개정된 2017 FIDIC 계약조건 소개 및 분석

In December 2017, FIDIC published the revised versions of its three major 1999 forms of contract. As this update was made 18 years after the release of its first edition, the changes are very far reaching. For example, with respect to the Yellow Book, the number of its provisions was increased from 20 to 21, while the pages of the General Conditions except for Appendix were increased by as many as 46 pages, i.e., from 63 to 109. A new provision was added because Clause 20 of the 1999 General Conditions which dealt with three issues, being claims, disputes and arbitration, was divided into two clauses, i.e., Clauses 20 and 21, under the revised 2017 General Conditions. Clause 20 only covers claims, while Clause 21 deals with both disputes and arbitration altogether. Further, it is notable that, while, under the 1999 General Conditions, Clauses 18 and 19 provided for insurance and force majeure, respectively, under the revised 2017 General Conditions of Contract, Clauses 18 and 19 provides for force majeure and insurance, respectively, thereby changing the order of clauses. Although the 2017 versions of General Conditions contain nearly the same number of clauses under the 1999 version, the substantial increase in length results from the expansion of the existing clauses, in which particular issues have been stipulated in a more accurate and precise manner than the 1999 General Conditions. For example, the length of Sub-Clause 20.1 of the previous version which provided for claims, was expanded by more than double in Clause 20 of the new version, while it was broken down into Sub-Clauses 20.2.1 through 20.2.7. Of course, the 2017 FIDIC General Conditions added new clauses, but they are not lengthy. Further, in its 2017 versions, FIDIC expanded the scope of application of its obligation clauses which were imposed unilaterally on the contractor under 1999 General Conditions to the employer. For example, while Sub-Clause 20.1 of the 1999 FIDIC General Conditions provides for the contractor’s loss of its entitlement (i.e., time bar) resulting from its failure to comply with a certain deadline for notifying claims thereunder, and the employer’s resultant discharge from all liability in connection with the claim, the Sub-Clause of the2017 FIDIC General Conditions imposes the same time bar clause on the employer as well. Although it might be a bit hasty to make a judgment about the updated 2017 FIDIC General Conditions, we may make a positive evaluation of the updated version in that the FIDIC set about trying to resolve the issues, whether big or small, which its users have encountered in the course of using the 1999 FIDIC General Conditions in the international construction industry market. Above all, I highly regard the updated 2017 FIDIC General Conditions since the FIDIC addresses procedural gaps and shortcomings of its previous version by more precisely setting out in its revised versions the provisions pertaining to the engineer’s agreement and determination, variations, claims and DAAB and further enables the engineer to disapply the time bar provisions, thus increasing the scope for resolving disputes between the parties as to the effectiveness of notices of claim. Nonetheless, however, there arises a question as to why the FIDIC required the claiming party to give a notice of fully detailed claim within a period of 84 days, stating that its failure renders the claim susceptible to being time-barred. Further, the procedures for filing of a claim appear to be too detailed that it would be difficult for the users to readily get themselves familiarized with the 2017 General Conditions. In my view, with respect to the DAAB procedures, there was a significant improvement in the updated 2017 General Conditions when compared with the 1999 General Conditions. However, I am doubtful whether it is desirable for the FIDIC to take DAAB as a “golden rule,” and further strongly recommend that the contractual parties should not, at their own discretion, preclude the DAAB, despite various outstanding issues such as the interruption of statute of limitation resulting from the reference of a dispute to the DAAB, the enforcement of interim arbitral award, its overlapping with statutory adjudication and the arbitral tribunal’s power and authority to hear the DAAB’s decision, which is not final but binding upon the parties. Last but not least, I would like to note that the FIDIC General Conditions are inevitably tinged with English law to some extent, as the first sets of FIDIC contracts were based on English law principles. However, given that it has been 60 years since the FIDIC General Conditions were first published and thereafter served to be the most frequently used international standard forms of construction contracts, the FIDIC General Conditions, by now, ought to have been transformed into a more international standard form of construction contracts, harmonizing the elements of Anglo-American and civil laws.