Contract Users’ Newsletter ISSUE 11 December 2023
Published by the International Federation of Consulting Engineers (FIDIC)
www.fidic.org
World Bank renews and expands FIDIC contracts agreement
FIDIC renews major agreement with the World Bank that will see the global funding organisation use key FIDIC contracts for a further five years.
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IDIC has renewed and expanded a key agreement with the World Bank that means that the global funding organisation will adopt the use of nine FIDIC standard contracts for a further five years. Under the terms of the agreement, FIDIC has granted the World Bank a non-exclusive licence to refer to the nine major FIDIC contracts for projects they finance and the documents will be used as part of the bank’s standard bidding documents. The contracts include the 2017 Second Edition FIDIC contracts, as reprinted in 2022, which cover a wide range of international construction and infrastructure work. The World Bank’s move represents another key endorsement for the contracts from a major international funding organisation. FIDIC chief executive Dr Nelson Ogunshakin said: “We really value the strong relationship that has been forged between FIDIC and the World Bank over a number of years and we are delighted that the bank has agreed to adopt our FIDIC ‘rainbow’ suite of contracts and use them as a
key part of their standard bidding documents. The use of these contracts creates more certainty in the market as by adopting these contracts on major projects the World Bank is providing an endorsement of the fair and balanced approach that these documents offer to parties on major construction contracts. “The bank’s move, following a similar one by the European Bank for Reconstruction and Development in July this year, represents further major international market buy-in for our contracts -which includes our recent contract reprints and new editions. We hope this will also influence the supply chain to adopt FIDIC contracts to create even more certainty in the planning and delivery of major international
construction and infrastructure projects. “I look forward to continuing to build a stronger collaborative relationship with the World Bank team in the months and years ahead.” Commenting on the renewal of the bank’s agreement with FIDIC, Enzo De Laurentiis, chief procurement officer at the World Bank, said: “We look forward to continuing to build on the successful implementation thus far of the licence agreement for the 2017 Rainbow Suite and the very productive partnership with FIDIC over many years including in key areas such as sustainable procurement, contract management and capacity building.”
FIDIC’s CEO explains the significance of the recent agreement signed with the World Bank – see pages 8 and 9.
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Top-tier experts in dispute management, avoidance and resolution CMS is a future-facing law firm: we aim to give you an advantage today by anticipating your challenges of tomorrow. Our dedicated ICE Disputes Team focuses on resolving disputes arising in the Infrastructure, Construction and Energy sectors. For all your project advisory, risk management, litigation and alternative dispute resolution needs, you are in safe hands with us.
Key contacts at the conference Adrian Bell Partner // CMS UK Co-head of the Infrastructure, Construction and Energy (ICE) Disputes Group T +44 20 7367 3558 E adrian.bell@cms-cmno.com Emma Schaafsma Partner // CMS UK Infrastructure, Construction and Energy (ICE) Disputes T +44 20 7367 2316 E emma.schaafsma@cms-cmno.com
cms.law Issue 11 - December 2023
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Emerald Book reprint and new guide published
FIDIC has published a reprint of its Emerald Book form of contract for underground works and launched a new guide to its use.
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n a key development in the global construction contracts arena, FIDIC has published a reprint of its Emerald Book form of contract for underground works and launched a new guide to its use. With the full backing of the FIDIC contracts committee and the FIDIC board, the Emerald Book 2023 reprint and new guide have been published to take on board a number of comments and queries raised by users, which have given rise to further amendments to improve the use of the contract in practice so helping to keep the contract relevant and easy to use in a changing industry landscape. The new guide offers a comprehensive and practical overview of the FIDIC Emerald Book relevant positions and outlines key differences from the FIDIC Yellow Book, on which it is based. The Emerald Book is a joint initiative with ITA-AITES (the International Tunnelling and Underground Space Association. FIDIC CEO Dr Nelson Ogunshakin said: “The launch of the reprint and the new guide builds on last year’s reprints and guide to the FIDIC Rainbow Suite and is another significant development for FIDIC. We pride ourselves on providing the global engineering and construction sector with the contract documentation it needs to work smarter and
more efficiently and this newly launched reprint and guide has been updated and amended to take into account industry feedback.” The production of the reprint and guide were a significant undertaking for FIDIC and the organisation’s contracts committee and its task group, led by Hannes Ertl, played a key role in leading the initiative. FIDIC contracts committee chair Vincent Leloup said: “This Emerald Book reprint and guide have benefited from the skilled input of members of the FIDIC contracts committee, as well as feedback from other legal and contractual experts and users from across the contracts landscape.
