International Construction Law Review
LIGHT AT THE END OF THE TUNNEL? GIBRALTAR DISPUTE REVIEWS KEY FIDIC YELLOW BOOK PROVISIONS
VICTORIA TYSON
Director, Corbett & Co International Construction Lawyers Ltd, London
INTRODUCTION
As disputes under the FIDIC forms of contract are normally resolved in private Dispute Adjudication Board (“DAB”) proceedings or confidential arbitration proceedings, reported FIDIC cases are rare and often of considerable precedential value either formally or informally. This article considers one such recent decision which was transferred from the Gibraltar courts specified in the particular conditions of the contract (in lieu of arbitration) to the more specialised Technology and Construction Court of England and Wales by the agreement of the parties during the pre-action protocol process.
The case was Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar
1 and concerned a dispute arising out of a £30 million contract for design and construction work to the Gibraltar Airport (“the contract”). The contract incorporated the FIDIC Conditions of Contract for Plant and Design Build for Electrical and Mechanical Plant, and for Building and Engineering Works, designed by the Contractor, 1st Edition 1999, commonly known as the Yellow Book.
Under the current arrangements, the road to the Spanish border (the Winston Churchill Avenue) traverses the airport runway so that the road must be closed when the runway is in use. In an attempt to relieve the congestion caused by the frequent closure of this road, the works included the construction of a new dual carriageway road and a twin bore tunnel under the eastern end of the airport runway, known as the Frontier Access Road.
The contract was entered into in November 2008 and works commenced in December 2008. After over two-and-a-half years of work on the two-year project, when little more than 25% of the work had been done, the contract was terminated. The large Spanish civil engineering company
1 Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC); [2014] BLR 484.
The International Construction Law Review [2014
506