FIDIC 조건을 사용하는 국제건설계약의 준거법 결정과 그 실익

It is widely known that many Korean construction companies have won numerous overseas construction projects since the 1960’s, and it has been reported that the accumulated contract amount of the Korean construction companies all together reached 600 billion US Dollars in December, 2013. If Korea is truly a decent constitutional state, there should have been Korean lawyers whose prestige and reputation are widely acknowledged in the international construction community, which is apparently not the case at the moment. This is probably because the governing laws of the international construction contracts entered into by the Korean construction companies are frequently foreign laws, such as the laws of the state of construction site or English law. It is evident that in order to properly understand the rights and obligations of the parties and accurately assess the legal risks that either party bears, one must first know the contents of the relevant construction contract. In addition, one should know the law applicable to the construction contract and the contents of the applicable law. In this article, I explain principal terms and condition of the standard construction contract conditions drafted by the FIDIC (The International Federation of Consulting Engineers) and discusses various issues resulting from the determination of the law applicable to international construction contracts. In doing so, I will distinguish litigation on the one hand and arbitration on the other, because different choice of law rules are prevailing in litigation and arbitration. The most important principle is the principle of party autonomy in both litigation and arbitration; however, it should be remembered that in certain countries party autonomy is not allowed and parties are mandatorily required to apply the law of the country where the construction site is located. More concretely, I will discuss the following issues: first, the determination of the law applicable to international construction contracts in international litigation (Chapter Ⅱ); secondly, the determination of the law applicable to international construction contracts in international arbitration (Chapter Ⅲ); thirdly, the practical consequences from the determination of the law applicable to international construction contracts (Chapter Ⅳ); fourthly, the limit to party autonomy in international construction contracts; and finally, the internationally mandatory rules (Chapter Ⅴ). I hope that in the future Korean lawyers and practitioners will pay more attention to the various issues of international construction contracts and thereby will be able to accumulate more expertise on the international construction contracts. In this regard, I hope that the sub-committee on the international construction law established in September 2013 under the Korea International Trade Law Association could contribute to the future development of the international construction law in Korea.