International Construction Contract Law

International Construction Contract Law

1. Aufl.

von: Lukas Klee

81,99 €

Verlag: Wiley-Blackwell
Format: PDF
Veröffentl.: 29.10.2014
ISBN/EAN: 9781118717882
Sprache: englisch
Anzahl Seiten: 560

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Large international construction projects often have a range of major contractors, subcontractors and consultants based in different parts of the world and working to different legal theories and understandings. This can lead to confusion in the understanding, interpretation and execution of the construction contract, which can result in significant disruption to the construction project. International Construction Contract Law is written for anyone who needs to understand the legal and managerial aspects of large international construction projects, including consulting engineers, lawyers, clients, developers, contractors and construction managers worldwide. In 18 chapters it provides a thorough overview of civil law /common law interrelationships, delivery methods, standard forms of contract, risk allocation, variations, claims and dispute resolution, all in the context of international construction projects. Highly practical in approach – it introduces legal analysis only when absolutely essential to understanding, the book also contains a range of useful appendices, including a 10-language basic dictionary of terms used in FIDIC forms.
About the Author xv Foreword xvii Svend Poulsen Acknowledgements xix Introductory Remarks xxi Shuibo Zhang Introductory Remarks xxiii Robert Werth Introductory Remarks xxv Ilya Nikiforov 1 International Construction Projects 1 1.1 The unique nature of the construction industry 1 1.2 Individuality of construction projects 1 1.3 Roles and relationships 2 1.3.1 Contractors 2 1.3.2 Designers 3 1.3.3 Regulators 3 1.3.4 Employers 3 1.3.5 Users 4 1.4 Contract administration: The Engineer 4 1.4.1 The Engineer 6 The Engineer’s certifications and fair determinations 7 The Engineer’s responsibilities and liabilities 9 1.5 Further important aspects of construction projects 10 1.5.1 Overlap of construction project phases 10 1.5.2 Admissibility of variations and the need for variation management 11 1.6 Typical contractual relationships 11 1.7 Motivation for international business 11 1.8 Managerial analyses 13 1.9 Hazards and risks 14 1.10 Hazard identification 15 1.11 Risk analysis 15 1.12 Anti-risk measures 16 1.12.1 Take 16 1.12.2 Treat 16 1.12.3 Transfer 17 1.12.4 Terminate 17 1.13 Typical hazards in the international construction business 17 1.14 Risk allocation in contracts 18 Vignette: Wrong forms of contract by James Bremen (UK) 18 1.15 Form of business organization 19 1.15.1 Representative office and domestic or foreign subsidiary 19 1.15.2 The consortium and the joint venture in construction 19 1.15.3 The consortium 20 1.15.4 The joint venture 21 ARGE 22 References 22 Further reading 23 2 Civil Law and Common Law 24 2.1 Specifics of the governing law 24 2.2 Common law versus civil law: Differences and interconnections 24 Vignette: The common law of Australia and the influence of statutory law by Donald Charrett (Australia) 26 2.3 Delay damages (liquidated damages) versus contractual penalty 28 2.4 Substantial completion versus performance 29 2.4.1 Taking-over of the works 29 2.5 Binding nature of adjudication awards 31 2.6 Limitation of liability 31 2.7 Lapse of claim due to its late notification (time bars) 32 2.8 Allocation of unforeseeable and uncontrollable risk to the contractor 32 2.8.1 Principle of good faith (good manners) protection 33 2.8.2 Imprevision 37 2.8.3 Protection of the weaker party 38 2.8.4 Force majeure 38 2.8.5 Hardship 39 2.8.6 Frustration of purpose 40 2.8.7 Impossibility 40 2.8.8 Impracticability 41 2.9 Contract administration (The Engineer’s neutrality and duty to certify) 42 2.10 Termination in convenience 43 Vignette: Is an employer in breach of contract prevented from terminating the contract for its convenience? by Cecilia Misu (Germany) 44 2.11 