한국에서 FIDIC 계약조건 적용과 관련된 법률적 문제점

FIDIC construction contract forms (“FIDIC Forms”) which have been most commonly used internationally are also being used in Korea. It would be ideal that an international standard contract form should not have different legal effects under the different governing laws. However, it is not the case in reality at all. FIDIC Forms was made from the domestic standard construction contract form, called Institute of Civil Engineer form to use for international construction projects, so that it has English legal characteristics. In this respect, it will be meaningful to know what kind of difference would come out where the FIDIC Forms are used under the Korean law as the governing law compared to the case where they are used under the English law. For example, some provisions of the FIDIC Forms might be invalid as against mandatory law of the governing law and some might have a different legal consequence from what the parties would have expected to have at the time of contracting. Sometimes even in case where the governing law of the FIDIC Form is not the Korean law, some mandatory laws of Korea are still applicable to the contract where the site is located in the territory of Korea. This is so called, “International Mandatory Law”. There also is an issue whether an interim award rendered by an arbitral tribunal to enforce non-final but binding DAB’s decision is enforceable in the jurisdiction of Korea. This article will address i) the fitness for the purpose obligation of the contractor ii) Force Majeure and fault principle iii) the contractor’s limit of liability iv) termination v) defect liability vi) engineer vii) unfair general terms and conditions act viii) title and transfer of risk xi) the binding force of DAB’s decision. I expect that this article will help foreign investors in Korea have a better understanding about what kind of consideration should be given into the FIDIC Forms when they are used in the jurisdiction of Korea. In addition, I hope this article would also make the contractors of Korea understand better importance of the governing law when they review their overseas construction contracts.