FIDIC is recommending that all users of its Emerald Book contract should take note of the new amendments and improvements contained in the reprint and the guide. Licence organisations and institutions are also advised to reflect on the amendments and take the necessary steps to update their documentation as needed. The reprints and the guide are available from the FIDIC Bookshop on FIDIC’s website at fidic.org. Users of the FIDIC contracts who have any questions about the new reprints and the contracts guide are encouraged to contact FIDIC at fidic.pub@ fidic.org Issue 11 - December 2023
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Dispute avoidance gets boost with publication of new FIDIC guidance
NEW from FIDIC
New practice note highlights awareness of the dispute avoidance function of dispute boards for FIDIC contract users and adjudicators.
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IDIC has published a new practice note on the topical issue of dispute avoidance. The note, Dispute Avoidance - focusing on dispute boards, was launched during the Official FIDIC International Contract Users’ Conference 2023 held in London at the end of November. The new practice note highlights awareness of the dispute avoidance function of dispute boards for FIDIC contract users and adjudicators and ensures that best practice is adopted. Given that dispute avoidance is seen as critical when it comes to successful project delivery, the note has been welcomed by the industry and is set to be used widely. The note was produced following work undertaken by a FIDIC working group to prepare practical guidance on dispute avoidance. The working group consisted of Daduna Kokhreidze, general counsel at FIDIC and two members of the FIDIC President’s List of Approved Dispute Adjudicators, Yann Schneller, lawyer and partner at Cartier Meyniel Schneller and Taner Dedezade, barrister and partner at Howard Kennedy LLP. In gathering feedback for inclusion in the practice note, a number of key questions were put to all members of the FIDIC President’s List to canvass views on how dispute avoidance works in practice. The key questions posed Issue 11 - December 2023
were How/when does the dispute board make the parties aware of its dispute avoidance role? When should dispute avoidance ideally take place? Where should dispute avoidance take place? What matters most lend themselves to dispute avoidance? What are the most effective techniques for dispute avoidance? The working group considered the answers given to the questions and compiled the practice note based on the information received. Commenting on the launch of the practice note, FIDIC CEO Dr Nelson Ogunshakin said: “Avoiding disputes as early and as quickly as possible is in the best interests of all
parties to construction projects and FIDIC strongly recommends that all project stakeholders take on board and act on the content of the new practice note. “FIDIC is grateful for the important work of the FIDIC Dispute Avoidance and Adjudication Forum working group in preparing this practice note. Members of the forum are helping to ensure that FIDIC is able to keep abreast of the latest legal and contractual developments to keep the information we provide in this area as up to date and relevant as it can possibly be.” Click here to download the new FIDIC dispute avoidance practice note
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Last few places available on popular FIDIC contracts courses Places still available for two popular courses on the use of FDIC contracts.
