Howard Kennedy (acquired Corbett & Co.)
14 Contributions by Howard Kennedy (acquired Corbett & Co.) Experts
PRACTICE NOTES
This Practice Note reviews termination by the Contractor under the FIDIC Red, Yellow and Silver Books 1999, the Gold Book 2008 and the Pink Book 2010. It does not consider any general right to terminate at law. In addition, the governing law of the Contract may influence how certain provisions operate. For discussion of the 2017 editions of the Red, Yellow and Silver Books, see Practice Note: FIDIC contracts 2017—termination by the Contractor...
Who can terminate?
Both the Employer and the Contractor may bring the Contract to an end. Clause 15 sets out the process for Employer termination, and Clause 16 sets out the process for Contractor termination. Termination is also addressed in the following:
Sub-Clauses 9.4, 11.4 and 19.6
Sub-Clause 10.7 of the FIDIC Gold Book
For guidance on termination by the Employer, see Practice Note: FIDIC contracts (pre-2017
Construction
PRACTICE NOTES
This Practice Note examines Employer termination under the 2017 FIDIC Red, Yellow and Silver Books. It does not cover any right to terminate at law. In addition, the Contract’s governing law may influence how certain clauses operate. For further detail on Employer termination in the pre‑2017 Red, Yellow and Silver Books, refer to Practice Note: FIDIC contracts (pre‑2017 editions)—termination by the Employer.
Who can terminate?
Both the Employer and the Contractor may bring the Contract to an end. Clause 15 prescribes the Employer’s process, while Clause 16 sets out the Contractor’s. The Employer may additionally terminate under Sub‑Clause 11.4 [Failure to Remedy Defects], and either Party may terminate under Sub‑Clause 18.5 [Optional Termination] and Sub‑Clause 18.6 [Release from Performance under the Law]. For termination by the Contractor, see Practice Note: FIDIC contracts 2017—termination by the
Construction
PRACTICE NOTES
This Practice Note examines the Engineer’s role under the FIDIC Red and Yellow Books 2017. For further detail on these forms, please see the Practice Notes: FIDIC contracts—introduction to the Red Book 2017 and FIDIC contracts—introduction to the Yellow Book 2017. The FIDIC Silver Book 2017 features an ‘Employer’s Representative’ rather than an Engineer and is outside the scope of this Practice Note (see Practice Note: FIDIC contracts—introduction to the Silver Book 2017). For guidance on the Engineer’s function under the FIDIC Red and Yellow Books 1999 and the FIDIC Pink Book 2010, consult Practice Note: FIDIC contracts (pre-2017 editions)—the role of the Engineer.
Who is the Engineer?
Under Sub-Clause 1.1.35, the Engineer is the person named in the Contract Data and appointed by the Employer to act as Engineer for the purposes of the Contract, including any successor appointed pursuant to
Construction
PRACTICE NOTES
This Practice Note examines termination by the Contractor under the FIDIC Red, Yellow and Silver Books 2017. It does not cover termination rights at law, and the governing law of the Contract could influence how certain clauses operate. For further detail on termination by the Contractor in the pre-2017 Red, Yellow and Silver Books, refer to Practice Note: FIDIC contracts (pre-2017 editions)—termination by the Contractor...
Who can terminate?
Either the Employer or the Contractor may bring the Contract to an end. The relevant procedures are:
Clause 15 for Employer termination
Clause 16 for Contractor termination
Sub-Clause 11.4 [Failure to Remedy Defects] for additional Employer termination rights
Sub-Clause 18.5 [Optional Termination] permitting termination by both Parties
Sub-Clause 18.6 [Release from Performance under the Law] permitting termination by both Parties
For guidance on Employer termination, see Practice Note: FIDIC contracts
Construction
PRACTICE NOTES
This Practice Note offers an overview of the FIDIC Conditions of Contract for Design, Build and Operate Projects 2008, widely referred to as the Gold Book 2008.
For what type of project is the Contract suitable?
