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FIDIC Forms of Contract

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ISBN-10: 1405120312

ISBN-13: 9781405120319

Edition: 3rd 2005 (Revised)

Authors: Nael G. Bunni

List price: $240.00
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In September 1999, FIDIC introduced its new Suite of Contracts, which included a "new" Red, Yellow, Silver and Green forms of contract. The "new" Red Book was intended to replace the 1992 fourth edition of the Red Book, with the ambition that its use would cease with time. This ambition has not materialised and is unlikely to do so in the future. Despite the importance of the 1999 Forms, there has been very little published on the new concepts adopted in them and how they interact with the previous forms. This important work considers these aspects together with the many developments affecting the fourth edition of the Red Book that have taken place since 1997, when the second edition of…    
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Book details

List price: $240.00
Edition: 3rd
Copyright year: 2005
Publisher: John Wiley & Sons, Incorporated
Publication date: 6/17/2005
Binding: Hardcover
Pages: 872
Size: 7.25" wide x 10.25" long x 1.75" tall
Weight: 4.092
Language: English

Background and Concepts of the Red Book;
Background of the Red Book
The ACE Form
The First Edition of the Red Book
The Second and Third Editions of the Red Book
The Fourth Edition of the Red Book
The 1996 Supplement to the Red Book
Concepts of the Red Book
The New Suite of FIDIC Contracts
The Red Book is based on a domestic contract
Diversity of legal systems
The applicable law in international construction
The applicable law of the contract
Law governing procedure
Law governing enforcement of awards
Grouping of the contemporary legal systems
The Romano-Germanic group
Sources of law in the Romano-Germanic group
Legal authoritative writing
Areas of the law affecting construction in the Romano-Germanic group
The common law group
Sources of law in the common law group
Areas of the law affecting construction in the common law group
The law in Islamic countries
Sources of Islamic law
Legal concepts based on the common law system
The law applicable to the contract
Some specific concepts under the common law
Substantive law and procedural law
Legislation, common law and equity
Contract � general principles
Prerequisites of a contract
Limitation periods
Privity of contract
Performance of a contract
The contents of a contract
Remedies for breach of contract
Exclusion clauses
The responsibility to complete
Drafting principles
The concept of a trusted independent engineer
FIDIC's Statutes and By-Laws and the independent engineer
FIDIC's Code of Ethics
FIDIC's Quality-Based Selection, 'QBS'
Other suppliers of consulting services
Services provided by the consulting engineer
Counselling services
Pre-investment studies
Design, preparation of documents and supervision
Specialised design and development services
Project management
Programme manager
A traditional re-measurement contract
Factors governing choice of contract
The allocation of essential functions
The allocation of the function relating to finance
The allocation of the functions of design and construction
The allocation of risk, quality control and the method of pricing and payment
Re-measurement contracts
The Red Book is a re-measure contract
Contracts with a bill of quantities
Contracts with a schedule of rates
Cost-reimbursable contracts
Lump sum contracts
The Supplement to the Fourth Edition of the Red Book, Section B
Main Features of FIDIC's Form for Payment on a lump sum basis
Sharing of risks
The definition of 'risk'
Measurement of risk
Risk management
Allocation of risk and their management
Allocation of Risks in the Red Book
Responsibility and Liability
Indemnity and Insurance
The concepts in practice
The Red Book in use
Areas of conflict
A relationship of trust
The role of the engineer
Avoidance of risk
The design function
Absence of a legal system
Distrust of changes
Legal questions
EIC/FIDIC survey of 1996
A brief summary of Part I
The Fourth Edition: A Commentary
The revisions - purposes and consequences
Clause 1
Definition of 'Engineer' under group (a
Definition of 'tests on completion'
Definitions under group (e
Definitions under group (f
Definitions under group (g
Definition of 'approved'
Clause 2
Requirement for consultation
Responsibility for delegation
Requirement for writing
Express requirement for impartiality
Sub-clause 5.2
Sub-clauses 6.1, 6.4 and 65
Clause 7
Clause 8
Clause 10
Sub-clause 12.2
Clause 13
Sub-clauses 14.1 and 14.3
Clause 15
Clause 19
Clause 20
Clause 21
Clause 23
Clause 25
Clause 27
Clause 28
Clause 30
Clause 34 and 35
