International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
This issue contains a variety of contributions. We start (at page 252) with a most interesting review of a subject that has not been covered before (or at least not covered properly). The authors, Philip Loots and Nick Henchie are well known, the former for his contributions to South African law and the latter as a partner of Mayer Brown Rowe & Maw and a regular writer for us. Their subject is the EPCM contract—a somewhat awkward acronym for “Engineering Procurement Construction Management”, especially since an EPCM contract is not in fact an extension of an EPC contract but is more related to a consultants’ contract or a construction management contract. Such arrangements are becoming increasingly popular, as the writers point out, particularly for international infrastructure and major construction work in the petrol, chemical and mining sectors and for power and desalination. In their article Phil Loots and Nick Henchie first consider the position of the participants which leads to questions about responsibility for design under the heading “Front-End Engineering and Design (FEED)”. They then turn to the essential nature of the EPCM contract and how it differs from other arrangements with a detailed examination of the services to be performed under such contracts including, importantly, control of costs and time—topics which are not always as well treated in such contracts as they should be. The authors then continue with the corollaries, namely, liabilities and their extent, questions of insurance and the impact of net contribution clauses. In their conclusion they weigh up the advantages and disadvantages of both EPC and EPCM arrangements.
The next article is also as topical and instructive as the first article. Dr Götz-Sebastian Hök has recently been asked to provide a translation into French of the FIDIC Standard Contract. We were delighted to accept his offer to write on “Difficulties Encountered in the English-French Translation of the FIDIC’s Standard Form Contracts” (at page 271). Dr Hök’s work has revealed the problems that derive from drafting or redrafting a contract based upon an English common law model (e.g., the ICE Conditions) which, although now temporally remote, nevertheless still cast a shadow over the latest FIDIC contracts even though they have been very substantially recast and revamped. The techniques of drafting of contracts used in common law jurisdictions also create problems since rights, liabilities and their consequences tend to be spelled out. Indeed, as Dr Hök points out, the very word “claim” is not easily translated into French in a form that might be recognised by a French court or arbitral tribunal that had not sufficient experience of the FIDIC forms. Dr Hök’s work draws attention to the need for any form of international contract that is likely to be translated to be drafted with a view, as it were, to translation. His work also calls into question some of the assumptions that are, understandably, taken for granted by those familiar with forms of contract such as the FIDIC forms.
[2007
The International Construction Law Review
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