International Construction Law Review
THE DEVELOPMENT OF A CASE LAW IN CONSTRUCTION DISPUTES RELATING TO FIDIC CONTRACTS
CHRISTOPHER R SEPPÄLÄ
Partner, White & Case LLP, Paris
1. Introduction
Some of the reasons why the author has been requested to address the above topic at an international arbitration conference1 would appear to include the following:
- (1) disputes are endemic in the case of construction contracts;
- (2) the contracts published by the Federation Internationale des Ingé-nieurs-Conseils (FIDIC) are perhaps the most widely used standard forms of international construction contract;
- (3) since the first FIDIC standard form of construction contract was published in 1957, more than 50 years ago, they have provided for the final settlement of disputes under the Rules of Arbitration of the International Chamber of Commerce (the ICC); and
- (4) while international arbitral awards are not regularly or systematically reported, it is well known that a substantial number of ICC arbitrations have involved FIDIC contracts.
For these reasons, one may, very understandably, be led to suppose that if ever there was an area where an arbitration case law should have developed, it would be in relation to the FIDIC contracts.
But what are the facts? How many arbitral awards dealing with the various standard forms of FIDIC contract have been published? How many of the awards that deal with a FIDIC contract interpret that standard form in a way that can be of subsequent value as precedent? Can it be said that a case law relating to FIDIC contracts, made up of arbitral awards, has developed and is given weight by arbitral tribunals in their awards?
2. Awards interpreting FIDIC contracts
It is very difficult to know the exact number of arbitral awards that have been published dealing with the FIDIC contracts as, like other international
[2009
The International Construction Law Review
106