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here are a few final places available for two popular FIDIC contracts courses run by the FIDIC Academy. The FIDIC Contracts Introductory Course, starting on 11 December 2023 and comprising nine two-hour weekly sessions, sets the foundation for understanding the methodology of FIDIC contracts, providing a comprehensive introduction to standard forms and procedures and analysis and comparison of the 2017 Second Editions of the Red and Yellow Books. This industry leading FIDIC online training course for rising engineers and other consulting professionals, which has been officially accredited by the CPD Certification Service, is aimed at providing systematic and practical guidance to anyone engaged in national and international projects. It will appeal to representatives of contractors, employers, developers, project sponsors and funders,
insurers, consulting engineers and architects, project managers and lawyers. Attendees will acquire knowledge on FIDIC’s history and its standard forms, and procedures, analysis of the FIDIC engineer’s dual role in the FIDIC contracts, recommendations on the adaptation of the FIDIC conditions of contract to the laws of the country and the specific project and a clause-by-clause analysis and comparison of the FIDIC standard forms for major works. The course is delivered via live online sessions and homework on casestudies and the trainers are leading FIDIC contracts experts Husni Madi & Robert Werth. There are also some places remaining for the
Specialised Workshop on FIDIC Contracts on 13 December 2023. This practical one-day workshop identifies numerous contractual issues that may arise during the execution of the FIDIC conditions of contract and provides attendees with an advanced knowledge and understanding of practical issues usually addressed when dealing with construction claims, through the insights and feedback from experienced FIDIC practitioners. The trainers, Husni Madi and Robert Werth, will present unique and specialised issues in the form of questions, exercises, and case studies for discussion between participants and the course tutors. The course will also
deal with questions that commonly arise but may have complex contractual interpretations. Due to the unique structure of the workshop, the hands-on knowledge that will be acquired by participants will be unrivalled by any other course as the workshop offers access to real life situations encountered by, and the practical experience of, international experts on FIDIC, so it’s an opportunity not to be missed. Click here for more information and to book places on the FIDIC Contracts Introductory Course. Click here for more information and to book places on the Specialised Workshop on FIDIC Contracts. Issue 11 - December 2023
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Construction & White & Case “Widely seen as a leading adviser globally on all aspects of project procurement and delivery under the FIDIC contracts” Legal or Professional Services Firm of the Year FIDIC Contract Awards 2020
whitecase.com/law/practices/construction
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ollowing the news that the World Bank has renewed a key agreement to use FIDIC standard contracts for a further five years, FIDIC CEO Dr Nelson Ogunshakin spoke about the significance of the bank’s move and what it means for the global engineering, construction and infrastructure sector. Why is it important for FIDIC to have a relationship with organisations like the World Bank? It is vitally important because the World Bank is an influential player in the global marketplace in which FIDIC operates and our longstanding and close relationship is a strength for both organisations and the industry that we represent. We have an open two-way dialogue with key officials at the World Bank and I know that they value that. Because of their fair and balanced approach, FIDIC contracts offer international funding organisations a much greater degree of certainty in their procurement and we are delighted that the bank is providing an endorsement of the fair and balanced approach that these documents offer to parties on major construction contracts. What does the agreement you have signed with the World Bank mean in practice? FIDIC has granted the World Bank a non-exclusive licence to refer to nine major FIDIC contracts for projects they finance and use the documents as part of the bank’s standard bidding documents. The contracts include the 2017 Second edition FIDIC contracts, as reprinted in 2022, which cover a wide range of international construction and infrastructure work. In practice, this means that a considerable proportion of the bank’s construction procurement will be carried out with reference to FIDIC contracts and this will benefit many stakeholders – the bank, parties to those contracts, the wider industry and of course end users. Issue 11 - December 2023
