Evaluating the FIDIC's termination for convenience clause in General Conditions under common law in Iranian civil law system for Construction Contracts

Document Type : Research Article

Authors

1 Department of Civil Engineering, Science and Research Branch, Islamic Azad University, Tehran, Iran

2 Associate Professor of Department of Construction Engineering and Management, Faculty of Civil, Architecture, and Art, Science, and Research Branch, Islamic Azad University, Tehran, Iran

3 Center of Excellence on Soft Computing and Intelligent Information Processing, Department of Electrical Engineering, Faculty of Engineering, Ferdowsi University of Mashhad, Mashhad, Iran

Abstract

The Iran civil code is based mainly on the Egyptian Civil Law (ECL), which is itself derived from two principal sources like French civil law and Islamic law. On the other hand, the general conditions of contracts published by the Fédération Internationale des Ingénieurs-Conseils or International Federation of Consulting Engineers (FIDIC), which are based on common law principles and this standard form of contract, have been applied in large construction projects in Iran. Due to Iran's legal system is rooted in civil law, FIDIC forms of contract may face serious challenges. This research, through a comparative method, has analyzed the Egypt Civil Code (ECC) and Iran (as two members of the Islamic legal system) for better decisions in FIDIC-based contracts. Our study offers some strategies for modification of the FIDIC 1999 Red Book [FIDIC (CONS)] and also the Iran Civil Code for construction contracts, which are associated with the termination for convenience clause. Therefore, with a better understanding of the termination for convenience by the employer clause, which has been referred to in many contractual claims in arbitration centers and courts, can be prevented disputes. Moreover, this study is useful for other Middle East countries because most of them follow civil law jurisdictions.

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References

[1] P.L. Booen, The FIDIC contracts guide. Geneva: International Federation of Consulting Engineers,  (2000).
[2] S.A. Fawzy, I.H. El-Adaway, L. Perreau-Saussine, M.S. Abdel Wahab, T.H. Hamed, Analyzing termination for convenience provisions under common law FIDIC using a civil law perspective, Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 10(4) (2018) 06518003.
[3] D. Wallace, Hudson’s building and engineering contracts. 12th ed. London: Sweet & Maxwell.,  ( 2012).
[4] M.C. Loulakis, L.P. McLaughlin, Court reviews allowable costs in termination for convenience dispute, Civil Engineering Magazine Archive, 77(1) (2007) 96-96.
[5] A.S. Ezeldin, M. Abdel-Ghany, Causes of construction delays for engineering projects: An Egyptian perspective, in:  AEI 2013: Building solutions for architectural engineering, 2013, pp. 54-63.
[6] P. Merrill, Construction dispute review board+ settlement panels: Save time, money,+ headaches, Contract Management Magazine,  (2006) 38-43.
[7] Z. Ren, G. Anumba, O. Ugwu, Construction claims management: towards an agent‐based approach, Engineering, Construction and Architectural Management,  (2001).
[8] F.A. Pena-Mora, C.E. Sosa, D.S. McCone, Introduction to construction dispute resolution,  (2003).
[9] J.R. Cheeks, Multistep dispute resolution in design and construction industry, Journal of Professional Issues in Engineering Education and Practice, 129(2) (2003) 84-91.
[10] N. Rose, Boom and recovery: Understanding the Middle East construction market, in, 2009.
[11] J. Axel-Volkmar, H. Gotz-Sebastian, FIDIC: A guide for practitioners, Berlin: Springer,  ( 2010).
[12] H. Ajdari, N.A. Almasi, E.I. Pour, Comparative study of moral damage in Iranian and Egyptian law,  (2018).
[13] A. Souri, M. Jafari, A comparative study of violation of obligation between Iranian law and Egyptian law and British law, 1th international conference on law and jurisprudence, attorney and social science,  (2017). (in Persian)
[14] A. Naghibi, R. Makhsosi, A comparative study of the termination condition from the perspective of Imami jurisprudence, Iranian and Egyptian law, Razavi Islamic University of Science,  (2018) 5-20. (in Persian)
[15] M. Darabi, Comparative comparison of similar design and construction contracts in the executive technical system of Iran, 5th International project management conference,  (2010). (in Persian)
[16] N. Bagherian Marandi, M. Ravanshadnia, A. Heravi, H. Mehdizadeh, Identifying and prioritising factors impacting in court decisions for construction contract disputes, in:  Proceedings of the 12th International Congress on Civil Engineering, Ferdowsi University of Mashhad, 2021.
[17] Y. Bazgir, Elected votes of the supreme court on contracts,  (2010). (in Persian)
[18] M. Mohebi, M. Kakavand, Selected arbitral awards arbitration center of Iran chamber
1(2015). (in Persian)
[19] M. Mohebi, M. Kakavand, Selected arbitral awards arbitration center of Iran chamber 2(2014). (in Persian)
[20] N. Bagherian-Marandi, M. Ravanshadnia, M.-R. Akbarzadeh-T, Two-layered fuzzy logic-based model for predicting court decisions in construction contract disputes, Artificial Intelligence and Law, 29(4) (2021) 453-484.
[21] B.W. Totterdill, FIDIC users' guide: a practical guide to the 1999 Red and Yellow Books, Thomas Telford London, 2006.
[22] M. Shanab, Commentary on Muqawala contract, Cairo, Egypt: Dar El Nahda El Arabiya,  (1963).
[23] A. Al-Sanhuri, A treatise on civil law [Al-Wassit Fi Sharh’Al-Kanoun Al-Madani], Part 7, in, Dar El Nahda El Arabiya Publisher Cairo, Egypt, 1989.
[24] T. Hamed, Risk provisions in building and construction contracts: A comparative study between the Egyptian civil code and the FIDIC conditions of contract, Faculty of Engineering, Cairo University, 2010. (in Persian)
[25] E. Esmaili Herisi, Commentary on construction contracts laws, agreement and general conditions,  (2008). (in Persian)
[26] M.H. Samadi Ahari, Loss of profit Cannot be claimed,  (2007).
[27] H. Soltaninezhad, Specific Performance and its Barriers in Islamic Jurisprudence and Different Legal Systems,  ( 2017).
[28] A. Khairi Jebur, S.M.M. Qabuli Dorafshan , A. Ansari, Effect of violating the contractual obligations in emergence of the avoidance: A comparative study of Iranian law and some Islamic and western legal systems,  (2018). (in Persian)
[29] M.A. Nouri, Translation of Egyptian civil code, GanjeDanesh publications,  (2014). (in Persian)
[30] K. Abdollah, M.R. Falah, A. Tavallaei, The Jurisprudential and Legal Foundations of the Theory of Judicial Modification of Contracts in the Legal System of Iran and Egypt,  (2018).
Amirkabir Journal of Civil Engineering
Volume 55, Issue 3
June 2023
Pages 603-618

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