International Construction Law Review
THE FIDIC ENGINEER IN CIVIL LAW COUNTRIES – AN ITALIAN APPROACH
Giuseppe Giancarlo Franco1
ABSTRACT
On large infrastructure projects, engineering companies are often hired to help employers draft and execute the project. The FIDIC forms of contract, and especially the Red Book, have always recognised the importance of contract management by entrusting the engineer with a wide array of services. However, due to their common law background, the FIDIC forms of contract, and so the engineer, are scarcely used in the Italian construction industry. By investigating the provisions of the Red Book, this article delves into the managerial functions carried out by the FIDIC engineer in an attempt to analyse the interaction between this professional and the law and practice of the Italian legal system.
1. THE ENGINEER: FROM THE BRITISH COURTROOMS TO THE FIDIC FORMS OF CONTRACT
Since the dawn of the industrial revolution, British engineers have been gaining prestige not only on their traditional playing field – the construction site – but also in a more unconventional location: the court of law. Within courtrooms, the engineer became the expert upon whom the judge relied during complex technical litigation.2 Eventually, this evolved into the practice of having an engineer fulfilling a decision-making function next to their traditional roles of designer and project manager. It’s here that the British engineer began to part ways with their continental colleagues, who remained confined to their conventional roles. This may explain why nowadays in the UK – and so in many other common law jurisdictions –
1 Giuseppe is an attorney at the Milan bar with specific experience in cross-border litigation and arbitration, and is a candidate of the Construction Law & Dispute Resolution MSc taught at King’s College, London. The author would like to express his sincere gratitude to Mauro Rubino-Sammartano for his invaluable comments and advice that made the completion of this work possible.
2 See the old English case Folkes v Chadd (KB) (1782) 3 Doug KB 157 whereby Lord Mansfield acknowledged the importance of the expert’s opinion by stating: “in matters of science, the reasonings of men of science can only be answered by men of science.” See also Swansea Vale Railway Company v Budd (1866) LR 2 Eq 274; 35 L J Ch 631 where Lord Page Wood used these words to justify the intervention of the engineer: “It is quite possible that some of these plans which appear to shew one thing, may really show something very different, for the observation of which the experienced eye of an engineer may be necessary.”
Pt 3] The FIDIC Engineer in Civil Law Countries
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