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Book Five contains 29 examples of arbitrations with the Arab countries,
illustrating a number of different difficulties. The book ends with excerpts
from laws and regulations concerning arbitration from selected Arab countries, and sets out the Amman Arab Convention on Commercial Arbitration.
Why is there no index? It seems a shame, but nonetheless, Dr. El-Ahdab
has written a good reference book which should go some way to filling the
remaining gaps in the literature available in English on this topic, the last
major work being Samir Saleh's work, Commercial Arbitration in the Arab
Middle East (Graham & Trotman).
Mark Hoyle
F I D I C , the Federation Internationale Des Ingenieurs-Conseils, is an association of national associations of Consulting Engineers with headquarters in
Lausanne in Switzerland. F I D I C first produced a standard form of contract
for civil engineering projects in 1957. The 4th Edition of the 'Conditions of
Contract for Works of Civil Engineering Construction', the subject of this
book, was published in 1987. F I D I C 4 T H entitled 'A Practical Legal Guide'
is a very substantial book, written by a lawyer experienced in international
civil engineering projects. The book is worthy of its title and worthy of study
by all concerned with such projects.
The format of the book is as follows:Table of Cases
Introduction
F I D I C 4th Part I with Commentary
Comparision of F I D I C 4th and 3rd Editions
Appendix comprising F I D I C 4th Part II; Form
of Agreement; Form of Tender, and Appendix
to Form of Tender.
The Introduction has four sections, namely:(a) Introduction, setting out the origins of the 4th Edition, with comparison
of dates of publication of the various editions of the conditions produced
by the Institute of Civil Engineers in the United Kingdom (the T.C.E.
Conditions'; there seems to have been some leapfrogging over the dates of
publication of the two sets of conditions), the Nature of the Conditions
with principal changes from the 3rd Edition, Amendment of F I D I C ' s 4th
Edition and clauses requiring attention in order to remove ambiguities,
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Fidic 4th - a Practical Legal Guide (A C o m m e n t a r y on the International Construction Contract) by E. C. C O R B E T T . Published by Sweet and
Maxwell, London (1991, xviii and 706 pp. incl. Preface, Table of Contents and Cases,
Comparison between FIDIC 4th Edition and 3rd Edition, Appendix (FIDIC 4th Part
IF) and Index). Hardback Price £70.00.
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This Introduction of some thirty pages is thus no mere formal lead-in to the
commentary (detailed as that is in all conscience) but, through a discussion of
the salient provisions and by means of the charts and tables, gives an allimportant overview of the whole subject and is an invaluable part of the book.
The main part of the book consists, as one would expect, of a commentary
on each of the clauses in the conditions. The actual text of the clause is set out
in full, followed by a precis of the text in heavy type. There then follows a
commentary with discussion of the bearing of judgments (where relevant) of
English and overseas courts.
It is clearly not possible in a review of this length to refer, even briefly, to
the author's comments on all the clauses. Two sections, however, demonstrate
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anomalies or discrepancies in the drafting. At the end of this latter section
there is a valuable and necessary warning - 'Generally, great care is
needed when amending any standard form of contract'. Too true! How
often has one come across amendments to standard forms of contract
made enthusiastically and with the best of intentions which have merely
had the effect of rendering confusion worse confounded.
(b) The second section of the Introduction is entitled 'The Role of the
Engineer' and sets out the different roles as follows:- Designer; quality
controller; valuer and certifier; adjudicator. Inevitably discussion arises as
to when the Engineer is acting as the agent of the Employer and when he
is acting as an independent person for the administration of the contract
and for the settlement of disputes. This is encapsulated in a table of over
eighty instances covering the whole range of the conditions where the
author gives his interpretation under the headings of 'Agent', 'Independent' and 'Consultation'. The number of question marks associated with
ticks in the first two columns indicates the difficulty of separating these
two functions.
(c) The third section of the Introduction is entitled 'Commencement and the
Final Stages' and consists of three 'flow charts'. The chart relating to the
commencement is comparatively straightforward but the two dealing with
the final stages 'Taking Over and Defects Liability' and 'After the Defects
Liability Period' make very clear the complexity of the provisions governing the end of the project and warrant close study.
(d) The fourth section of the Introduction, entitled 'Extension of Time,
Additional Payment and Notice', deals with the difficult questions which
arise under these headings. There is a discussion of the provisions in the
conditions and this is followed by two tables. The first one is headed
'Delaying Events - Time, Cost and Notice Provisions' and under the
headings 'Extension of Time', 'Cost', 'Notice' and 'Delay' it gives the
author's interpretation of the effect of the events listed. The second table
is headed 'Other Events Giving Rise to a Claim for "Additional Payment"'. Both these tables again, are of great assistance in clarifying the
effect of the various events set out in the provisions.
Book Reviews
305
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the scope of the author's dealing with the subjects. These are first, clauses 51
and 52 under the heading 'Alterations, Additions and Omissions', and second
clause 67 under the heading 'Settlement of Disputes'.
