International Construction Law Review
LETTERS TO THE EDITORS
Dear Sirs:
In an article entitled “FIDIC’s 1999 Editions of Conditions of Contract for ‘Plant and Design-Build’ And ‘
EPC Turnkey Contract’. Is The ‘DAB’ Still a Star?”,
which appeared in your January 2000 issue, Mr Gordon Jaynes criticizes FIDIC because the new Yellow and Silver Books (as he calls them1
) do not provide in their respective General Conditions for a Dispute Adjudication Board (“DAB”) to be established at the outset of the contract (this type of DAB being referred to as a permanent or standing DAB). Instead, the General Conditions provide for a DAB which would only be constituted if and when a dispute or disputes arise and which would normally cease to operate once a decision on the dispute or disputes had been issued (this type of DAB being referred to as an ad hoc
DAB). On the other hand, the “Guidance for the Preparation of Particular Conditions”
of the new Yellow and Silver Books provides that:
“…for certain types of project, particularly those involving extensive work on Site, where it would be appropriate for the DAB to visit Site on a regular basis, it may be decided to retain the services of a permanent DAB. In this case, [the relevant provisions of the] General Conditions, and the Dispute Adjudication Agreement, should be amended to comply with the corresponding wording contained in the FIDIC’s “Conditions of Contract for Construction”
[the new Red Book].”
As Mr Jaynes notes, the permanent DAB continues to be provided for in the General Conditions of the new Red Book. In particular, Mr Jaynes states that:
- “1. no explanation for this ‘script revision’ (as compared to the 1998 Test Editions of the new Books) has been given publicly yet by FIDIC, and
- 2. based on discussions ‘among various persons’, some possible explanations had been suggested as reasons for this change, which Mr Jaynes then discusses, seeking to refute each one of them.”
He then concludes by stating that:
“Obviously, the reader who uses the new Yellow or Silver Books is urged to try to establish the DAB at the outset of the contract…” (page 46)
As Legal Advisor to the FIDIC Task Group responsible for preparing the new editions, and as an advocate of this change from the Test Editions, I would like briefly to respond to Mr Jaynes by this letter.
Mr Jaynes is mistaken when he states that no explanation to this “script revision” has been given publicly yet by FIDIC. I gave an explanation of why this change from the Test Editions was made at public conferences organized by FIDIC to introduce the new editions in The Hague in September 1999 and
[2000
The International Construction Law Review
466