Sub-clause 20.1 of the FIDIC contract terms under civil and common law

Abstract

The purpose of the paper is to discuss the problems arising from the application of sub-clause 20.1 of the FIDIC contract templates in the civil and common law countries. For these considerations, the author chose the red and yellow book editions of 1999 in unmodified versions. The paper tries to determine whether it is possible to implement the sub-clause in their original wording in the above-mentioned legal systems. Another aspect under the scrutiny of the author is the legal nature of provisions of 20.1 sub-clause which concern, in particular, the issues related to the 28-day deadline for filing a claim and releasing the contracting authority from the obligation to provide compensation as a result of the Contractor's failure to meet the indicated deadline. The research was conducted using the legal-comparative method. With regard to the civil law system, the analysis concerned the compliance of the sub-clause provisions with mandatory standards, in particular Article 119 of the Civil Code, and Article 353¹ in conjunction with Article 58 of the Civil Code. When it comes to the common law jurisdiction, the study concerned the consequences of failure to comply with the obligation imposed by the sub-clause on the Contractor in the light of the prevention principle and on the basis of praemia that law does not arise from injustice. As a result of the conducted research, it was found that sub-clause 20.1 of the FIDIC contract terms requires prior modifications both in civil and common law countries and adaptation to the requirements of the law in force in the country in which it is to be implemented.