Sub-clause 36.5
Clause 37
Clause 40
Clause 41
Sub-clause 42.3
Clause 44
Clause 46
Clause 51
Sub-clause 52.3
Clause 53 and 54
Sub-clause 57.2
Clause 60
Sub-clauses 65.4 and 66.1
Clause 67
Clause 69
Other changes made in the 1992 Reprint
Concluding remarks
The Fourth Edition in Practice
Role of the engineer
The engineer as a designer
The engineer as the employer's agent
Authority and duties of the engineer
The engineer's proactive duties and authority
The engineer's reactive duties and authority
The engineer's passive duties and authorities
The engineer as a supervisor
The engineer as certifier
The engineer as adjudicator or quasi-arbitrator
Concluding remarks
Responsibility and liability of the engineer
Responsibility of the engineer towards the employer
Responsibility of the engineer towards the contractor
In the common law countries
In the Romano-Germanic system
The responsibility of the engineer towards third parties (other than the contractor
The responsibility of the engineer towards society; employees; and the engineer himself
Liability in construction
Levels of Liability
The employer's obligations
Identification of specific elements of the project
Appointment of engineer
Possession of site
To provide instructions as and when they are required
The employer is to refrain from taking any action which would impede or interfere with the progress of the works
The employer if to supply materials and carry out works if these form part of the work as defined in the contract
The employer is to nominate specialist sub-contractors and suppliers as and when they are required
To permit the contractor to carry out the whole of the works
To make payments and to make them on time
Additional obligations for the employer under the Fourth Edition of the Red Book
The contractor's obligations
The contractor's obligations during the tendering stage
The contractor's obligations following the letter of acceptance and during the construction stage up to substantial completion
Finalising documentation required prior to commencement of the works
Construction and completion of the works with due diligence and within the time for completion
Use of materials, plant and workmanship
Provision of securities, indemnities and insurances
Supply of information, notices or alerts
Performance of certain administrative functions
Contractor�s obligations after substantial completion of the works
Risks, liabilities, indemnities and insurances
The Red Book provisions relating to risk, responsibility, liability, indemnity and insurance
Clause 20 of the Red Book � '20.1: care of the works'; '20.2: responsibility to rectify loss or damage'; '20.3: loss or damage due to employer's risks'; and '20.4: employer's risks'
Sub-clause 20.1: care of works
Sub-clause 20.2: responsibility to rectify loss or damage; and sub-clause 20.3: loss or damage due to employer's risks
Sub-clause 20.4: the employer's risks
Clause 65 of the Red Book (sub-clauses 65.1 to 65.8) � special risks
Clause 21 of the Red Book � insurance
Importance of adequacy of cover
Period of insurance and extent of cover
Joint names
Scope of insurance cover
Provisions for payment in foreign currency
Provision for deductibles
Clause 22 of the Red Book � indemnity for damage to persons and property other than the works
Clause 23 of the Red Book � third party insurance
Clause 24 of the Red Book � injury to workmen and insurance
Clause 25 of the Red Book � general insurance requirements
Part II of the Red Book � insurance arranged by the employer
Performance and other securities
The spectrum of securities
Types of securities
Characteristics of performance bonds and guarantees
Payment guarantees
Performance bonds
Demand guarantees
The ICC Uniform Rules for Demand Guarantees
Uniform Rules for Contract Bonds
Insurance against unfair calling
Performance securities under the Red Book
Examples of securities provided
Other securities associated with a construction contract
Bid bonds or guarantees
Advance payment guarantees
Retention money bonds
Maintenance or defects liability bonds
Company suretyship
Concluding remarks
Claims and counterclaims
Definition and legal basis of claims and counterclaims
Claim based on grounds of breach of contract
Measurement changes
Adverse physical obstructions or conditions
Employer's risks
Compliance with statutes, regulations, price fluctuations, currency and other economic causes
Defects and unfulfilled obligations
Failure to commence, delays, suspension of work, release from performance, default and termination
Other miscellaneous specified events
Claim based on grounds of breach of contract
Procedure for claims for additional payment � clause 53
Procedural steps
The presentation of claims
Heads of claim
The global approach
