International Construction Law Review
THE SILVER BOOK: AN UNFORTUNATE SHIFT FROM FIDIC’S TRADITION OF BEING EVENHANDED AND OF FOCUSING ON THE BEST INTERESTS OF THE PROJECT
A H GAEDE, JR
Partner and Chair of Executive Committee, Bradley Arant Rose & White LLP, Birmingham, Huntsville, and Montgomery, Alabama, USA, and Washington, DC
Edward Corbett, in a recent article for The International Construction Law Review,
observed:
“It is clear that the Silver Book [then in its Test Edition] will receive a rocky reception from some quarters and changes will no doubt be made to address the legitimate concerns being raised.”1
In this article, the author joins the “rocky chorus” and hopefully raises some legitimate concerns that will, in due course, be addressed by The International Federation of Consulting Engineers (FIDIC).
There have been sufficient articles that have commented on the common formatting developed for the new FIDIC forms.2
Also, there have been several articles which have addressed, in general, the relationship between the three design-build forms:3
the Orange Book,4
the new Yellow Book,5
and the brand new Silver Book.6
It is not the purpose of this article to rehash the common format and the relationship between the three forms.
For this article, the more important and unsettling common thrusts of the new FIDIC forms are the shifting of risks to the Contractor and the failure to focus on the best interests of the project. The shifting of risks is somewhat subtle in the new Red and Yellow Books, but is not at all subtle in the Silver
1 Corbett, “FIDIC’s New Rainbow—An Overview of the Red, Yellow, Silver and Green Test Editions”, ICLR (1999) Vol 16 Pt 1 39, 45.
2 See, e.g.
Corbett, supra note
1; Booen, “FIDIC’s Conditions of Contract for the Next Century: 1998 Test Editions,” ICLR (1999) Vol 16 Pt 1 5; Wade, “FIDIC’s Standard forms of Contract—Principles and Scope of the Four New Books,” ICLR (2000) Vol 17, Pt 2 253; Corbett, “FIDIC’s New Rainbow 1st Edition—An Advance?”.
3 See e.g.,
Huse and Hoyle, “FIDIC Design-Build, Turnkey and EPC Contracts,” ICLR (1999) Vol 16 Pt 1 27.
4 Conditions of Contract for Design-Build and Turnkey (First Ed. 1995). For an exhaustive discussion of the Orange Book, see Huse, Understanding and Negotiating Turnkey Contracts
(Sweet & Maxwell, 1997).
5 Conditions of Contract for Plant and Design-Build (For Electrical and Mechanical Plant, and For Building and Engineering Works, Designed by the Contractor) (First Ed. 1999). The nickname ‘Yellow Book” comes from the prior edition of Conditions for Electrical and Mechanical Works. FIDIC has determined to treat the 1999 edition as a first edition and not a continuation of the earlier form. The same is true for the so-called Red Book.
6 Conditions of Contract for EPC Turnkey Projects (First Ed. 1999).
[2000
The International Construction Law Review
478