What are the benefits to the industry of using FIDIC contracts? In adopting these contacts on major projects the bank is providing an endorsement of the approach that these documents offer to parties on major construction contracts. That approach is a fair and balanced one, with due regard to an equitable allocation of risk and one which promotes good relationships between all parties to the contract. By having such major international market buy-in for our contracts - which also includes our recent contract reprints and new editions – we believe this will also influence the global supply chain to also adopt FIDIC contracts, thereby creating even more certainty in the planning and delivery of major international construction and infrastructure projects. It is also worth noting that World Bank funding brings in additional private sector funding and involvement,
leveraging in more money to the table to benefit both the industry and also end users. FIDIC contracts are highly regarded for their dispute avoidance provisions. Tell us about those. FIDIC contracts contain embedded dispute avoidance provisions, including requiring the use of standing dispute avoidance and adjudication boards (DAABs) for dealing with disputes should they arise. By following the guidance contained in the FIDIC contracts, the likelihood of a dispute escalating and ending up in arbitration is minimised and the approach we advocate always is dispute avoidance, where communication between the parties is crucial. FIDIC has also recently issued guidance in this area in the form of a practice note to highlight awareness of the dispute avoidance function of dispute boards for FIDIC contract users and adjudicators and to ensure
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“Our contracts are trusted as they promote the values clients want to see on their projects” FIDIC’s CEO Dr Nelson Ogunshakin explains the significance of the recent agreement signed with the World Bank that will see the global funding organisation adopt the use of nine FIDIC standard construction contracts for a further five years. that best practice is adopted going forward. The provisions around dispute avoidance contained in FIDIC contracts are helpful to all parties and foster good communication that all projects need, especially when difficulties or challenges arise. In addition, the FIDIC President’s List of Approved Dispute Adjudicators is also available for the industry to use when looking to identify a qualified adjudicator, where any party wishing to name or appoint an individual to act as adjudicator or member of a DB, DAB, DAAB or adjudicator can consult this list free of charge to decide who to name or appoint as member or adjudicator. Individuals on the President’s List have been specially assessed for inclusion and are suitably qualified individuals holding a valid FIDIC Certified Adjudicator (FCA) Certification issued by FIDIC’s independent credentialing body, FCL Ltd. How does the agreement with the World Bank benefit FIDIC’s member associations? The agreement means that the contracts that are being used on major bank-funded construction projects are underpinned by the key FIDIC principles of integrity, sustainability and quality – which are all principles that are held dear by our members associations and their member firms around the world. In countries where there are no statutory national guidelines around construction procurement, having the World Bank’s contracts underpinned by FIDIC values is a big benefit to those member associations operating in those countries as it is helping to influence the market in which construction projects take place. What about those organisations that do not work on World Bank projects? Is there any benefit to them from this agreement? The use of FIDIC contracts by such an influential
body as the World Bank creates an internationally acceptable standard for construction contracting and therefore influences the way that others work in this area. The FIDIC contracts are the best in class, tried and assessed, globally acceptable standards, widely used by most multinational clients investing in major infrastructure around the world. Their adoption by other organisations provides benefits and assurance to investors, insurers, financers and supply chains and helps to secure the bankability of the project. That is what we all want to see – quality, sustainable infrastructure that is facilitated by contracts which are fair and equitable to all parties. Why do you think that the World Bank and the other multilateral development banks value FIDIC contracts?
such as European Bank for Reconstruction and Development (EBRD), who signed a similar agreement earlier this year, are extremely influential organisations for our industry, as collectively they invest over $I90bn in infrastructure per year across the world. The fact that they use FIDIC contracts on their projects is really significant. Why do they use them and incorporate them in their standard bidding documents? I think it is because they trust them and know that these are documents that have been developed by the industry in consultation with clients, lawyers, contractors, engineers and funding organisations in such a way that they promote fairness and equity, which are all values that the MDBs want to promote in their contracting activity.
The World Bank and other multilateral development banks, Issue 11 - December 2023
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Winners unveiled in annual FIDIC Contract Users’ Awards Best practice on construction contracts is showcased, as the winners of FIDIC’s 2023 Contract Users’ Awards are announced.
