“Relevant and impressive” users’ conference held online

The Official FIDIC Contract Users’ Conference (North America, Latin America and Caribbean time zone event) was staged online and delivered in-house by FIDIC from 25-28 May 2021.

The event, sponsored by global strategic partner, international law firm CMS, targeted the Latin America, Caribbean and North America contract users’ community and gave delegates a unique opportunity to share progress on the application and use of FIDIC contracts internationally and across the region. The event included participation from MDBs, private sector organisations and clients, government, engineers, contractors, investors, consultants, and other stakeholders who have an interest in FIDIC contracts.

The North America, Latin America and Caribbean time zone event was the first Official FIDIC Contract Users’ Conference organised since FIDIC took the decision to take the running of the events in-house, following a holistic view of its existing events and conferences. Going forward, FIDIC plans to ensure that the voice of the FIDIC contracts community is heard and amplified and as a result provide an even better service to its stakeholders.

Introducing the event, FIDIC president Bill Howard highlighted the importance of using FIDIC contracts in an unamended format and adhering to its ‘Golden Principles’ to guard against problems arising on projects. Opening the first session of the conference, FIDIC president elect Anthony Barry spoke about the important role of the FIDIC contracts committee in developing this key area of the organisation’s business and supporting the construction and infrastructure sector.

“Our contracts do not stand alone in the industry – they are backed up by many other documents and approaches, including the FIDIC Body of Knowledge, and are part of a whole ecosystem that is integrated in such a way that supports all those that use them across our industry,” said Barry.

The breadth of FIDIC contracts’ use across the global industry was indicated by the number of translations in circulation, said Barry, who also highlighted the significance of the contracts being adopted and used by many of the international multilateral development banks. “FIDIC contracts can be used by developed and developing nations because of the eco-system we have in place to support their use,” he said. Barry also urged delegates to engage proactively with FIDIC to help influence the development of contracts and offer feedback on the work of the contracts committee to ensure that the organisation remained at the cutting edge of the global construction contract arena.

FIDIC contracts committee chair Vincent Leloup, spoke about the evolution of FIDIC contracts, highlighting new contracts in the pipeline, new initiatives and developments including the new FIDIC Green Book. He outlined some of the 14 clauses and key changes in the new FIDIC Short Form of Contract (Green Book) 2nd Edition, which is due to be published towards the end of 2021. Some of the changes in this new 2nd edition include the addition of ‘boilerplate’ clauses on intellectual property, confidentiality, limitation of liability, testing provisions, date of completion, performance certificates, claim and variations, employer’s risks and liquidated damages provision.

A key benefit of the Official FIDIC’s Contract Users’ Conferences is the opportunity to get the inside track on new documents in development and Leloup was able to update delegates on ongoing work on the FIDIC Bronze Book: Form of ODBO Contract for brownfield projects and other exciting new initiatives for 2021, including new contracts on Collaborative Contracting, PPP Projects and EPCM, all of which are scheduled for release at the end of 2021.

The four-day conference also looked at the impact of Covid 19 on infrastructure projects and the lessons to be learned. Christopher Seppala, special advisor to the FIDIC contracts committee, highlighted the implications of Covid-19 impacts in different jurisdictions, examining the issues from a civil law versus common law perspective and looked at the key lessons to be learned and how FIDIC contracts had addressed the Covid pandemic.

Day two of the conference focused on “Getting it right with FIDIC” and looked at why procurement matters, consultancy agreements and dispute resolution. Emma Schaafsma, a partner at international law firm CMS, spoke from her experience as a dispute lawyer, highlighting what sustainable procurement looks like and the optimal balance of risk. “Procurement is not just about price,” Schaafsma said. She highlighted the problem of contractors trying to recover costs by bidding low and then

seeking changes and claims thereafter. Clients should be wary of those that bid low, she said and spoke highly of FIDIC contract forms which had “evolved to reflect market practice and seek to allocate risk to the party most able to bear that risk”.

Elsewhere, day three and four of the conference were regional days highlighting the Latin America and USA, Canada and Caribbean use of FIDIC contracts by drawing on the experiences of keynote speakers and case studies from across the different regions. FIDIC board member and chief operating officer at Morrison Hershfield Group Catherine Karakatsanis, said that having attended various sessions throughout the four days of the conference, she had found the content “relevant, impressive and valuable”.

In-house production should ensure that the planning and delivery of future Contract Users’ Conferences will bring FIDIC much closer to the subjects under discussion and to the delegates. Barbara Chabloz, FIDIC’s head of conference and events, said: “We plan to improve the content and quality of these conferences by renewing, revamping and relaunching them. We will put FIDIC’s contract users back at the centre of these events, listen to them and what they want to learn about and give a wider range of speakers the opportunity to share their regional experiences of using FIDIC contracts.”