Editor’s note: please note that this post was written by the author before England’s rather ignominious exit from the World Cup!
It seems there is no escaping the football. I’ve come to the FIDIC International Contract Users’ Conference 2010, being held in Beijing this week, for my routine update on the federation’s standard form publishing and training efforts. Now, one might expect that given China’s national team are not a feature of a certain international football tournament taking place in South Africa, Beijing might be the place to get away from the current hysteria gripping those among the human race who are privileged enough to have access to a television that screens the football. Well, for good or ill, one would be wrong. Indeed the event is a source of attraction here that apparently there is a highly lucrative business in procuring fraudulent doctor certificates online for those employees who feel unable to front up at work owing to self-administered sleep deprivation. (I am reliably informed that many of the games being shown in East Asia take place early in the morning…)

This year’s conference again featured the regular visiting members of the FIDIC Contracts Committee, and, this time, a representative of the FIDIC Subcontractor Task Group, Ms. Siobhan Fahey. We were treated to a mixed bag of presentations aimed primarily at the casual user of FIDIC books, and some updates as to the status of the federation’s ongoing standard form revision programme. There were also a few interesting discussions and exchanges in the plenary session, and we received presentations from representatives of procuring agencies and engineering consultants from China the Indonesia. There was a very full schedule of presentations but, for me, the standout aspect of the programme was Ms. Fahey’s presentation on the Test Edition of the new Subcontract Form, which was published in December 2009 at the last FIDIC International Users’ Conference held in London.

Ms. Fahey held the interest of the audience with an explanation of the ‘grass roots’ philosophy of the Subcontract Form. She likened some of the project management provisions established in the Subcontract to a case of the ‘tail wagging the dog’, in the sense that subcontractors, big and small, young and old, are being set the challenge to come to grips with substantial requirements that in terms of complexity exceed those that many of them are used to, and indeed those stipulated for in the Conditions of Contract for Construction (1999 First Edition). This new form of subcontract contains very many substantial departures from its predecessor, the FIDIC Conditions of Subcontract 1994: for use with FIDIC Red Book 1987. Thus, for instance, the requirements concerning the Subcontract Programme involves mandatory detailed content that one won’t find in the 1999 First Edition ‘Red Book’. Does this foreshadow what is to come in the Second Edition, or will it indeed be a case of the tail wagging the dog?

European Engineer Philip Jenkinson also took an opportunity presented at the outset of Day 2 to renew the federation’s invitation to industry for comments on all the books that are currently under review, and mentioned a few noteworthy comments and suggestions received to date, including

– a perceived need for standard final commissioning and testing procedures for both the ‘Green Book’ and the 1999 First Edition ‘Red Book’

– the constraints on the freedom of origin of performance securities and insurances

– counter-measures to address the mischievous ‘go slow’ contractor

– and – if I heard him correctly – an intriguing reference to an emergent school of thought within sections of FIDIC that hankers for the return of powers and quasi-arbitral duties to the Engineer.

In time will we really see a return of the ‘quasi-arbitrator’? I would be inclined to prefer the chances of my team winning a certain golden trophy depicting two human figures holding up the Earth.

Nicolas Brown is a Partner in Pinsent Masons’ Asia Pacific Group

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