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he winners of the 2023 FIDIC Contract Users’ Awards were announced at a high-profile awards ceremony in London on 28 November 2023. The awards, now in their fifth year, recognise excellence in the use of FIDIC contract forms for project delivery and showcase examples of good practice through collaboration from across the world. FIDIC has assembled a strong shortlist comprising a total of 12 projects, organisations, companies and individuals. The judging panel, chaired by international judge and arbitrator Sir Vivian Ramsey, had a difficult task choosing winners across a number of categories including Project of the Year, Client of the Year, Legal Firm of the Year and Trainer of the Year. From a global collection of entries, the judging panel, chaired by international judge and arbitrator Sir Vivian Ramsey, chose winners in a number of categories including Project of the Year, Client of the Year, Adjudicator of the Year, Trainer of the Year and Legal Firm of the Year. The winners were unveiled at a gala dinner event at the Leonardo Royal Hotel London City as part of the Official FIDIC International Contract Users’ Conference. Speaking at the event, the chair of the judging panel Sir Vivian Ramsey said: “These awards, open to the entire FIDIC contracts community, were very well supported again this year, with a number of categories receiving a record number of entries. It’s very heartening to see the diversity of entries too and this bodes well for the future of these awards which are now firmly established as a key part of the industry’s awards calendar.” Issue 11 - December 2023
Hinkley Point C New Build Nuclear Project in the United Kingdom
The judges were impressed by the rolling out of a very skilled and knowledgeable contract team over many years and also impressive contract preparation and management. The judges also noted the extensive training, guidance, use of CM software and drafting of innovations (ECI, collaboration provisions, etc) to FIDIC forms. A feature of the project contract was also early contractor involvement and statutory adjudication provisions were included. Combining FIDIC and NEC contracts showed that this huge project was keen to use a more bespoke approach tailored to specific requirements, while keeping the look and feel of FIDIC forms.
Highly Commended - Calawis 80 Million litres
per day Water Treatment Plant Project (Philippines). Merit Awards - HYRASIA ONE project (Kazakhstan) and The St Brieuc Offshore Windfarm in France.
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Manila Water Company from the Philippines
The judges were impressed by the fact that the client is a keen promoter of FIDIC contracts on multiple projects with a long history of using them to deliver a range of schemes that have improved the lives of thousands of people.
Highly Commended - Power Capital Renewable Energy from Ireland.
Cyril Chern from the United Kingdom
The winner has more than 40 years’ experience in the area of international infrastructure engineering and construction matters, including in the UK, Europe, the Middle East, Far East and the Americas. They have also written eight books dealing with FIDIC contracts and adjudication. One in particular is considered the ‘bible’ for dispute boards and next year sees its fifth edition published. Cyril Chern has dedicated his career to the practice of adjudication and his extraordinary experience has seen him established as an acknowledged expert in the construction and engineering adjudication, mediation and arbitration arena.
Highly Commended -
Roberto Hernandez Garcia from Mexico.
White & Case
The judges were greatly impressed by the winner who are an international firm with FIDIC expertise embedded within it with renowned FIDIC lawyers in their ranks. The firm has undertaken notable work on project delivery and DAB and it also has within its ranks two of the leading authors on FIDIC related legal issues and has an impressive global track record, with significant work across the world.
Highly Commended -
Bryan Cave Leighton Paisner LLP. Merit Awards - Dr Donald Charrett from Australia and LNP Beyond Legal from South Africa.
David Heslett and Marcus Theil of ECV Consultancy
The judges were impressed by these longstanding and well-established FIDIC trainers of more than 20 years who have demonstrated significant knowledge and enthusiasm for training on FIDIC forms. They are well known and well regarded across the industry for their training and have a long and distinguished track record which receives deserved recognition this year.
Highly Commended -
Nicholas Gould from the United Kingdom. Merit Awards - Nino Tsaturova from Georgia and Sarwono Hardjomuljadi from Indonesia.
Commenting on the awards, FIDIC CEO Dr Nelson Ogunshakin said: “Back in 2019 when we launched the awards, we did so with the aim of raising the profile of the use of FIDIC contracts and the community of users – engineers, contractors, funders, institutions, lawyers – and the ecosystem that surrounds them. I really believe that we are succeeding in that aim and this fifth year of the awards underlines that. I am delighted that we have brought together the global contract user community in person to celebrate excellence and good practice.” Issue 11 - December 2023
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Getting termination right under the FIDIC Second Edition contract FIDIC’s Second Edition contracts set out more detailed requirements for the service of notices which deserve close consideration by any party contemplating the giving of a termination. Adrian Bell of CMS considers the requirements and what they mean.
