International Construction Law Review
TESTING THE WATER—A NEW FIDIC SUBCONTRACT
EMMA KRATOCHVILOVA AND MICHAEL MENDELBLAT
Senior solicitor, Herbert Smith LLP, Tokyo
Solicitor, Professional Support Lawyer, Herbert Smith LLP, London
I. INTRODUCTION
In November 2009 FIDIC issued a test edition of a new set of Conditions of Subcontract for Construction for Building and Engineering Works Designed by the Employer (the “Test Edition”). The new standard form, once published, is intended to be recommended for use with the FIDIC Red Book 19991 and Pink Book 20052 (the “main contract”).
The first standard form subcontract produced by FIDIC was the FIDIC Conditions of Subcontract for Works of Civil Engineering Construction in 1994 (the “1994 Edition”) that was recommended for use with the then current 1987 edition of the Red Book.3 However, the Red Book 1999 was a very substantial redraft of the 1987 Edition and the lack of a corresponding subcontract form for use on an internationally recognised basis has for some time now been seen as a gap in FIDIC’s suite.
The new form of subcontract may of course vary from the Test Edition but it will be assumed for the purposes of this article that it will be published in substantially similar form.
- It is not uncommon for standard form producing bodies to publish subcontract conditions and a number of features can be seen to be common to such conditions:
- 1. The subcontract conditions will, so far as is possible, be ‘back-to-back’ with the main contract.
- 2. The subcontractor may be obliged to assume the duties and obligations of the contractor under the main contract so far as applicable.
- 3. There may be a condition that the subcontractor may only be
1 The FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, First Edition 1999.
2 The Multilateral Development Bank Harmonised Edition of the FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, 2005 (reissued 2010).
3 The FIDIC Conditions of Contract for Works of Civil Engineering Construction (Fourth Edition 1987, Reprinted 1992 with further amendments).
Pt 1] A New FIDIC Subcontract
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