FIDIC-A Guide for Practitioners

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FIDIC-A Guide for Practitioners

The idea for this book was born out of the belief that the increasing dissemination of
FIDIC forms of contract throughout the Civil Law world requires a different
approach to the subject matter than that which is found under the Common Law.
An English native speaker will naturally not encounter many difficulties when
reading the FIDIC forms, although of course the wording used will sometimes be
subject to interpretation. Again an English native speaker will usually be familiar
with the underlying legal principles, which mostly derive from Common Law,
despite the fact that some Civil Law-inspired features have been incorporated in
the FIDIC books. Thus there is a clear need to explain Common Law concepts and
legal terms in the context of Civil Law. This may often prove to be difficult as the
very nature of Civil Law language is in many respects different from Common Law
language. Both systems have terms which are often difficult to translate literally
because of the fact that the terms reflect legal concepts which are unknown in the
other legal world.

Although many difficulties in understanding the wording may be overcome if the
terms and concepts are carefully explained, the English wording may sometimes be
in direct contradiction to Civil Law concepts and practice. Whether the FIDIC
wording will then prevail depends on the strength of the pacta sunt servanda
principle. Civil Law systems usually determine and categorise the very nature of
a contract. If the contract falls within the limits of a nominated contract, the relevant
default rules (lois supple´tives, dispositives Recht) and additionally the relevant
mandatory rules will apply. Whether the FIDIC based contract will be recognized
as an agreement sui generis or at least as a valid agreement although being in
contradiction to the law must be ascertained on a case by case basis

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