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ome recent English cases have also considered wording with similarities to the FIDIC Second Edition clauses on these points and which may therefore throw light on the English law approach to be taken to these clauses. Revised notice provisions under the FIDIC Second Edition In tandem with the updated grounds for termination, the notification provisions of the Second Edition have been strengthened. There is a new definition of “Notice” as “a written communication identified as a Notice and issued in accordance with Sub-Clause 1.3 [Notices and Other Communications].” Clause 1.3 has also been expanded to give rise to five new requirements for the giving of a notice. These new requirements raise the very real prospect that a Notice to Correct or subsequent Notice of Termination may not be served correctly. This may in turn call into question the validity of the termination and lead to counterclaims for wrongful termination. Where and how should termination notices be served? In the 2022 English case of Thomas Barnes & Sons Plc v Blackburn with Darwen BC, the court found that nothing less than strict compliance with the requirements of the service of notice provision would suffice for the purposes of a termination notice. Despite the clause not having been expressly drafted as a condition precedent, the court emphasised the contractual intention for more specific requirements to apply to such notices. Where FIDIC’s Second Edition sits in reference to this is a difficult question. Although the requirements of clause Issue 11 - December 2023
1.3 have been enlarged, the operative language is still that a Notice “shall” comply with the requirements of the clause. Language expressly imposing a condition precedent is therefore lacking. On the other hand, the introduction of a definition of “Notice” might be said to have this effect. As quoted above, the definition states that a “Notice” as defined is only one which is “issued in accordance with SubClause 1.3”. The termination rights provided by the Second Edition books can only be exercised by the giving of a “Notice”. If the purported notice which is sent does not comply with clause 1.3, it may be argued that it is not a “Notice” as
defined and that any right of termination has not been validly exercised. Who should serve the notice? Clause 1.3 now also stipulates certain persons who are required to sign or, for electronic transmission, send Notices under the Contract. If these requirements are conditions precedent for the reasons stated in the previous section, the signing or sending of a termination notice by other persons on behalf of the employer may not be valid. In addition to this requirement, the Second Edition Yellow and Red Books state specifically that the engineer is to give
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the Notice to Correct under clause 15.1. Similarly drafted termination provisions were considered by the English court in Struthers v Davies. The contract in that case required a “Contract Administrator” to serve an initial notice of default, which if not remedied could lead to a notice of termination served by the employer. The court found that termination clauses should be construed strictly and that whilst the language surrounding who serves the notice was not cast in mandatory terms or expressed as a condition precedent, there were “sound reasons for requiring the initial notice to come from the Contract Administrator rather than the client.” As the initial notice had instead come from the employer directly, both it and the subsequent attempt to terminate in reliance on the initial notice were invalid. When should the required notices be served? Also of importance is the new wording in clause 1.3 as to the time at which notices are to take effect. This is deemed to be the following day for electronic transmissions and the time of actual receipt for other modes of delivery. Where a notice of termination is being served, it is important that no action be taken in reliance on the notice (such as removing the contractor from the site) until it has taken effect. The contract considered in the Thomas Barnes case had similar provisions which deemed service on the second business day after posting. In addition to delivering the notice by hand to the contractor on site, the employer in that case sent a copy of the notice by email and by post. The employer then removed the contractor from site on the same day the notices were sent. Having determined that service by hand was ineffective, the court also found that the email notice was ineffective (email not being an effective method
of service). The notice sent by post was found to be effective but, in accordance with the deemed service provisions in clause 1.7.4, only took effect two business days after posting, being two business days after the employer had in fact removed the contractor from site. Conclusions and implications The English cases reported above highlight the care which is needed when seeking to administer the process of terminating a construction contract, particularly where more than one notice is required. The contractual process must be adhered to for each of the notices required, ensuring that service requirements, timings and the required notifying entity are all complied with. The consequences of failing to meet these requirements can be uncertain at best and nothing short of
disastrous at worst. Such cautionary tales are particularly apt to the revised notice and termination provisions of the FIDIC Second Edition contracts. No less than five new requirements for the giving of notices have been introduced into clause 1.3. The introduction of a new definition of “Notice” may also have the effect of making these requirements conditions precedent to a valid Notice – with the attendant risk of undermining any termination notice given in breach of the new requirements.