Time-related issues 45 2.11.1 Delay 45 2.11.2 Disruption 45 2.11.3 Ownership of floats 45 2.11.4 Time at large and Extension of Time 46 2.11.5 Concurrent delay 46 2.11.6 Constructive acceleration 46 2.12 Quantification of claims 46 2.12.1 Headquarters overhead claims 46 2.12.2 Global claims 47 2.13 Statutory defects liability 47 2.14 Performance responsibility: reasonable skill and care versus fitness for purpose 47 2.15 Common law, civil law and Sharia interconnections 48 References 49 Further reading 49 Website 50 3 Common Delivery Methods 51 3.1 Common delivery methods: Main features 51 3.1.1 Design responsibility 52 3.1.2 Contract price determination 52 3.1.3 Contract administration 53 3.1.4 Risk allocation and admission of claims 53 3.2 General contracting 53 3.3 Design-build 54 3.3.1 Design-build procurement 55 3.3.2 Employer’s requirements in design-build projects 56 3.4 Construction management 58 3.4.1 CM-at-risk 59 3.5 Multiple-prime contracts 60 3.6 Partnering 60 3.7 Alliancing 61 3.8 Extended delivery methods (PPP, BOT, DBO) 62 3.9 Further aspects of delivery methods 62 3.9.1 Fast track projects 62 3.9.2 Target cost contracts 62 3.9.3 Early contractor involvement and the pre-construction services agreement 63 3.9.4 Building information management systems 64 References 65 Further reading 65 4 Specifics of EPC and EPCM 66 4.1 EPC and EPCM 66 4.2 Engineer procure construct (EPC) 66 4.2.1 Main advantages and disadvantages of EPC 68 4.2.2 Key issues with the EPC delivery method 69 4.3 Bespoke EPC contracts 69 4.4 Turnkey EPC contracts 70 Vignette: Water treatment, wind farm and road construction projects in Asian and African countries by Stephane Giraud (France) 71 4.5 Front end engineering design 72 Vignette: Key issues in the procurement of international hydropower construction contracts by Alex Blomfield (UK) 73 4.6 Engineer procure construction management (EPCM) 77 4.6.1 Key competencies of the EPCM contractor 77 4.6.2 Main advantages and disadvantages of EPCM 78 4.6.3 Key issues of the EPCM delivery method 79 Vignette: The use of the EPCMdelivery method in the mining industry by Mark Berry (UK) and Matthew Hardwick (UK) 79 4.7 EPC versus EPCM 85 Reference 86 Further reading 87 5 Unification and Standardization in International Construction 88 5.1 Unification of contracts 88 5.2 Unification per law, principles and sample documents 88 5.2.1 Unification per law 88 5.2.2 Unification per principles 89 5.2.3 Unification per sample documents 90 INCOTERMS 90 5.3 Lenders and their influence on unification 90 5.3.1 European Union funds 90 5.3.2 The European Investment Bank (EIB) 91 5.3.3 The European Bank for Reconstruction and Development (EBRD) 91 5.3.4 The World Bank (WB) 92 5.4 Standard form of contract in a governing law context 92 5.5 Purpose of sample documents in construction projects 93 5.6 Standard sample forms as a source of law 94 5.7 Lex causae 95 5.8 Interpretation 96 5.9 Trade usage and business custom 97 Vignette: A common law of construction contracts – or vive la difference? by Donald Charrett (Australia) 98 5.10 Lex constructionis principles 100 5.10.1 Proactivity and good faith protection related to time for completion 101 5.10.2 Admissibility and necessity of variation procedures 102 5.11 The use of lex constructionis 102 Vignette: Future-proofing construction contracts by Shy Jackson (UK) 102 References 105 Further reading 105 Websites 105 6 Price 106 6.1 Contract price 106 6.1.1 Project finance 107 6.2 Bid pricing methods 107 6.3 Methods of contract price determination 109 6.3.1 Economic influences on the contract price 109 6.3.2 Formation of total contract price 109 6.4 Re-measurement 109 6.4.1 Methods of measurement 110 6.4.2 Provisional sum 110 6.4.3 Options 112 6.5 The lump sum 112 6.6 Cost plus 112 6.7 Guaranteed maximum price 113 6.8 Target price 113 6.9 Payment 114 6.9.1 Progress payments 115 6.9.2 Milestone payments 115 Vignette: Taxation in international construction contracts by Alex Blomfield (UK) 115 6.10 Contract price under FIDIC forms 117 6.11 Cost overruns 119 