국제건설계약에서 시공자 책임제한법리－FIDIC 계약조건을 중심으로－

Abstract

International standard forms of construction contract such as FIDIC, ENAA and ICC are intended to be used not in a specific jurisdiction but in a worldwide scale. In principle, therefore, such standard contracts must use neutral terminologies which practitioners from both civil law and common law countries can have common understanding about. Unfortunately, however it seems not possible to achievesuch a target in reality. In the article, the author will be addressing the contractor’s limit of liability under the well-known international standard form of construction contract, FIDIC, comparing the relevant clauses of ENAA model forms when it appears necessary. The contractor’s limit of liability mainly comprises the exclusion of consequential damages or indirect damages from the contractor’s liability and putting a ceiling on the contractor’s total liability, including respectively putting a ceiling on the delay liquidated damages and performance liquidated damages. This should be a narrow way one understand the contractor’s limit of liability. If one understands the concept of the contractor’s limit of liability in a broad way other clauses such as force majeure, defects liability, transfer of risks or unforeseen physical conditions can be regarded as the mechanism to limit the contractor’s liability as well. FIDIC is based on the International Civil Engineers form of United Kingdom, so it can be said that FIDIC is the contract form which has a common law origin. The common law lawyers are quite familiar with the concepts of consequential damages and indirect damages. There are some countries among civil law countrieswhich do not have the concept of consequential damages or indirect damages. What would happen if the construction contract which has adopted FIDIC provides the governing law as the law of the country which does not recognize consequential damages or indirect damages? In addition, there is a striking difference between common law and civil law with respect to the liquidated damages. Under the common law, it is not allowed to impose a penalty on the contractor as liquidated damages. It should be a reasonable pre-estimate of possible damages in case of delay attributable to the contractor, while the courts in civil law countries usually have the discretion to reduce liquidated damages if the courts determine it to be unduly excessive compared to actual damages. Under FIDIC Yellow and Silver Book, the contractor will be released from delay liquidated damages once it satisfies the minimum level of performance criteria at the Test on Completion. However, the performance liquidated damages is to be determined on the Test after Completion which occurs sometime after Test on Completion. This is quite different from usual practice in the EPC Turnkey projects that performance liquidated damages is determined at Test on Completion as well. The logic of FIDIC behind this is that there is too much involvement by the owner during the performance test stage, so it would not be fair and reasonable to impose delay damages on the contractor during the performance test stage. It is a big negotiation point between the contractor and the owner to determine which kinds of liabilities are included when calculating the ceiling of the contractor’s total liabilities. For example, the contractor’s defect liability is usually included into the contractor’s total liabilities cap, while financial institutions are reluctant to include defect liabilities into the contractor’s total liabilities cap. The study on the international standard form of construction contract requires inevitably a comparative research between common law and civil law. In addition, even the countries which belong to the same legal system differ from country to country. There may be some mistakes in my article due to difficulties inherent in such a comparative legal research. The author expects subsequent studies on the topic to rectify any possible error and mistake in the article.