FIDIC-A Guide for Practitioners [PDF]

The idea for this book was born out of the belief that the increasing dissemination of

FIDIC forms of contract throughout the Civil Law world requires a different

approach to the subject matter than that which is found under the Common Law.

An English native speaker will naturally not encounter many difficulties when

reading the FIDIC forms, although of course the wording used will sometimes be

subject to interpretation. Again an English native speaker will usually be familiar

with the underlying legal principles, which mostly derive from Common Law,

despite the fact that some Civil Law-inspired features have been incorporated in

the FIDIC books. Thus there is a clear need to explain Common Law concepts and

legal terms in the context of Civil Law. This may often prove to be difficult as the

very nature of Civil Law language is in many respects different from Common Law

language. Both systems have terms which are often difficult to translate literally

because of the fact that the terms reflect legal concepts which are unknown in the

other legal world.

Although many difficulties in understanding the wording may be overcome if the

terms and concepts are carefully explained, the English wording may sometimes be

in direct contradiction to Civil Law concepts and practice. Whether the FIDIC

wording will then prevail depends on the strength of the pacta sunt servanda

principle. Civil Law systems usually determine and categorise the very nature of

a contract. If the contract falls within the limits of a nominated contract, the relevant

default rules (lois supple´tives, dispositives Recht) and additionally the relevant

mandatory rules will apply. Whether the FIDIC based contract will be recognized

as an agreement sui generis or at least as a valid agreement although being in

contradiction to the law must be ascertained on a case by case basis

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