The FIDIC Gold Book 2008 is a design, build and operate form (‘DBO’)—for general background on DBO arrangements, see Practice Note: DBO contracts. It presumes a greenfield design‑build‑operate model with a 20‑year operations and maintenance term. It is unsuitable for brownfield schemes, i.e. the enhancement of an existing asset. According to the FIDIC DBO Contract Guide (1st edition, 2011—issued by FIDIC), the Gold Book may suit infrastructure undertakings where the completed facility is expected to generate income or receipts for the Employer, and where the Employer may lack the capability or know-how to run the facility and might otherwise appoint a service provider or operator. It is
Construction
PRACTICE NOTES
This Practice Note provides an overview of the FIDIC Green Book 2021 (the Short Form of Contract), rather than a detailed clause-by-clause analysis. In December 2021, FIDIC released the second edition of the Green Book. For background on that release and the main changes from the first edition, see News Analysis: FIDIC Green Book 2021—what’s changed? For guidance on other documents in the FIDIC suite, see:
FIDIC contracts 2017 onwards—overview
FIDIC contracts pre-2017 editions—overview
For what type of project is the Green Book suitable?
The FIDIC Green Book is principally aimed at projects with a low perceived risk profile and/or where the parties want a straightforward form that does not demand substantial contract administration and management resources. Its scope is not limited to simple or repetitive works, short programmes, or low capital value projects. It stands as an alternative to the FIDIC Red or
Construction
PRACTICE NOTES
This Practice Note reviews the FIDIC Conditions of Contract for Construction 1999, often referred to as the FIDIC Red Book 1999. A revised Red Book was released by FIDIC in December 2017—see Practice Note: FIDIC contracts—introduction to the FIDIC Red Book 2017 for guidance on that edition. In relation to the 1999 suite, see also Practice Notes: FIDIC contracts—introduction to the Yellow Book 1999 and FIDIC contracts—introduction to the Silver Book 1999.
For what type of project is the contract suitable?
The FIDIC Red Book 1999 is recommended for building and engineering works where the Employer (or its representatives) prepares most, or all, of the design. It is not appropriate where the Contractor undertakes the design—in such cases the FIDIC Yellow or Silver Book should be used instead. Like the other FIDIC forms, the Red Book 1999 is intended for
Construction
PRACTICE NOTES
FIDIC Red Book 2017—reprinted 2022 with amendments
In December 2017, FIDIC released second editions of the Red, Yellow and Silver Books. Three years on, in December 2022, FIDIC issued reprints. The FIDIC Red Book 2022 reprint is formally titled ‘The Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer Second Edition 2017, reprinted 2022 with amendments’. It carries the same ISBN. The changes comprise:
the errata published in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published)
the additional errata issued in June 2019, and
further errata and fresh amendments made in November 2022 (stated to take effect from 1 January 2023), which FIDIC describe as ‘improvements & clarifications in response to industry feedback + to support the increased use of 2017 contracts’
There is no requirement to adopt the 2022 FIDIC reprints. Parties may still opt for the
Construction
PRACTICE NOTES
This Practice Note reviews the role of the Engineer under the FIDIC Red and Yellow Books 1999, and the Pink Book 2010. The FIDIC Silver Book 1999 and the FIDIC Gold Book 2008 provide for an ‘Employer’s Representative’ rather than an Engineer and therefore fall outside this Practice Note. Although, in the FIDIC Gold Book 2008, the Employer’s Representative broadly aligns with the Engineer’s function, the position under the FIDIC Silver Book 1999 is significantly different. For guidance on the Engineer’s role under the FIDIC Red and Yellow Books 2017, see Practice Note: FIDIC contracts 2017—the role of the Engineer.
Who is the Engineer?
The Engineer is “the person appointed by the Employer to act as Engineer for the purposes of the Contract and named in the Appendix to Tender, or another person appointed by the Employer from time to time and notified to the
Construction
PRACTICE NOTES
This Practice Note reviews the FIDIC Conditions of Contract for EPC/Turnkey Projects 1999, often referred to as the FIDIC Silver Book 1999. FIDIC issued a new Silver Book in December 2017, with amendments in 2022—see Practice Note: FIDIC contracts—introduction to the FIDIC Silver Book 2017, reprinted in 2022 with amendments, for guidance on that edition. For the 1999 suite, also see:
Practice Note: FIDIC contracts—introduction to the Red Book 1999
Practice Note: FIDIC contracts—introduction to the Yellow Book 1999
Practice Note: FIDIC contracts (pre-2017 editions)—Yellow and Silver Books compared
For what type of project is the contract suitable?
