International Construction Law Review
FIDIC’s 1999 EDITIONS OF CONDITIONS OF CONTRACT FOR “PLANT AND DESIGN-BUILD” AND “EPC TURNKEY CONTRACT”: IS THE “DAB” STILL A STAR?
GORDON L JAYNES
Whitman Breed Abbott & Morgan
To borrow, and amend, the title of a well-known musical, “A Funny Thing Happened on the Way to these First Editions”! To continue theatre terminology, the scripts of these First Editions were given last-minute rewrites, in which the role of the Dispute Adjudication Board (DAB) was cut heavily.
The DAB first appeared on the FIDIC stage in 1995, in the “Orange Book” (Conditions of Contract for Design-Build and Turnkey). Subsequently, DAB provisions were added, by Supplements, to the Red Book (Conditions of Contract for Works of Civil Engineering Construction) and the Yellow Book (Conditions of Contract for Electrical and Mechanical Works).
The DAB thereafter played its usual role in the three 1998 Test Editions of FIDIC’s new Red, Yellow, and Silver Books. Those Test Editions were the subject of learned comment in, inter alia,
the January 1999 issue of ICLR. The principal drafter of these three main documents presented an excellent introduction to them, in which he noted the DAB provisions.1
In the same issue, four other learned authors also presented comments and constructive criticisms of the new Books, but no criticisms were made of the Test Editions’ planned use of DABs for dispute resolution.2
It seemed that the stage was set for the usual role of DABs to feature in the 1999 production of the Red, Yellow, and Silver Books. However, when the curtains parted on the premiere, at FIDIC’s September 1999 Annual Conference, the scripts of both the Yellow and Silver Books had been changed and, surprisingly, in both the role of DABs was made optional.3
No explanation for this script revision has been given publicly yet by FIDIC, and it remains to be seen what, if anything, will be said when the FIDIC Guide
to these new Conditions is published.4
1 [1999] ICLR 5.
2 [1999] ICLR 27, 39 and 47.
3 The DAB keeps its star role, however, in the 1999 First Edition of the Conditions of Contract for Construction (the new Red Book).
4 From materials distributed at the launch to the 1999 editions, it appears that Peter Booen, principal drafter of the new major Books, is presently writing a Guide
to them. Apparently a single Guide
for the three books is planned.
Pt. 1]
FIDIC’s 1999 Editions of Conditions of Contract
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