Comparison of FIDIC conditions of contract (1999) and UNCITAL legal guide from prospective disputes and claims perspectives

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2012
Aktuğ, Fatma Pelin
In 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 enable a 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 of Consulting Engineers (FIDIC), Institution of Civil Engineers in the United Kingdom (ICE), The Engineers Joint Contract Documents Committee (EJCDC) or United Nations Commission on International Trade Law (UNCITRAL). It is the contract; where work is detailed, responsibilities are assigned, the consequences of not fulfilling those responsibilities are defined, the procedure through which the execution of responsibilities to be enforced are construed, the procedure for dispute settlement is specified; the monetary issues find its place. Therefore, contract is the key document parties should work on carefully before agreeing on. It is also the key document on which, at the first instance, the parties would always refer to during the execution of the works, as well during the guarantee period. Contract, being the essential factor in execution of Works, should be drafted and followed with care. Among the standard contracts, one of the documents produced by FIDIC aims to set a common ground for construction contracts where design is done by the Employer. This was mainly known as “Red Book”, which is updated as Conditions Of Contract For Construction For Building And Engineering Works Designed By The Employer, First Edition 1999. From now on, it will be shortly referred as FIDIC Conditions of Contract. It is as well known as one of the most common international document by many Contractors working in Europe or Contractor working for Europe based Employers or with Europe based Consultants. On the other hand, the Working Group on the New International Economic Order of UNCITRAL, which is composed of 36 members of UNCITRAL, bearing in mind the extensive development in international trade, has worked on principles to guide the contracting parties for construction of industrial works. The outcome, UNCITRAL Legal Guide on Drawing up International Contracts for the Construction of Industrial Works, is published in 1988. The document will be shortly referred as UNCITRAL Guide throughout the thesis. Although latter is aimed for construction of industrial works specifically, studying it by inductive reasoning, the aim is to analyze FIDIC Conditions of Contract under the guidance of UNCITRAL Guide. The comparative analysis does not cover each and every area pointed out in UNCITRAL Guide, but focuses on the issues which in common, lead to a claim. In the context of the comparison reference to some local practices is drawn highlighting the importance of selection of law for the execution of the contract.
Citation Formats
F. P. Aktuğ, “Comparison of FIDIC conditions of contract (1999) and UNCITAL legal guide from prospective disputes and claims perspectives,” M.S. - Master of Science, 2012.