Failure to follow the claims procedure
Concluding remarks
Delay in completion and claims for extension of time
Time is of fundamental importance
Clauses 43, 44, 46, 47 and 48 of the Red Book
Relevant clauses of the Fourth Edition of the Red Book to an extension of time under Clause 44
Concurrent delays
Claims for both extension of time & money
Liquidated damages
Liquidated damages and penalties
The Society of Construction Law 'Delay and Disruption Protocol'
Certificates and payments
Interim payment certificates
Taking-over certificate
Defects liability certificate
Final payment certificate
The engineer is to certify a valuation at date of termination
Common requirements
Late certification
Disputes settlement by arbitration
Introduction and background
Advantages of arbitration
What is a dispute?
What is arbitration?
The arbitration agreement
Sources of law in arbitration
The arbitration agreement as a source of law
Practice and custom
The arbitrator
The arbitration agreement under clause 67 of the Red Book
Procedure under clause 67
The 1996 supplement to the Fourth Edition of the Red Book
The ICC Rules of Arbitration
The ICC Rules
The advantages of the ICC Rules
Some constructive criticism
Why does arbitration in construction disputes continue to lose favour?
Concluding remarks
Amicable settlement using alternative dispute resolution
Methods of dispute settlement
Direct negotiation
Distinguishing features of direct negotiation
When should negotiation be used and what are the steps?
What is conciliation?
Why conciliation?
When should conciliation be used?
Who should be a conciliator?
Who should attend the conciliation?
The conciliation process
Mini-trial procedure
Dispute board, dispute review board and dispute adjudication board
The ICC Rules for amicable dispute resolution
The rules
Fees and costs
General provisions
Pre-arbitral referee procedure
The ICC Rules for expertise
The Rules for expertise
Functions of the ICC Centre for Expertise
Concluding remarks
Other Documents Related to the Red Book
FIDIC�s other forms of contract
The Yellow Book, third edition
Differences in the nature of civil engineering and E & M engineering projects
Essential features of the Yellow Book
The Orange Book, first edition
Differences in the nature of the Red and Yellow Books on the one hand and the Orange Book on the other
The conditions of subcontract for works of civil engineering construction
Clause 1, definitions and interpretation
Clause 4, 'main contract'
Clause 13 and 15, 'indemnities; insurances'
Clause 16, 'payment'
Clause 19, 'settlement of disputes'
Other publications of FIDIC
The 1999 Red Book; The 1999 Yellow Book; The 1999 Silver Book; The 1999 Green Book; Dispute Boards
The 1999 FIDIC suite of contracts
Differences in format
Differences in concept
The 1999 Green Book
The 1999 Red Book
The 1999 Red Book: concepts and content
The 1999 Red Book: new concepts
Sub-clause 1.12: confidential details
Sub-clause 2.4: employer's financial arrangements
Sub-clause 2.5: employer's claims
Clause 3: the engineer
Sub-clause 4.1(c): fitness for purpose
Sub-clause 4.2: performance security
Sub-clause 4.12: unforeseeable physical conditions
Sub-clause 4.21: Progress reports
Sub-clause 13.2: value engineering
Sub-clause 14.7: payment
Sub-clause 14.8: delayed payment
Sub-clause 15.5: employer's entitlement to termination
Clause 17: risk and responsibility
Sub-clause 17.6: limitation of liability
Clause 18: insurance
Clause 19: force majeure
Clause 20: claims
Clause 20:Sub-clauses 20.2 to 20.4 � Appointment of the dispute adjudication board; failure to agree dispute adjudication board; and obtaining dispute adjudication Board's decision
Some highlights of the 1999 Red Book
Sub-clause cost
Clause 2: the employer
Clause 4: the contractor
Clause 6: Staff & Labour
Clause 7: Plant, Materials and workmanship
Clause 8: commencement, delays and suspension
Clause 9: tests on completion
Clause 10: employer's taking over
Clause 11: defects liability
Clause 12: measurement and evaluation
Clause 13: variations and adjustments
Clause 14: contract price and payment
Clause 15: Termination by employer
Clause 16: Suspension and termination by contractor
Clause 20: sub-clauses 20.7 � Failure to comply with dispute adjudication board's decision
Guidance for the preparation of particular conditions
The 1999 Yellow Book
Tendering under, and using, the 1999 Yellow Book
The 1999 Yellow Book: The employer's requirements
Sub-clause 'tests on completion'
Sub-clause 'tests after completion'
Sub-clause 'site'
Sub-clause definitions � 'valuation'
Sub-clause 1.5: general provisions � 'priority of documents'
Sub-clause 1.8: 'care and supply of documents'
Sub-clause 1.9: General provisions � 'errors in the employer's requirements'
