FIDIC 표준 약관의 해석과 관련한영국법 판례 동향에 관한 소고

This note discusses the impact of English court cases in respect of the interpretation of FIDIC forms of contract. In particular, we look at (a) the employer’s obligation to provide evidence of financial arrangements, (b) contractor’s obligations with respect to unforeseen site conditions, (c) limitations to the employer’s right to request remedy of contractual breaches, (d) the employer’s obligation to notify counterclaims and (e) the new law concerning damages. The heightened obligation of the employer to provide evidence of sufficient financial arrangements now requires both parties to understand ahead of time what customary evidentiary requirements are required by that jurisdiction. As to the contractor’s obligations with respect to site conditions, the contractor must now carefully assess the site conditions on its own account without being able to solely rely on employer’s information. With respect to the employer’s right to terminate, the employer must ensure that a termination is based on material breaches and sufficient time is provided to correct defects. The courts are now also requiring sufficient notice in respect of employer counterclaims in addition to contractor claims. Finally, courts are no longer assessing whether a damages clause is acting as a penalty but rather looks to whether the penalty provision has a commercial purpose.