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FIDIC EMERALD BOOK AND GEOTECHNICAL BASELINE REPORTS – DIGGING INTO THE USE OF GBRS IN UNDERGROUND WORKS

International Construction Law Review

FIDIC EMERALD BOOK AND GEOTECHNICAL BASELINE REPORTS – DIGGING INTO THE USE OF GBRS IN UNDERGROUND WORKS Frédéric Gillion, 1 Charles Blamire-Brown, 2 Rob Morson 3 and Ryan Frye 4 5 INTRODUCTION Discrepancies between the site conditions envisaged at the tender stage and those actually encountered often generate significant delays and costs overruns, particularly in respect of underground works. When combined with an often unclear allocation of contractual risk with regards to subsurface conditions, disputes tend to arise. Therefore, it is no surprise to see “ differing site conditions ” as a new leading cause of disputes in Continental Europe in Arcadis’ June 2019 report on “ Global Construction Disputes ”. 6 One way of bringing greater clarity to the allocation of risk in respect of subsurface conditions is to use geotechnical baseline reports (“GBRs”) to allocate this. Whilst GBRs have been commonly used in major underground works projects around the world, the risk of subsurface conditions is more typically dealt with by general concepts such as “unforeseeability”; what an experienced Contractor should have foreseen at tender stage. Without a more objective measure setting the parameters for what is or is not foreseeable (e.g. by reference to limits within a GBR), this leaves the matter open for interpretation and debate and in turn creates uncertainty. This has led to a number of court and arbitral decisions in which Contractors have been found to assume the risk for subsurface conditions outside the limits of certain geotechnical surveys provided at tender stage notwithstanding that in practice Contractors often price the risk of subsurface conditions based on these very limits. 7 1 Partner, Pinsent Masons LLP (Paris). 2 Partner, Pinsent Masons LLP (London). 3 Partner, Pinsent Masons LLP (Johannesburg). 4 Lawyer, Pinsent Masons LLP (Paris). 5 The views expressed herein are entirely those of the authors and not necessarily those of the firm or organisation with which they are affiliated. 6 Arcadis, “Global Construction Disputes Report 2019”, available at https://www.arcadis.com/en/united-states/our-perspectives/2019/global-construction-disputes-report-2019/ (last accessed 14 August 2019). 7 Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar (QBD (TCC)) [2014] EWHC 1028 (TCC); [2014] BLR 484, Van Oord UK Ltd v Allseas UK Ltd (QBD (TCC)) [2015] EWHC 3074 (TCC). Pt 4] FIDIC Emerald Book and Geotechnical Baseline Reports 507

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