Mr. Corbett deals at length with the notorious difficulties that arise under
Clauses 51 and 52 in relation to the ordering of variations and the consequent
payment for them, and allows himself a certain terseness when he says 'When
referring to the draftsman's thinking, it cannot go unremarked that the
draftsman of the current edition appears to have done very little in this
respect. This particular problem has been notorious since at least the second
edition of this form and it is quite extraordinary that the opportunity has not
been taken to resolve this matter once and for all and thus bring to an end the
inevitable disputes that are generated by this uncertainty'.
Under the heading 'Measurement' the book deals with Clauses 55, 56 and
57, headed respectively 'Quantities', 'Works to be Measured', 'Method of
Measurement; Breakdown of Lump Sum Items'. Notwithstanding the fact
that the phrase 'Bill of Quantities' has replaced the historical 'Schedule of
Rates' it is made clear that a contract under this form is a remeasurement, or
measure and value contract, and not a lump-sum contract. (It is interesting to
note that the I C E Conditions deal expressly with two items which may cause
difficulties under F I D I C 4th namely the meaning of the phrase 'measured
net', and the question of dealing with lump sum items).
A lengthy commentary under the heading 'Settlement of Disputes' deals
with clause 67, of which 67.3 is the arbitration clause. A cogent point is made,
in the light of the current debate on arbitration generally .. . 'Overall, the
procedure does seem very protracted with a period of up to 30 weeks from the
reference to the Engineer until an arbitration may be commenced. Under the
I C C Rules, an award in less than a further six months is probably unlikely'.
So much for the speedy resolution of disputes!
Following the clause-by-clause commentary there is a valuable section
entitled 'Suggested Forms'. The key to this section lies in an introductory
paragraph 'The giving of notices at the correct time, addressed and copied
correctly and in an acceptable form is important in any construction or civil
engineering contract. This is not only because of the attempts by some
standard forms, including some clauses in the F I D I C Conditions to making
the giving of such notices a condition precedent to claims, etc., but also
because a correct form removes from the other parties an excuse for argument
or non-performance'. The forms set out are a veritable vade mecum for the
parties to the contract.
The comparison between F I D I C 4th Edition and 3rd Edition appears at
first sight to be difficult to follow as three different print types are used, but
this is remedied by the device of printing a KEY to the print types at the foot
of every page of the Comparison. Would that all technical works were so
helpful!
The Appendix covers F I D I C 4 T H Part II
Conditions of Particular
Application; Form of Agreement; Form of Tender; and Appendix to Form of
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Tender. In the Conditions of Particular Application there are a number of
useful Examples and Example Sub-Clauses.
The whole book is rounded off with a good Index, an essential part of a
lengthy technical work such as this.
This book is indeed, as claimed in its title A Practical Legal Guide. The range
and depth of the discussions throughout indicate not only the author's wide
experience of international civil engineering contracts but also his ability to
marshal argument in a clear and logical way. The price of £70.00 may seem high
in these hard times, but the book is indispensable to all concerned with international civil engineering contracts and I recommend it without reservation.
International D i s p u t e Settlement, (2nd Ed.) by P R O F . J . G. M E R R I L S .
Published by Grotius Publications Ltd, Cambridge, England (1991 xxlii and 288 pp.
incl. Preface. Tables of Cases, Treaties and Agreements, Appendix and Index).
Softback £19.50; US$39.
This is the second edition of a book first published by Sweet and Maxwell in
1984. The stated aims of the second edition are 'to provide an expanded and
up-to-date account of the techniques and institutions available to States for
the peaceful settlement of disputes'.
In the first four chapters the author deals with diplomatic means of settling
disputes i.e. negotiation, mediation, inquiry and conciliation. Chapters five,
six, and seven relate to arbitration and judicial settlement through the World
Court. Chapter seven is illuminating in the light it sheds on the work and
problems faced by the World Court in practice. In chapter 8 the settlement of
dispute in the context of a particular field of International Law is considered namely the 1982 Law of The Sea Convention. This choice is made specially to
illustrate the interaction between legal and diplomatic means of settling
disputes. Chapters nine and ten focus on the role of political institutions in the
settlement of international disputes - particularly the U N and regional
organisations. The final section is in a sense the concluding section titled
'Trends and Prospects'.
This is a lucid, generally well presented, scholarly and interesting treatment
of the subject of international dispute settlement. Gently it introduces the
reader to the myriad aspects of dispute settlement, whilst simultaneously
infusing the view with an evaluative orientation. This book would be of
interest to students and academics involved in International Law and
International Relations.
My reservations however are as follows. First, as a matter of presentation,
the sub-topics within chapters could be further well defined with more
sub-titles. Second, a more substantive point, the author does not deal with
specialised techniques of dispute settlement which have evolved in the various
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R. H. Mildred