Claims for Extension of Time and Additional Payment under Common Law FIDIC: Civil Law Analysis

Abstract

Lately, Egypt has been at the forefront of multiple megaconstruction projects and the same trend is expected to continue in the future. Since such projects are mainly carried out by international contractors, the associated construction contracts mainly use the standard conditions of contract for international projects published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC). The FIDIC is based on legal concepts rooted in the common law system, whereas the legal doctrine that Egypt follows is founded upon civil law principles as mandated by the Egyptian civil law (ECL). Therefore, employers, contractors, international financing organizations, engineers, and lawyers, who use FIDIC in Egypt, need to understand the interpretation of the FIDIC provisions against a civil law background. This paper uses a multistep interdependent desktop research methodology to investigate the application of the general provisions of extension of time and additional payment of the FIDIC Conditions of Contract for Construction–Red Book 1999, i.e., FIDIC (CONS), in the context of ECL. To do so, provisions of extension of time and additional payment were studied separately under the FIDIC (CONS), and similarly under the ECL. Consequently, the authors conducted a comparative analysis to recognize similarities and differences between both FIDIC (CONS) and ECL. Finally, the authors identified gaps and requirements for successful application of FIDIC (CONS) under ECL. The analysis reveals that the ECL does not provide clear procedures and mechanisms regulating the contractor’s entitlement to extension of time and/or additional payment. Accordingly, it is recommended to add a new, three-part article to the ECL as well as to amend the first two paragraphs of Subclause 2.1 in the FIDIC (CONS). It is envisaged that this research would help stakeholders in the construction industry, entering into projects based on the FIDIC (CONS) in Egypt, to properly manage time provisions and the associated delays and risks leading to additional payment in the construction contracts. This should help minimize, as much as possible, disputes associated with and/or resulting from the delays and claims for extensions of time and/or additional payment. Since most of the Middle East countries follow civil law jurisdictions, and are most heavily influenced by the ECL, it is also envisaged that this research would support effective and efficient contract administration of construction projects in the ME region.