The FIDIC Silver Book 1999 is advised for delivering a process or power plant on a turnkey basis, and may likewise be adopted where one party assumes full responsibility for the design and delivery of a privately financed
Construction
PRACTICE NOTES
In December 2017, FIDIC released the second editions of the Red, Yellow and Silver Books. Three years later, in December 2022, FIDIC issued reprints. The 2022 reprint of the FIDIC Silver Book should be referred to as ‘The Conditions of Contract for EPC/Turnkey Projects Second Edition 2017, reprinted 2022 with amendments’, and it retains the same ISBN
The amendments comprise:
the errata published in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published)
the additional errata released in June 2019, and
further errata plus new amendments made in November 2022 (stated to take effect from 1 January 2023), which FIDIC describes as ‘improvements & clarifications in response to industry feedback + to support the increased use of 2017 contracts’
There is no requirement to use the FIDIC 2022 reprints. The Parties are free to select the original FIDIC 2017 books if they
Construction
PRACTICE NOTES
This Practice Note examines the FIDIC Conditions of Contract for Plant and Design Build 1999, widely referred to as the FIDIC Yellow Book 1999. FIDIC released a new edition of the Yellow Book in December 2017—see Practice Note: FIDIC contracts—introduction to the FIDIC Yellow Book 2017 for guidance on the 2017 edition. In respect of the 1999 suite, also consult Practice Notes: FIDIC contracts—introduction to the Red Book 1999, FIDIC contracts—introduction to the Silver Book 1999 and FIDIC contracts (pre‑2017 editions)—Yellow and Silver Books compared.
For what type of project is the contract suitable?
The FIDIC Yellow Book 1999 is recommended for supplying electrical and/or mechanical plant, and for building or engineering works where the Contractor undertakes the design. The FIDIC Yellow Book 1999 is not appropriate where the Employer performs the design—in that case, the FIDIC Red Book 1999 should be used instead. Like all forms in the
Construction
PRACTICE NOTES
FIDIC Yellow Book 2017, reprinted 2022 with amendments
FIDIC released the second editions of the Red, Yellow and Silver Books in December 2017. Three years on, in December 2022, it issued reprints. The 2022 reprint of the Yellow Book should be cited as ‘The Conditions of Contract for Electrical & Mechanical Plant and for Building and for Engineering Works, Designed by the Contractor Second Edition 2017, reprinted 2022 with amendments’, and it also carries the original ISBN.
The amendments comprise:
the errata published in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published)
the further errata released in June 2019, and
additional errata together with new amendments made in November 2022 (stated to take effect from 1 January 2023), which FIDIC characterises as ‘improvements & clarifications in response to industry feedback and to support the increased use of 2017
Construction
PRACTICE NOTES
This Practice Note reviews the Employer’s termination rights under the FIDIC Red, Yellow and Silver Books (1999), the Gold Book (2008) and the Pink Book (2010). For the 2017 editions of the Red, Yellow and Silver Books, see Practice Note: FIDIC contracts 2017—termination by the Employer...
Who can terminate?
Either the Employer or the Contractor may end the Contract. Clause 15 outlines the Employer’s procedure, while Clause 16 sets out the Contractor’s. Termination is also considered in Sub-Clauses 9.4, 11.4 and 19.6, and in Sub-Clause 10.7 of the FIDIC Gold Book. For more on termination by the Contractor, see Practice Note: FIDIC forms of contract (pre-2017 editions)—termination by the Contractor...
Termination by the Employer for cause
Grounds for termination for cause by the Employer
The Employer may terminate for cause, for convenience, or due to Force Majeure. Sub-Clause 15.2 sets out several bases on which the Employer can
Construction
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