Part I of the excellent article by Christopher Seppala in which he explains the thinking behind clauses 17 to 19 of FIDIC’s new suite of contracts, published in ICLR April 2000,1 prompts me to respond with a critique of these two clauses and must, by necessity, include the related Insurance Clause sandwiched between them. Mr Seppala explains lucidly the changes made in the FIDIC forms, which led to the new forms and how the new clauses 17 to 19 differ from their equivalent provisions in FIDIC’s old Red, Yellow and Orange Books. In this article I attempt to highlight the shortcomings and problems in these new clauses and outline what, in my view, should have been the text of these three clauses.

Although this clause of FIDIC’s new suite of contracts is entitled “Risk & Responsibility”, it encompasses other contractual provisions, including indemnities; limitation of liability and the unrelated topic of intellectual and industrial property rights. In fact, clause 17 starts from the wrong end of the stick, by dealing first with “indemnities” and then it somehow back tracks to deal with “responsibility”. It then takes a further leap backwards and returns to “risk” and finally marches on to “liability”. This illogical sequence hardly helps the non-lawyer professionals for whom these provisions are intended. The clause leaves even the expert in the field wondering about the purpose of this confused and baffling sequence.