International Construction Law Review
DISPUTE RESOLUTION UNDER THE FIDIC AND NEC CONDITIONS: PARADOX OF PHILOSOPHIES AND PROCEDURES?
Joseph Mante*
Lecturer, Law School, Robert Gordon University
(j.mante@rgu.ac.uk)
ABSTRACT
A careful reader of the philosophical underpinnings and the dispute resolution frameworks of the FIDIC and NEC Conditions of Contract will likely be baffled by the paradoxical relationship between the underpinning ethos of these forms and the approaches to dispute handling: the more traditional of the two sets of Conditions – the FIDIC forms – have more collaborative approaches to dispute resolution than the NEC Conditions which have collaboration as a central theme. This piece discusses this paradox. It sets out the theoretical contexts of these Conditions and examines how they shape dispute resolution expectations under the forms.
Key terms: Construction and Engineering contracts – Dispute resolution – International projects – Philosophical underpinnings
INTRODUCTION
Use of standard form contracts is customary practice in the construction industry. Sweet1 provides several reasons for this; familiarity, efficiency and the availability of precedents on interpretation of relevant terms.2 In the context of international construction, two sets of forms stand out,3 the
*LLB, LLM, PhD. An earlier version of this paper was presented at the 107th Annual Conference of the Society of Legal Scholars held at St Catherine’s College, University of Oxford, UK between 6–9 September 2016. Thanks to David Christie for the useful comments and suggestions on the initial draft.
1 Sweet, J, “Standard Construction Contracts: Some advice to Construction Lawyers” (1988–1989) 40 South Carolina Law Review 823, 824; Sweet, J, “Judging Contracts: Some Reflections on the Third International Construction Law Conference” [1994] ICLR 413–ff.
2 Sweet, J, “Standard Construction Contracts: Some advice to Construction Lawyers” (1988–1989) 40 South Carolina Law Review 823, 824. Cf Kessler, F, “Contracts of Adhesion – Some thoughts about Freedom of Contract” (1943) 43 Columbia Law Review 629; Radin, MJ, Boilerplate, The Fine Print, Varnishing Rights, and the Rule of Law (Princeton University Press, 2013).
3 There are other specialised forms of contract with international appeal. These include the Orgalime Conditions of Contract; the Engineering Advancement Association of Japan (ENAA) Model Form International Contract (for the construction of Process Plants and Power plants); International Chamber of Commerce (ICC) Model Turnkey Contract and the Institution of Chemical Engineers (IChemE) forms.
Pt 2] Dispute Resolution under the FIDIC and NEC Conditions
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