6.12 Abnormally low tender (ALT) 120 6.13 Claims as part of contract price 121 6.13.1 Limitation and prescription periods for claims 122 6.14 Public procurement law limitations 122 Vignette: A concept of variation in a construction contract under Polish public procurement by Micha³ Skorupski (Poland) 123 References 126 Further reading 126 Websites 127 7 Time 128 7.1 Time in construction 128 7.2 Delay 128 7.3 The United Kingdom Society of Construction Law Delay and Disruption Protocol 130 7.4 Time programme 131 7.4.1 Critical path method 132 7.5 Ownership of floats 133 Vignette: Time extension and float ownership under the FIDIC Red and Yellow Books (1999 editions) (BAMCO FDTEA final argument) by Frank Thomas (France) 133 7.6 Time at large and Extension of Time (EOT) 146 7.7 Concurrent delay 148 Vignette: Delay clauses in different jurisdictions by Jacob C. Jorgensen (Denmark) 149 7.8 Disruption 150 7.9 Time for completion under FIDIC forms 151 7.10 Time programme under FIDIC forms 152 Vignette: A lack of realism in negotiations by James Bremen (UK) 154 7.11 Delay and suspension under FIDIC forms 154 7.11.1 Delay under FIDIC forms 155 7.11.2 Practical recommendations for EOT claims 155 7.11.3 Suspension of work under FIDIC forms 156 Employer suspension 156 Contractor suspension 156 7.12 Contract termination under FIDIC forms 158 7.12.1 Employer termination 158 7.12.2 Contractor termination 159 7.12.3 Termination in convenience 159 7.12.4 Force majeure termination 160 References 160 Further reading 160 8 Variations 161 8.1 Variation clauses 161 8.2 Variations under FIDIC forms 163 8.3 Claims related to variations 164 8.3.1 Directed variation 165 8.3.2 Constructive variation 165 8.3.3 Voluntary variation 166 8.4 Acceleration 166 8.4.1 Directed acceleration 167 8.4.2 Constructive acceleration 167 Vignette: The US approach to constructive acceleration by Robert A. Rubin and Sarah Biser (the USA) 170 8.4.3 Voluntary acceleration 173 8.5 Proving the acceleration claim 173 8.6 Substantial change 174 Vignette: Modification of contracts during their execution under EU law by Odysseas P. Michaelides (Cyprus) 176 References 180 Further reading 180 Websites 180 9 Claims 181 9.1 Claims 181 Vignette: Claims caused by deficiencies in tender documents by James Bremen (UK) 184 9.2 Contractor’s claims under FIDIC forms 185 9.3 Employer’s claims under FIDIC forms 186 Vignette: Claims in the St Petersburg flood protection barrier construction by Aleksei Kuzmin (Russia) 186 9.4 Lapse of claim 189 9.4.1 Risk allocation and claims interconnections 190 9.5 Cause of the claim 191 9.6 Limits of the lapse of claim 191 Vignette: Construction claims in the UK by Garry Kitt (UK) 193 9.6.1 Evaluation of a particular lapse of claim 195 Vignette: Condition precedent and time-barred claims under Polish Law by Micha³ Skorupski (Poland) 196 Vignette: Australian position on time bars by Andrew P. Downie (Australia) 197 References 204 Further reading 204 10 Claim Management 205 10.1 Claim management 205 10.2 Claims for Extension of Time (EOT) 206 10.3 Claims for additional payment 208 10.3.1 Claims resulting from variations 209 10.4 Claims resulting from delay and/or disruption under the provisions of the contract 209 10.4.1 Delay claims 209 Site overhead claims 210 Vignette: Considerations related to site overhead claims by Gary Kitt (UK) 210 Headquarters overhead claims 212 Subcontractor claims 215 Lost profit claims 215 Financial costs and interest claims 216 Increased cost of material, labour and equipment 217 Claim preparation costs 217 10.4.2 Disruption claims 218 10.5 Claims resulting from governing law 220 10.6 Global claims 220 Vignette: All global claims are not negatively ‘global’! by Frank Thomas (France) 223 10.7 Contractor’s claim management under FIDIC forms 224 10.8 Employer’s claim management under FIDIC forms 227 10.9 Intercultural aspects 228 Vignette: Cultural considerations in Southeast Asia by Salvador P. Castro, Jr. (The Philippines) 228 Vignette: ‘Claim’ as perceived in the Polish civil law environment by Micha³ Skorupski (Poland) 230 10.10 Claim management implementation 231 Vignette: Claims in a tunnel construction in the Republic of Serbia by RadimWrana (the Czech Republic) 232 References 234 Further reading 234 11 Construction Dispute Boards 235 11.1 Construction disputes 235 Vignette: Construction dispute in sheet metal galvanizing line project by Patrick Kain (South Africa) 235 11.2 Dispute boards 237 11.2.1 Dispute avoidance 238 Vignette: Project dispute avoidance by Christopher J. Mather (the USA) 238 11.2.2 Dispute boards: Advantages and disadvantages 244 11.2.3 Dispute Adjudication Board (DAB) 245 11.2.4 Dispute Review Board (DRB) 245 Vignette: The use of dispute boards in the Middle East and North Africa by Andy Hewitt (United Arab Emirates) 245 11.3 Contractual adjudication: The use of DAB in FIDIC forms 246 11.3.1 FIDIC policy statements to ADR 248 11.3.2 Independence and impartiality 249 11.4 Enforcement of dispute board decisions 249 11.4.1 Non-binding recommendations 249 11.4.2 Interim binding decisions 250 11.4.3 Contractual sanctions for non-compliance with dispute board decisions 250 11.5 Statutory adjudication 254 Vignette: Statutory adjudication by Nigel Grout (UK) 254 11.5.1 UK Statutory Adjudication Regime 255 11.5.2 The scheme for construction projects in the UK 255 11.5.3 Some procedural aspects of statutory adjudication 256 Vignette: Settling construction disputes in Hungary by Tamas Balazs (Hungary) 256 Vignette: Statutory adjudication in Australia by Donald Charrett and Andrew Downie (Australia) 258 References 264 Further reading 265 12 FIDIC 266 12.1 FIDIC expansion 266 12.2 FIDIC 266 12.3 FIDIC’s influence on the construction industry 267 12.4 FIDIC membership 267 12.5 Networking activities 268 12.5.1 Translations and local use of FIDIC forms 269 Vignette: The use of FIDIC forms in Southeast Asia by Salvador P. Castro, Jr. (The Philippines) 270 Vignette: The use of FIDIC forms in Russia by Dmitry Nekrestyanov (Russia) 271 Vignette: The use of FIDIC forms in Brazil by Rafael Marinangelo (Brazil) 272 12.6 FIDIC forms of contract 272 12.7 The structure of the contract under FIDIC forms 274 12.7.1 Particular conditions 274 12.7.2 Employer’s requirements 275 12.7.3 Contractor’s proposal 276 12.7.4 Drawings 276 12.7.5 Bill of quantities and specifications 277 12.8 Conditions of Contract for Construction (CONS) – 1999 Red Book 277 12.8.1 Structure of CONS 277 Vignette: Misapplications of FIDIC contracts in the United Arab Emirates by Kamal Adnan Malas (United Arab Emirates) 278 12.9 Conditions of Contract for Plant and Design-Build (P&DB) – 1999 Yellow Book 283 12.9.1 Structure of P&DB 283 12.10 Conditions of Contract for EPC/Turnkey Projects (EPC) – 1999 Silver Book 284 12.10.1 Structure of EPC 284 12.11 Short Form of Contract – Green Book 285 12.11.1 Structure of Short Form of Contract 285 12.12 Construction Subcontract 285 12.12.1 Structure of Construction Subcontract 285 12.13 Conditions of Contract for Design, Build and Operate (DBO) – Gold Book 286 12.13.1 Structure of DBO 287 12.14 Other FIDIC standard forms 289 Vignette: Use of FIDIC contracts by the mining industry in Africa by Coenraad Snyman (South Africa) 289 12.15 Risk allocation under FIDIC forms 291 12.15.1 Risk allocation in CONS 291 Employer’s risks 291 Contractor’s risks 293 Vignette: China’s Standard form of construction contract in comparison with FIDIC forms by Shuibo Zhang (China) 294 12.15.2 Risk allocation in P&DB 298 12.15.3 Risk allocation in EPC 298 Vignette: Explanation of FIDIC EPC risk allocation by FIDIC 299 12.16 Design responsibility under FIDIC forms 301 References 303 Further reading 303 13 Other Standard Forms of Construction Contracts: NEC, ICC, ENNA, IChemE, Orgalime, AIA, VOB 305 13.1 Common standard forms of construction contracts 305 13.2 The NEC (New Engineering Contract) 305 13.2.1 NEC forms of contract 307 13.3 FIDIC forms versus NEC3 310 13.4 ICC forms of contract 313 13.5 ENAA forms of contract 314 13.6 IChemE forms of contract 314 13.7 Orgalime forms of contract 315 13.8 AIA forms of