Adrian Bell is the co-head of the infrastructure, construction and energy disputes group and joint managing director for Asia and the Middle East at CMS. Issue 11 - December 2023
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Packed agenda of discussions at international contract users’ event There was a busy programme of debate and discussion at FIDIC’s recent International Contract Users’ Conference in London.
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IDIC’s annual International Contract Users’ Conference event in London on 28-29 November 2023 kicked off with a fireside chat discussion with Mark Wild, CEO of SGN, one of the UK’s largest gas distribution networks and the former CEO of Crossrail, Europe’s largest infrastructure programme. In conversation with FIDIC’s CEO Dr Nelson Ogunshakin, Wild made an impassioned plea for effective client leadership on mega-projects and said that their input was crucial in ensuring that the industry had certainty of work and a pipeline that enabled companies to plan for the future. The discussion with Wild was followed by a conference session on Opening the FIDIC contracts toolbox, where attendees looked at how FIDIC contracts have responded to current challenges, including the pandemic, rising inflation and global conflict and political uncertainty. A Going Underground session launched a reprint of the FIDIC Emerald Book and the publication of a new guide to its use and the afternoon sessions took an in-depth look at the global use of FIDIC contracts in the company of speakers from the International Fund for Agricultural Development, European Bank for Reconstruction and Development, the World Bank and Pinheiro Neto Advogados. The first day concluded with the opportunity to quiz members of the FIDIC contracts committee on their work and future plans for new and updated contracts. Day two saw more discussions on FIDIC contracts, including a progress report on the ongoing development of FIDIC contract net zero clauses and current work to develop FIDIC contracts for offshore windfarms, an area which was described by Pinsent Masons’ Rob Morson as one of the most potentially contentious in the industry today. Panellists also discussed collaborative contracting, brownfield infrastructure and public private partnerships. The conference also launched the new FIDIC Practice Note on Dispute Avoidance and delegates also discussed the always-popular issue of contracting and delivering Issue 11 - December 2023
mega-projects, through the experiences of those who have worked on them, either as project participants or professional advisers. Speakers in this session, which was chaired by FIDIC CEO Dr Nelson Ogunshakin, included Roberta Downey, head of construction at Vinson and Elkins, Mathias Fabich, general manager at PORR Group, Rene Santos, contracts manager at Manila Water and Steve Ovenden, head of legal at EDF Energy. EDF’s Steve Ovenden said that FIDIC represented “a hugely important part of our contracts toolbox” on the Hinkley Point C project in the UK. “We love using FIDIC contracts as they help with a quick turnaround in dealing with international partners and they also help to clarify issues around risk,” said Ovenden. FIDIC contracts also helps to deliver more continuity and consistency on Hinkley contracts he said. A further session hosted by Vincent Leloup, chair of the FIDIC contracts committee, looked at the
dispute avoidance features of FIDIC forms. Charles Blamire-Brown of Pinsent Masons said that dispute avoidance needed to play a much more prominent role on projects if they are to succeed in the future. Chris Corr of Built Intelligence said that, even on a human level, people were keen to avoid disputes and this needed to be considered by all parties on a project. So, more face-to-face meetings, more non-contractual communication and problem-solving activity can add a lot of value and save money, he said. The conference was rounded off with a session on Construction Arbitration and Case Law where the key aspects of FIDIC contracts for arbitrators were discussed. Summing up the conference, FIDIC president Catherine Karakatsanis said: “We are building a powerful community of users and events like this one will help our work in the legal and contractual arena no end,” she said.
