Much has been said about the new Red, Yellow and Silver Books 2nd Editions launched by FIDIC in December last year. The most obvious comment has been about their size, almost 50,000 words, which is some 60% longer than the 1999 forms.
Although the 1999 forms were not perfect, most regular users seem to be agreed that they did not need 20,000 words to fix the issues. This consensus led this author to attempt to cherry-pick the good bits from the 2017 forms and to propose amendments to add the good ideas to the 1999 forms. The amendments apply to all three forms unless it is indicated otherwise.
“Exceptional Events” has replaced “Force Majeure” and the provision is now clause 18 rather than clause 19 but otherwise little has changed. FIDIC appear to have decided that the term “force majeure” brought with it too much baggage for those using it in civil law jurisdictions. Many users have pre-conceptions about what force majeure is and is not and perhaps did not consider what FIDIC meant by the term. With the new term, users should approach the provision with a more open mind.
The Contractor must now prepare a detailed test programme with timing and resources.
The Engineer reviews it and the result is a NONO, deemed or actual, which permits the tests to begin. This should help to remove some of the uncertainties that often can surround tests on completion.
Clause 9.2 deals with delayed tests, whether the delays are caused by the Employer or Contractor. If the tests are “unduly delayed” by the Employer or Engineer or by a cause for which the Employer is responsible, it says clause 10.3 “shall apply”.
Clause 2 now has 6 sub-clauses:
Employer’s claims has been removed to clause 20; and new provisions 2.5 [Site Data and Items of Reference] and 2.6 [Employer-Supplied Materials and Employer’s Equipment] have been added.
The obligations to provide possession, access and assistance with permits etc. are essentially the same, as are the consequences of failure to do so.
The main change to clause 2.4 [Employer’s Financial Arrangements] is that the Employer now sets out his arrangements in the Contract Data; and the Contractor can only request evidence of ability to pay if those arrangements change, there is non-payment or there are variations in excess of 30% or a single variation over 10%.
In London last week, FIDIC launched its Second Editions of the Red, Yellow and Silver Books. They are big, weighing in at almost a kilo each. The general conditions cover 106 pages with more than 50,000 words, over 50% longer than the 1999 forms.
Many improvements have been made, addressing issues that have emerged since 1999. Fans of Dispute Boards will be pleased to see that all three books now have standing boards with more emphasis on dispute avoidance; and that appointment of DB members and enforcement of their decisions have been made easier. Disputes and Arbitration are now dealt with in a separate chapter 21.
Here are the most interesting changes to the Yellow Book.
The Judgment of Sir Robert Akenhead has been upheld and OHL’s appeals have been dismissed. The judgment was a rare excursion by the TCC into the FIDIC contract and considered unforeseen ground conditions, termination and notice under cl.20.1. Corbett & Co. acted for the Government of Gibraltar.
Rumour reaches us that the Multilateral Development Banks (MDBs) behind the Pink Book, FIDIC’s harmonised version of the 1999 Red Book, will discontinue the experiment. Should we be sorry to see the back of the Pink Book? We think not.
FIDIC 4th A PRACTICAL LEGAL GUIDE Edward Corbett is the author of the leading practical legal guide to the International Civil Engineering Conditions, as well as a Supplement addressing the 1992 amendments.
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