contract: US standard 316 13.9 VOB: German standard 318 13.9.1 Content of VOB/B 320 13.9.2 VOB limitations 323 13.10 Invalid clauses in German case law 324 Vignette: The standard forms of construction contract in Australia by John Sharkey (Australia) 325 References 328 Further reading 328 Websites 329 14 Risk and Insurance 330 14.1 Insurance in construction 330 14.2 Commercial risk, risk of damage and exceptional risk 331 Vignette: Weather risk in offshore wind construction contracts by Alex Blomfield (UK) 334 14.3 Risk management in the standard forms of contract 337 14.4 Hazards and risks in construction projects 339 14.4.1 Project preparation risks 340 14.4.2 Design risks 340 14.4.3 Site risks 341 14.4.4 Execution risks of a technical nature 341 14.4.5 Execution risks of an anthropogenic nature 342 14.4.6 Post-construction risks 342 14.5 Insurance requirements in standard forms of contract 342 14.5.1 Insurance requirements in FIDIC forms 342 Design risk and insurance 343 General insurance requirements 343 Insurance for works and contractor’s equipment 344 Insurance against injury of persons and damage to property 344 Insurance for contractor’s personnel 344 Vignette: Insurance in hydroenergy projects by Alex Blomfield (UK) 345 14.6 Practical aspects of insurance in construction projects 346 14.6.1 Recommendations for negotiating insurance 346 14.6.2 Compatibility of the construction contract with the insurance contract 347 Vignette: Incompatibility of the construction contract with the insurance contract by Karel Fabich (the Czech Republic) 348 14.7 International insurance law and insurance standards in the construction industry 349 14.7.1 Standard insurance terms of ABN 2011 and ABU 2011 349 Conditions of ABU – Section A 350 Conditions of ABN – Section A 351 14.7.2 Munich CAR & EAR insurance terms standards 351 CAR terms 351 EAR terms 352 References 352 Further reading 352 Website 353 15 Risk in Underground Construction 354 15.1 Underground construction hazards and risks 354 15.2 Code of practice for risk management of tunnel works 355 15.3 Alternatives of unforeseeable physical conditions risk allocation 356 15.4 Unforeseeability 357 15.5 ‘Unforeseeability’ according to FIDIC forms 358 15.6 Site data 359 Vignette: Water-related construction projects by Robert Werth (Germany) 361 15.7 Sufficiency of the accepted contract amount 364 15.8 Unforeseeable physical conditions 364 15.9 Unforeseeable operation of the forces of nature 366 Vignette: Clairvoyance: A contractor’s duty? by Gustavo Paredes and KatherineWaidhofer (Peru) 366 15.10 Force majeure 369 15.11 Release from performance under law 370 References 370 Further reading 370 Website 371 16 Securities 372 16.1 Securities in construction 372 16.2 Bank guarantees 373 16.3 Functions and parameters of bank guarantees 373 16.3.1 Vadium/Tender Guarantee/Bid Bond 373 16.3.2 Advance Payment Guarantee/Down Payment Guarantee/Advance Payment Bond 374 16.3.3 Performance Guarantee/Final Guarantee/Performance Bond 374 16.3.4 Warranty Guarantee/Maintenance Guarantee/Maintenance Bond 374 16.3.5 Retention Guarantee/Retention Bond 375 16.3.6 Payment Guarantee/Payment Bond 375 16.4 Specifics of Retention Guarantee 375 Vignette: Performance security and termination payment security in hydroenergy projects by Alex Blomfield (UK) 377 16.5 Governing law 378 Vignette: Common law specifics related to securities by Rupert Choat and Aidan Steensma (UK) 379 16.6 ICC rules related to securities 381 16.7 Suretyship 381 16.8 Stand-by letter of credit 382 16.9 Securities under FIDIC forms 383 Further reading 384 17 Civil Engineering Works: Infrastructure Construction Projects 386 17.1 Investments in developing countries 386 17.2 The approach to the risk allocation in the United States 387 17.3 The approach to the risk allocation in the United Kingdom 389 Vignette: Construction of airports by Patrick Kain (South Africa) 390 17.4 The approach to the risk allocation in Central and Eastern Europe 392 17.4.1 Restricted competencies of the Engineer 393 17.4.2 Inefficient risk