration isperceived to be economical and faster compared to brining a case before a court, itshould be noted that, it is only relatively economical and faster. On the other hand, takinginto consideration the execution of the arbitration decision in a country‟s legal system,which is again to deal with foreign objects, arbitration may turn out to be a non-solution.Therefore the key point is, to avoid disputes; which unfortunately is merely impossible inthe construction industry. So it is the contract to have a role in minimizing the disputes. Infact, a contract is the basic document where all responsibilities, duties and solutionmethods to problems, claims, changes, variations, extensions, and disputes are covered.Even the case is such; parties usually do not pay adequate attention to the contract. Thereason for the client being often to think, it is he who drafted the contract, thereforenothing negative can happen. On the other hand, the reason for the contractor not payingenough attention to contract drafting, often being economic reasons, being in need of anew project to work on, and the risk of losing the bid if he is to complain about thecontract.1
However it is not always bargaining on the contract, it is merely knowing the rights, whatcan the contract bring, what can be the consequences, what is the possible outcome incase of a change, what is the process for a time extension and etc. This would thenenable the contractor to evaluate his risks and price accordingly. On the other hand, ifchange procedure is not so easy, claims are not welcome by the contract, if there existadditional responsibilities per local law it may be better for the client to notice theprospective contractor -especially if his price seems lower than expected- before signingthe contract, thus the contractor may revise his price and the client therefore reduce hisrisk that the contractor will not be incapable to complete the work, or drop out in themidway.When it comes to contract drafting there will certainly be different concerns as there aredifferent legal traditions, as Anglo Saxon, European (Roman), Islamic or Socialist. Inaddition to this, considering the legal systems even in the same legal tradition, one maystill have to deal with different implementations.In Anglo-Saxon tradition, the emphasis is on case law, detailed regulations are notcommon. This would have its reflections in private contracts as well. A legal personfamiliar with the case-law tradition may prefer to skip some issues, while a legal orparalegal from Continental Europe tradition would prefer more issues to be recorded fromthe beginning.On the other hand, when the parties refer to an international body in case of disputes,there rises the problem of enforceability of the outcome. Therefore, the emphasis shouldbe on prevention of conflicts and as well drafting a contract, which is to cover as muchpoints as it can.However, while drafting a contract with an idea to cover each and every point, one shallbe careful not to become entrapped in the contract. Prussian Civil Code of 17,000paragraphs is a good example regards the fact that when one tries to detail each andevery point, the applicability will fail, and still there would be points not covered.In this aspect, and keeping in mind FIDIC is more a private organization compared toUNCITRAL‟s character of Governmental constitution, the FIDIC Conditions of Contract(which refers to “Conditions Of Contract For Construction For Building And EngineeringWorks Designed By The Employer, First Edition 1999” throughout this Thesis) andUNCITRAL Guide (which refers to “UNCITRAL Legal Guide on Drawing up InternationalContracts for the Construction of Industrial Works” throughout this Thesis) is analyzedwith an aim to understand similarities and differences in their approaches. During thestudy, the nature of the UNCITRAL Guide, which it is not basically dealing withconstruction but with construction of industrial facilities such as petrochemical plants,2
fertilizer plants and hydroelectric plants; however aimed to assist persons involved in thenegotiation and drafting of contracts of other types- is respected.In certain parts of the Thesis, there are references to local laws of some countries,especially Turkish Code of Obligations, which is as well a part of Turkish Civil Law. Thereason why the specific laws such as Public Works Regulations are not taken as areference for comparison is, it is the Civil Law and thus Code of Obligations being thebasis norm setting up the periphery, and all the other norms shall be in conformity with it.The study, namely, comparison of FIDIC Conditions of Contract and UNCITRAL Guide isbased on literature review; whereas talks with experts in construction industry and in legalarena are taken advantage of.Chapter 2 of the thesis is an introduction to the standard documents, reviewing shortlythe history and background how and on which basis FIDIC Conditions of Contract wascreated, and the motto behind UNCITRAL Guide.Chapter 3, analyzes FIDIC Conditions of Contract under the principles set out inUNCITRAL Guide. Special attention
FIDIC SÖZLEġMESĠ (BĠRĠNCĠ BASIM 1999) ĠLE UNCITRAL HUKUK KILAVUZUNUN OLASI UYUġMAZLIKLAR VE HAK TALEPLERĠ AÇISINDAN KARġILAġTIRILMASI Aktuğ, Fatma Pelin Yüksek Lisans, ĠnĢaat Mühendisliği Bölümü Tez Yöneticisi: Prof. Dr. Talat Birgönül Ortak Tez Yön
FIDIC 2017 (RED BOOK) A BRIEF OVERVIEW AND COMPARISON WITH FIDIC 1999 PETER ATKINSON Partner HKA . DESCRIPTION GC FIDIC 1999 GC FIDIC 2017 Notices 1.3 Many instances where notice required 1.1.56, 1.3 Significant
In addition to the three contracts mentioned above, an updated FIDIC White Book to be applied for consultancy/advisory services was pub-lished in the spring of 2017. FIDIC also offers a wide variety of other standard contracts. We find that the FIDIC Yellow Book and the FIDIC Silver Book ar
FIDIC’s Contracts Committee has updated the FIDIC 1999 Suite of Contracts (Red Book, Yellow Book and Silver Book) and the Second . Edition 2017 of each of these three FIDIC contracts are being launched at this conference. In th
3 Documentele FIDIC 1999 10 3.1 Documentele FIDIC 1999 10 3.2 Alegerea între documentele FIDIC 11 4 Cartea roşie FIDIC 13 4.1 Introducere 13 4.2 Ghid FIDIC 13 4.3 Îndrumare Clauz ă – cu – Clauză pentru Condiţiil
FIDIC Short Form of Contract, the (Green Book) FIDIC Conditions of Contract (new edition) raised a higher requirement to the Parties concerned in the area of contract management. 2. Characteristics of FIDIC Conditions
contract for construction (FIDIC 99) when pricing a bid. The system should, in principle, estimate the cost impact of FIDIC 99 through estimation of responsibility and risk factors costs implied from FIDIC 99 clauses. Conditions of contract for construction (
FIDIC published a set of contract conditions for use by its members in construction works. One of FIDIC’s objectives is to “promote and enhance the leading position of FIDIC’s Forms of Contract”. The FIDIC Conditi
FIDIC best practice: using appropriate FIDIC Conditions of Contract Particular conditions development - risk allocation and how it should be tackled Moving from an adversarial approach towards full project ownership with clear delineations Victoria Peckett, Partner, Co-Head of Construction, CMS FIDIC Africa Contract Users' Conference
