International Construction Law Review
THE ENGINEER IN INTERNATIONAL CONSTRUCTION: AGENT? MEDIATOR? ADJUDICATOR?
OLA Ø NISJA
Cand jur. (University of Oslo), LL M (King’s College, London) Associate in the Construction and Litigation Groups Wikborg Ren, Oslo
I. INTRODUCTION
1.1 The 1999 Edition of the FIDIC Red Book
International construction is construction with an international aspect. The typical project under the FIDIC Red Book is the construction and development of infrastructure in Africa, South America and Asia, but it could be anywhere in the world. The 1999 Edition of the FIDIC Red Book,1
an agreed document and the most commonly used standard form for these types of contracts, sets out in sub-clause 3.5:
“Whenever these Conditions provide that the Engineer shall proceed in accordance with this Sub-Clause 3.5 to agree or determine any matter, the Engineer shall consult with each Party in an endeavour to reach agreement. If agreement is not achieved, the Engineer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances.”
At least two important points can be drawn from this; “the Engineer” is both to “endeavour to reach agreement” between the parties to the contract and if no such agreement is reached, to “make a fair determination”. The employer wants to have something built, and hires the contractor to do the job. Under this form of contract, the employer is the one designing the project.2
But who is this engineer? A definition is found in sub-clause 1.1.2.4:
“the person appointed by the Employer to act as the Engineer for the purposes of the Contract and named in the Appendix to Tender, or other person appointed from time to time by the Employer and notified to the Contractor under Sub-Clause 3.5.”3
The engineer works for the employer—he is appointed by the employer,
1 Conditions of Contract for Construction, for Building and Engineering Works Designed by the Employer (1999 Edition), published by FIDIC, Fédération Internationale des Ingénieurs-Conseils/ International Federation of Consulting Engineers. For more information about FIDIC, see http://www.fidic.org/
2 As a main rule, anyway, contrast sub-cl. 4.1 first paragraph. See M Beth Lyon, “The Role of the Consulting Engineer in Developing Country Construction under the FIDIC Form Contract”, 26 Law & Policy in International Business
273 (hereafter Lyon), pp. 281–282. If the contractor takes on all or most of the design, we are talking about design-build or EPC contracts, often regulated by the FIDIC Silver or Yellow/Orange Books.
3 In sub-cl. 1.1.2.6 the engineer is included in the definition of “Employer’s Personnel”. See also sub-cl. 3.1.
Pt 2]
The Engineer in International Construction
231