allocation 394 17.4.3 Limitation of contractors’ claims 395 17.4.4 Contractual determination of a maximum total contract price 395 Vignette: The Romanian experience by Claudia Teodorescu (Romania) 395 17.5 The Polish experience 399 Vignette: FIDIC forms and contractual relationships in Poland by Aleksandra Marzec (Poland) 399 Vignette: Market environment prior to and after 2008 by Micha³ Skorupski (Poland) 402 17.5.1 Abnormally low price 403 17.5.2 Inefficient risk allocation 404 17.5.3 Consortiums 406 17.5.4 Contract administration: The Engineer 406 Vignette: Claims considerations by Aleksandra Marzec (Poland) 408 17.5.5 Specific legislation for subcontractors 409 17.5.6 Courts and litigation 410 Vignette: Contractor defence measures by Micha³ Skorupski (Poland) 412 17.5.7 Consequences of inefficient risk allocation 413 17.6 The Czech experience 415 Vignette: Local limits for development: An interview with Shy Jackson (UK) by Lukas Klee (the Czech Republic) 416 References 421 Further reading 421 Websites 422 18 Building Construction: Health Care Facilities 423 18.1 Health care facility construction project 423 18.2 Pre-design planning phase 423 18.3 Design phase 424 18.4 Basic structure of a hospital 425 18.5 Efficiency and cost effectiveness 425 18.6 Flexibility and expandability 426 18.7 Therapeutic environment 426 18.8 Cleaning and maintenance 426 18.9 Controlled circulation and accessibility 427 18.10 Aesthetics 427 18.11 Health and safety 428 18.12 Use of information technology 428 18.13 Relevant regulations and standards 428 18.14 Health care facility construction project: Suitable delivery method 429 18.14.1 Extent of employer’s involvement in the project 429 18.14.2 Employer’s right to instruct variations 429 18.14.3 Employer’s position in claiming design defects 430 18.14.4 Speed 430 18.14.5 Certainty of the bid price 431 18.14.6 Final evaluation of the suitable delivery method 431 Further reading 431 Appendix A: Interactive Exercises 433 A.1 Interactive exercise 1: Delivery method selection 433 A.2 Interactive exercise 2: Claim for delayed site handover 434 A.3 Interactive exercise 3: Claim due to suspension of work 436 A.4 Interactive exercise 4: Subcontractor claim for contractor delay (lack of cooperation, inadequate on-site coordination and improper, unclear and delayed instructions) 437 Appendix B: Sample Letters 441 B.1 Contractor’s sample letters: Notice of probable future event 442 B.2 Contractor’s sample letters: Notice of contractor’s claims 443 B.3 Contractor’s sample letters: Contractor’s claim No. submission (quantification) 445 B.4 Contractor’s sample letters: Request for evidences of financial arrangements 446 B.5 Contractor’s sample letters: Written confirmation of oral instruction 447 B.6 Contractor’s sample letters: Notice of dissatisfaction with a determination of the engineer 448 B.7 Contractor’s sample letters: Notice of contractor’s entitlement to suspend work 449 B.8 Contractor’s sample letters: Notice of contractor’s claim under the Sub-Clause 16.1 450 B.9 Contractor’s sample letters: Application for taking-over certificate 451 B.10 Employer’s sample letters: Notice of employer’s claim 452 B.11 Employer’s sample letters: Answer to request for evidence of financial arrangements 453 B.12 Engineer’s sample letters: Engineer’s determination 454 B.13 Engineer’s sample letters: Engineer’s instruction 456 B.14 Engineer’s sample letters: Engineer’s notice to correct 457 B.15 Engineer’s sample letters: Engineer’s instruction to remove a person employed on the site 458 B.16 Engineer’s sample letters: Engineer’s instruction – lack of mobilisation 459 Appendix C: Dictionary of Construction Terms: Chinese, Czech, English, French, German, Hungarian, Polish, Portuguese, Russian, Spanish 461 C.1 Dictionary – General part 462 C.2 Dictionary – Contractor’s claims 470 C.3 Dictionary – Employer’s claims 474 Appendix D: Claim Management System under FIDIC Forms 478 D.1 Claim Management Team Responsibilities 478 D.1.1 E1 – Project manager 478 D.1.2 E2 – Design and time schedule (Programme) 