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Official FIDIC International Contract Users’ Conference 2023 sponsors Strategic partner - Fenwick Elliott. Platinum sponsors CMS and White & Case. Gold sponsors - Pinsent Masons and Built Intelligence. “FIDIC contracts are helping users run better and more equitable projects and giving users the flexibility to address key challenges like economic and political uncertainty and the rising inflationary pressures that threaten to make construction projects more difficult to scope and indeed price going forward,” said Karakatsanis.
Dispute Avoidance and Adjudication Forum update The FIDIC Dispute Avoidance and Adjudication Forum, was held in London on 27 November 2023. The forum was led by comoderators John Papworth and Daduna Kokhreidze, focusing on enhancing dispute avoidance in the construction and engineering sectors. This pivotal event introduced a practice note on dispute avoidance focusing on dispute boards (DAABs), underscoring their role in project management and emphasising tasks such as fostering stakeholder trust and implementing effective dispute avoidance strategies. Key discussions included deliberations on the appointment of dispute board members, using DAABs alongside
statutory adjudication, use of dispute boards in subcontracts, managing difficult DAABs, and on dispute board decision writing. The forum also highlighted the importance of DAABs in achieving dispute avoidance and impartial, independent dispute resolution, balancing legal and engineering expertise, addressing language barriers and economic factors in board appointments. This forum represents a significant step in advancing dispute avoidance practices within these industries. The next forum is planned to take place in September 2024 in Geneva alongside FIDIC’s Global Infrastructure Conference. Issue 11 - December 2023
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CONTACT US Please send news, views and articles on FIDIC contracts to the newsletter editor Andy Walker at awalker@fidic.org
For contract order queries email FIDIC at fidic.pub@fidic.org
Send general FIDIC enquiries to fidic@fidic.org
Save the date for FIDIC’s 2024 Global Infrastructure Conference in Geneva
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t might seem a long time away, but FIDIC has already booked the venue for its annual Global Infrastructure Conference for next year. The 2024 FIDIC Global Infrastructure Conference will take place in Geneva at the President Wilson Hotel from 8-10 September 2024, so make sure you save the date now for this flagship event which will bring together representatives of the global engineering, construction and infrastructure sector to discuss the key issues facing the industry. Programme details for the event will be updated on the FIDIC website at the start of 2024 and be regularly updated thereafter.
Official FIDIC 2024 Regional Contract Users’ Conference for Asia Pacific Region
29-30 May 2024
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Join Online!
he Official FIDIC Regional Contract Users’ Conference takes place online on 29-30 May 2024 (to be confirmed). Attendees at the conference will get the lowdown on the latest state of play with FIDIC contracts that are being planned or under development and will also hear from leading contractual and legal experts from the Asia-Pacific region on current and emerging issues in the fast-changing world of global construction contracts and the use of FIDIC forms in the region.
FIDIC 2024 webinar programme offers something for everyone
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IDIC’s 2024 webinar programme includes a series of must-attend events covering a wide range of topics of interest to global consulting engineering and construction professionals. The 2024 programme builds on the success of FIDIC’s previous webinar series, which saw thousands of industry professionals from around the world attending its live webinar events.
FIDIC
2024
Webinar Programme
January to December 2024
Click here for more information about FIDIC’s webinar programme
OFFICIAL FIDIC INTERNATIONAL CONTRACT USERS’ CONFERENCES 2023 We are grateful to the sponsors of the Official FIDIC International and Regional Contract Users’ Conferences 2023, Fenwick Elliot (silver sponsor Regional and strategic partner International), CMS (platinum sponsor International), White & Case (platinum sponsor International), Pinsent Masons and Built Intelligence (gold sponsor International).