Sub-clause 1.11: general provisions � 'contractor's use of employer's documents'
Sub-clause 1.13: general provisions � 'compliance with laws'
Sub-clause 2.1: the employer � 'right to access to the site'
Sub-clause 4.1: the contractor � 'contractor�s general obligations'
Sub-clause 4.6: The contractor � 'co-operation'
Sub-clause 4.7 'setting out'
Sub-clause4.18: the contractor � 'protection of the environment'
Sub-clause 4.19: the contractor � 'electricity, water and gas'
Sub-clause 4.20: the contractor � 'employer's equipment and free-issue material'
Sub-clause 5.1: design � 'general design obligations'
Sub-clause 5.2: Design - 'Contractor�s Documents'
Sub-clause 5.4: Design - 'Technical Standards and Regulations'
Sub-clause 5.5: Design - 'Training'
Sub-clause 5.6: Design - 'As-Built Documents�
Sub-clause 5.7: Design - 'Operation and Maintenance Manuals'
Sub-clause 6.1: Staff and Labour - 'Engagement of Staff and Labour'
Sub-clause 6.6: Staff and Labour - 'Facilities for Staff and Labour'
Sub-Clause 7.4 'Testing'
Sub-clause 7.8: Plant, Materials and Workmanship - 'Royalties'
Sub-clause 8.2 'Time for Completion'
Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'
Sub-clause 9.1: Tests on Completion - 'Contractor�s Obligations'
Sub-clause 10.2 'Taking Over of Parts of the Works'
Sub-clause 11.1 'Completion of Outstanding Works and Remedying Defects'
Sub-clause 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'
Comparison between the 1999 Yellow Book and the 1999 Red Book
Clause 1: General Provisions
Clause 3: The Engineer
Sub-clause 4.1: The Contractor- 'Contractor�s General Obligations'
Sub-clause 4.4 'Subcontractors', sub-clause 4.5 'Nominated Subcontractors' and sub-clause 4.6 'Co-operation'
Clause 5: Design
Sub-clause 7.5: Plant, Materials and Workmanship - 'Rejection'
Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'
Sub-clause 9.1: Tests on Completion � 'Contractor's Obligations'
Sub-clauses 11.2 and 11.6: Defects Liability � 'Cost of Remedying Defects and Further Tests' and 'Further Tests'
Clause 12: Tests after Completion
Sub-clauses 13.1; 13.2; and 13.3: Variations and Adjustments � 'Right to Vary', 'Value Engineering', and 'Variation Procedure'
Sub-clauses 14.1; 14.3; and 14.9: Contract Price and Payment � 'The Contract Price'; 'Application for Interim Payment Certificates' and 14.9 'Payment of Retention Money'
Sub-clause: 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'
Clause 20.2: Claims, Disputes and Arbitration � 'Appointment of the Dispute Adjudication Board'
The 1999 Silver Book
The 1999 Silver Book: The Shifted Risks
Sub-clause 3.1: The Employer�s Administration � 'The Employer�s Representative�
Sub-clause 3.5: The Employer's Administration - 'Determinations'
Sub-clause 4.7: The Contractor � 'Setting Out'
Sub-clause 4.12: The Contractor � 'Unforeseeable Difficulties'
Sub-clause 5.1: Design � 'General Design Obligations'
Sub-clause 5.8: Design � 'Design Error'
Sub-clause 8.4: Commencement, Delay and Suspension � 'Extension of Time for Completion'
Sub-clause 17.3: Risk and Responsibility � 'Employer�s Risks'
Sub-clause 20.1: Claims, Disputes and Arbitration � 'Contractor�s Claims'
The 1999 Silver Book: Concepts and Content
Clause 1: General Provisions
Clause 3: the Employer's Administration
Clause 4: The Contractor
Clause 5: Design
Clause 6: Staff and Labour
Clause 7: Plant, Materials and Workmanship
Clause 8: Commencement, Delays and Suspension
Clause 9: Tests on Completion
Clause 10: Employer's Taking Over
Clause 11: Defects Liability
Clause 12: Tests after Completion
Clause 13: Variations and Adjustments
Clause 14: Contract Price and Payment
Clause 15: Termination by Employer
Clause 16: Suspension and Termination by Contractor
Dispute Boards
Main advantages of the Dispute Board
Background & evolution
Types of Dispute Boards
Dispute review board
Dispute Adjudication Board
Combined Dispute Board
Varieties of Dispute Boards
Dispute Adjudication Boards under the FIDIC Contracts
The role of the Dispute Adjudication Board
Establishment of the Dispute Adjudication Board
Obligations of the Parties and the Members of the Dispute Adjudication Board
Powers of the Dispute Adjudication Board
Procedures relating to site visits & meetings
Procedures relating to referral of a matter to the Board for its opinion
Procedures relating to referral of a dispute to the Board for its decision
Remuneration of the members of the Dispute Adjudication Board
Cost of maintaining the members of the Dispute Adjudication Board
The decision of the Dispute Adjudication Board
Comparison between the text of the three 1999 Major Books: Red, Yellow and Silver Books
A precise record of the Alterations, Omissions and Additions in the 1999 Yellow & Silver Books as compared with the 1999 Red Book
Table of cases