479 D.1.3 E3 – Site manager 479 D.1.4 E4 – Contract Interpretation, Monthly Statements, Invoicing, Insurance, Subcontractors, Employer’s Claims, Mutual Claims in a Joint Venture 480 D.1.5 E5 – Administrative support 480 D.2 Claim Management Processes 481 D.3 Table of Contractor’s claims under FIDIC CONS 482 D.4 Table of Employer’s claims under FIDIC CONS 482 Appendix E: FIDIC Forms Risk Allocation Charts 484 E.1 Chart No.1: Basic risk allocation alternatives in connection with unforeseeable physical conditions 484 E.2 Chart No. 2: Basic comparison of risk allocation (claims options) in FIDIC CONS/1999 Red Book, P&DB/1999 Yellow Book and EPC/1999 Silver Book 484 Appendix F: Engineer’s Determination Within the Ambit of the 1999 Edition of the FIDICContract Forms: A Case Study of Contractor’s Claims in Respect of Sand and Gravel Borrow Areas 487 Khalil T. Hasan F.1 Preface 490 F.2 Introduction 490 F.3 Contractual provisions for a claim 491 F.4 Compliance with the contractual provisions 492 F.5 Consultations with the employer and the contractor 493 F.6 Contractor’s original intent 507 F.7 Stage 2 – Contractor’s tender submission 512 F.8 Conclusion in respect of contractor’s original intent 512 F.9 Post contract award period 513 F.10 Contractor’s reasons for refusal to exploit the river bed borrow areas 516 F.11 Equipment required for exploitation of river bed borrow areas 518 F.12 Engineer’s analysis of the foregoing circumstances and facts 520 F.13 Additional costs and delays 523 F.14 Unjust enrichment of the contractor all at the expense of the employer 525 F.15 Engineer’s determination of S&G borrow area claim notices 526
“Lukas Klee’s “International Construction Contract Law” is a useful contribution to the doctrine of international construction law. The book is well written and contains a wealth of practically useful information, which will help in-house lawyers, external lawyers, engineers, project managers, and other professionals who are involved in the negotiation and/or management of major international construction contracts.”  (ASA Bulletin, 1 October 2015) “International Construction Contract Law will be invaluable to those operating in the international construction market and undoubtedly will become a practitioner’s go-to guide on the subject.”Civil Engineering Surveyor, 1 April 2015Review by The Barrister - appeared on You Tube 11 March 2015(“Dr Klee’s book should have broad appeal in the Australian construction industry … The description of key concepts is thorough and the snapshots of relevant common law principles clearly articulated.  Dr Klee cleverly connects the legal and the practical thereby bringing the performance and administration of construction contracts out of the theoretical realm into the real world.  …  Dr Klee’s discussion, observations and inquiry into what the future holds for international construction contracts is thought provoking and, pleasingly, interesting and enjoyable reading”Rebecca Dickson, Director, Society of Construction Law, Australia, Society of Construction Law Australia Newsletter July 2015 “Given the increasing globalization of commerce it is essential that persons setting up the transactions understand the legal means at their disposal. ... This work makes an important and original contribution to the knowledge of those dealing with these transactions. … It will be of immense use to consulting engineers, lawyers, clients, developers, contractors and construction managers worldwide and is highly recommended"John Twyford, Australian Construction Law Newsletter, Australia May/June 2015It is a comprehensive technical guide for the construction industry … a 'must have' for all parties involved in a construction project …  author’s substantial work has developed in time, based on his knowledge and personal experience and collaborating with experts from various regions of the world, in order to offer a complete assessment of the construction industry contracting formulas. … The book investigates the possibilities of a future more coherent, standardized