Conference spotlights use of FIDIC contracts in Africa and the Middle East

11 May 2022

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The Official FIDIC Contract Users’ Conference (Africa and Middle East time zone event) took place online and was delivered in-house by FIDIC from 11-12 May 2022, writes FIDIC communications advisor Andy Walker.

The event, sponsored by international law firm CMS and supported by silver sponsors, risk mitigation consultants HKA and construction and energy law firm Fenwick Elliott, targeted the Africa and Middle East contract users’ community and offered a unique opportunity to share progress on the application and use of FIDIC contracts internationally and across the region and was attended by a range of stakeholders including MDBs, private sector organisations and clients, government, engineers, contractors, investors, consultants, and other stakeholders who have an interest in FIDIC contracts. 

Opening the first day of the conference, FIDIC CEO Dr Nelson Ogunshakin welcomed attendees to the event and thanked strategic partner sponsor CMS as well as silver sponsor Fenwick Elliott.

Addressing the event, FIDIC president Tony Barry said: “FIDIC places great importance on its contracts and the high regard in which these documents are held only serves to raise their profile even more and that is why FIDIC has looked to respond to that increasing interest by ensuring that we take steps to build up our contracts community by providing more opportunities for users to connect and network.

“We are seeing more and more organisations signing licence agreements to use our FIDIC contracts and this is helping to widen the use of these industry standard documents across the global construction sector. The licence agreements we have granted to organisations enable the contracts to obtain an even greater reach and a wider profile making them more accessible to users across the industry.”

Evolution of FIDIC contracts

The keynote speaker was FIDIC special advisor, Dr Nael Bunny of Bunni & Associates, someone with a vast knowledge of contracts and construction law and years of experience working in the industry. Bunni said that he was delighted and honoured to be speaking at the conference and gave a comprehensive and detailed overview of the historic development of FIDIC’s contracts and their use in the industry. “I have no doubt that the evolution of the FIDIC contracts will continue into the future as they are adopted by more users across the industry on a global scale,” he said.

First speaker at the conference, Jafar Khan, head of legal at Mott MacDonald Group, who gave an update on FIDIC contracts and spoke about the ongoing work of the FIDIC Contracts Committee. Khan also shared some experiences of using FIDIC contracts in the Africa and Middle East region, highlighting that FIDIC continues to be the “go to” standard contracts in the region because of its balanced approach, the fact that they have been developed by international in-house consultants and because of their familiarity in the industry. “One of the best things about FIDIC contracts is the way that they highlight the key role of the engineer on projects,” said Khan.

Khan also highlighted some of the common issues encountered with FIDIC contracts, which included dealing with and addressing fitness for purpose, engineer’s determination, liquidated damages and penalties, insurance, third party liability, termination, limits on variations and instructing variations.

Greening the FIDIC contracts suite

The next speaker, Adriana Spassova, partner at EQE Control OOD and FIDIC Contracts Committee member, spoke about some of the sustainability and net zero aspects of the FIDIC contracts. She made the point that sustainability was one the FIDIC founding principles adopted in 1913 alongside quality and integrity and highlighted that there were “many green provisions that have been developed for use in FIDIC contracts”. She made reference to many of these provisions and explained that users could also do a lot to green FIDIC’s sub-contracts.

Following Spassova’s comments, Mahmoud Abu Hussein, senior manager for procurement and contracts (UAE) at Dolphin Energy Limited, gave a presentation about the FIDIC Green Book Short Form of Contract, which he said was originally intended for fairly simple or repetitive works of relatively small capital value or short duration without the need for specialist sub-contracts.

Hussein highlighted that a new and updated second edition of the Green Book had been developed so that it was no longer dedicated to simple, short or repetitive works and was now intended to be an alternative to the 2017 FIDIC Red and Yellow Books for projects where the perceived level of risk is low and/or where the contracting parties wish to use a simple form that does not require significant contract administration and management resources. Hussein also explained some of the new features of the second edition to show how easy it was to use. “There are a host of user-friendly features which so how flexible the new second edition Green Book is to use in practice,” he explained.

Key issues highlighted in breakout sessions

Following the first conference session, there were three breakout sessions covering - the long-term effects of the Covid pandemic and other current crises on construction projects, Dispute resolution trends in the Africa & Middle East region and What makes a FIDIC contract a FIDIC contract?

“The effects of the Covid pandemic are likely to be affecting the industry for some time yet, but they are not the only challenges the sector faces at the present time, with price escalation and the ongoing ramifications of the war in the Ukraine,” said CMS partner Greg Sibbald speaking in the session on the long-term effects of the Covid pandemic and other current crises on construction projects. Naief Yahia, partner and head of litigation-Dubai at Al Tamimi and Company, agreed with Sibbald, saying that although the enduring effects of the pandemic might be fading, other challenges on the horizon will face the industry which will need to be addressed.

The other breakout sessions saw interesting discussions on the current dispute resolution trends in the Africa and Middle East region while the “What makes a FIDIC contract a FIDIC contract?” session highlighted the importance of using the FIDIC Golden Principles, which set out the essential characteristics and clauses of its general conditions of contract that should not be amended if the contract is to be regarded as a genuine FIDIC contract.

Day two of the Official FIDIC Contract Users’ Conference (Africa and Middle East time zone event) continues on Thursday 12 May 2022 starting at 10am CET.

Click here for details of the conference, including registration information.

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