국내기업의 FIDIC 이용실태와 유의사항

FIDIC (acronym for its French name Fédération Internationale des Ingénieurs Conseils, and its English name is International Federation of Consulting Engineers) produces various international standard forms of contract for construction projects based on the apportionment of risks between an employer and a contractor and the party which will bear the uncertain risks arising out of a construction project. Due to the use increase of the FIDIC contract terms by domestic construction companies, many studies on the terms of the FIDIC standard forms of contract already exist. However, most of the studies consist of the differences in the individual standard forms of contracts and matters to be considered with respect to the management of construction projects or the apportionment of risks, and the number of studies analyzing the legal issues of each of the clauses in the FIDIC contracts appears to be small. The purpose of this article is to examine the matters to be considered when the FIDIC standard forms of contracts are used by Korean construction companies. For such purpose, we have first examined which terms and conditions of the various available FIDIC standard forms of contract should be used based on the current status and use of the FIDIC standard forms of contract by the domestic construction companies, and have then examined the matters to be considered under each of the standard terms and conditions of the FIDIC contracts such as claim, force majeure, defect liability, etc. Moreover, we have sought to enhance the understanding of the FIDIC contracts by performing an analysis on how the FIDIC terms and conditions may be interpreted when such terms and conditions interact with the governing law and the law of the place of arbitration and by conducting a comparison of the relevant clauses in the construction contracts used in Korea and the FIDIC terms and conditions. Although the FIDIC standard terms and conditions are not necessarily directly used in international construction contracts, depending on the type of the construction project, there are a number of cases where the parties would conduct negotiations on the terms and conditions of a contract after selecting the appropriate FIDIC standard terms and conditions, and then to use a modified version of the relevant contract. As such, even if the FIDIC contracts are used, since the number of cases in which the standard terms and conditions are used in their as is and where is condition is small, the special conditions must be thoroughly reviewed. Further, as the governing law, the regulations of the country of construction and the regulations of the expected place of arbitration all interact with each other, such laws and regulations have an impact on the interpretation of the FIDIC contracts. Irrespective of whether the laws of a third country have been selected as the governing law, there may be cases in which the mandatory rules of the country of construction may be applicable even if such cases do not constitute exceptions under which certain provisions of the FIDIC are invalidated. Therefore, it would be desirable, if possible, to confirm with a local legal professional as to whether there exist any mandatory rules which may be in conflict with the FIDIC contracts in the country of construction even in cases where the governing law has been selected through a familiar method, by using the FIDIC standard terms and conditions.