method of contracting constructions projects, by comparing the pros and cons of various contract forms and legislations applied worldwide.” Claudia Adalgiza Teodorescu, Contract Management/Dispute Resolution Expert, Drumuri Poduri Journal (Romania)The book is complete (534 pages) and easily accessible. It is subdivided into 18 sections, covering exhaustively a variety of issues relating to international construction contracts. Thus, as an example, the author tackles the relatively theoretical matter of international construction contract standardization, but also the crucial technical issues of price, reception and risk allocation in an international context. Several authors and practitioners recognized in the field of international construction provided assistance to Lukas Klee in further specifying certain notions according to their particular cultural and professional profiles. We’ll also note some very useful appendixes for the readers such as the multilingual dictionary of construction terms and the sample letters. It follows from all the observations that Lukas Klee’s book is of great interest and value to professionals of international construction sector as well as for academics and instructors.Revue Trimestrielle de Droit Immobilier No3 2015 "Some books quickly become ‘go-to‘ books in their field, in particular because they are user-friendly, practical and succinct, yet comprehensive. Lukas Klee‘s book on international construction contract law falls into this category and would be a worthy addition to the bookshelf of every reader of Construction Law International. Lawyers and non-lawyers alike will appreciate the author’s hands-on and real-life approach".Bernd Ehle, Construction Law International (Volume 10 Issue 4 December 2015)
Lukas Klee, JD, LL.M., Ph.D., MBA, is an international construction law expert, adjudicator and currently head of the legal department at Metrostav a.s., a large construction company based in central Europe. For over a decade Lukas has dealt with international construction contracts (FIDIC) on a daily basis and has participated in large construction projects in the Czech Republic and internationally. When away from the office, he lectures on international construction law, at the Charles University Faculty of Law in Prague, the Czech Technical University in Prague and at the University of Warsaw Faculty of Law.Over the course of his LL.M. studies at Nottingham Trent University and PhD studies at the Charles University Faculty of Law, Lukas focused on FIDIC forms of contracts. His MBA dissertation at Sheffield Hallam University further examined claim management implementation.Lukas regularly gives lectures for many organizations including FIDIC, provides training, publishes articles worldwide and is the author of several books related to international construction law.
Large international construction projects often have a range of major contractors, subcontractors and consultants based in different parts of the world and working to different legal theories and understandings. This can lead to confusion in the understanding, interpretation and execution of the construction contract, which can result in significant disruption to the construction project. International Construction Contract Law is written for anyone who needs to understand the legal and managerial aspects of large international construction projects, including consulting engineers, lawyers, clients, developers, contractors and construction managers worldwide. In 18 chapters it provides a thorough overview of civil law /common law interrelationships, delivery methods, standard forms of contract, risk allocation, variations, claims and dispute resolution, all in the context of international construction projects. Highly practical in approach – it introduces legal analysis only when absolutely essential to understanding, the book also contains a range of useful appendices, including a 10-language basic dictionary of terms used in FIDIC forms.

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