fidic的应用（FIDIC红皮书解析1-1）

FIDIC条款为FIDIC编制的《土木工程施工合同条件》的简称，也称为FIDIC合同条件FIDIC条款结构严密，逻辑性强，内容广泛具体，可操作性强FIDIC于1999年出版的四种新版的合同条件，是在继承了以往合同条件的优点的基础上，在内容、结构和措辞等方面作了较大修改，进行了重大的调整，我来为大家科普一下关于fidic的应用?下面希望有你要的答案，我们一起来看看吧!

fidic的应用

FIDIC条款为FIDIC编制的《土木工程施工合同条件》的简称，也称为FIDIC合同条件。FIDIC条款结构严密，逻辑性强，内容广泛具体，可操作性强。FIDIC于1999年出版的四种新版的合同条件，是在继承了以往合同条件的优点的基础上，在内容、结构和措辞等方面作了较大修改，进行了重大的调整。

FIDIC合同一直是众多国家和多边银行经常使用的国际工程承包合同范本。特别是中国工程承包商常见的《施工合同条件》（Conditions of Contract for Construction），简称“新红皮书”。该文件推荐用于由雇主或其代表——工程师设计的建筑或工程项目，主要用于单价合同。在这种合同形式下，通常由工程师负责监理，由承包商按照雇主提供的设计施工，但也可以包含由承包商设计的土木、机械、电气和构筑物的某些部分。

但是由于FIDIC合同写作和翻译问题，许多合同条款表达不清，很多内容未进行系统性描述，实际操作中争议性很大，因此如何较为准确地理解FIDIC合同是本文介绍的重点，特别是从合同法的角度，借助国外一些知名律所对FIDIC内容的诠释而进行交流学习。

FIDIC Conditions of Contract For CONSTRUCTION for Building and Engineering Works Designed by the Employer First Edition 1999

首先是第一章 总则

GCC Sub-Clause 1 General Provisions

Summary

Clause 1 sets out many of the boilerplate clauses within the Contract and provides a number of definitions which are used thereafter. The Clause has been substantially changed from the Red Book 4th edn with a raft of new clauses added.

Sub-Clause 1.3 deals with communications and states that approvals, certificates, consents and determinations shall not be unreasonable withheld or delayed.

The assignment provisions in Sub-Clause 1.7 have now changed so that restriction on assignment applies to both the Contractor and Employer.

Delayed Drawings and Instructions is dealt with at Sub-Clause 1.9. This was previously dealt with at Clause 6.4 of the Red Book 4th edn and it is unclear why such an important provision has now been rolled up in the General Provisions clause.

Sub-Clause 1.1 Definitions

主要定义

The definitions appear throughout FIDIC 1999. The definitions are important with regard to the Parties’ obligations, insurance and ownership rights. The purpose of the definitions section is to ensure that there is consistency in the interpretation of the obligations of the parties.

The introductory words of the definition section state that words indicating persons or parties include corporations or other legal entities, except where the context requires otherwise. The main significance of this change is that the Engineer can now be a company.

Sub-Clause 1.1.1 – The Contract

合同的定义

“Contract” – the definition lists the different documentation making up the Contract in the same order as the order of the priority of documents contained at Sub-Clause 1.5. There is also provision for further documentation to make up the Contract, as further documents can be included in either the Contract Agreement or in the Letter of Acceptance. FIDIC中合同的概念并不是那简单几页Contract Agreement,而非包含了技术规范、图纸和合同条件等所有内容的宽泛概念。可以简单理解为，所有签字盖章的文件综合。

合同协议

“Contract Agreement” – an example of the Contract Agreement is contained within the Forms, found at the end of FIDIC 1999. The Contract Agreement can also include further documentation which will then form part of the Contract and therefore it is important that any further documentation is recorded correctly and easily identifiable. The use of the words “if any” within the definition reflects the fact that the Parties, naturally, may opt out of the need for a Contract Agreement should they wish. The Contract Agreement is reviewed in greater detail within the commentary on Sub-Clause 1.6 [Contract Agreement].

中标通知书

“Letter of Acceptance” – the Letter of Acceptance will only be construed as an acceptance if it is accepting the Letter of Tender and is signed by the Employer. As with most signed documents one must undertake some due diligence to ensure that who is signing the document on behalf of the Employer has the authority to do so. “It is important to ensure that the Letter of Acceptance matches the tender or, if there have been subsequent negotiations, an amended version of that tender. Otherwise, the Letter of Acceptance would be more like a counter-offer which would require a further acceptance from the Contractor before a contract was formed”

The importance of the drafting of the Letter of Acceptance is further heightened by the fact that it is second only to the Contract Agreement in the priority of documents contained at Sub-Clause 1.5. The Contract Agreement should be reviewed in detail to make sure that it does not change any of the terms and conditions contained in the Letter of Acceptance (unless of course this is the intention) as if there is any discrepancy between the 2 documents the Contract Agreement will take priority.

The Letter of acceptance also acts as a trigger for the timings of certain activities. These are as follows:

Sub-Clause 1.6 [Contract Agreement] – the Contract Agreement must be entered into within 28 days after the Contractor receives the Letter of Acceptance

Sub-Clause 4.2 [Performance Security] – the Contractor shall deliver the Performance Security to the Employer within 28 days after receiving the Letter of Acceptance

Sub-Clause 8.1 [Commencement of Work] – unless otherwise stated in the Particular Conditions the Commencement Date shall be within 42 days after the Contractor receives the Letter of Acceptance

Sub-Clause 14.7 [Payment] – the Employer shall pay to the Contractor the first instalment of the advance payment within 42 days after issuing the Letter of Acceptance or within 21 days after receiving the documents in accordance with Sub-Clause 4.2 [Performance Security] and Sub-Clause 4.2 [Advance Payment], whichever is the later.

Three of the four timings referred to above are dependent upon receipt of the Letter of Acceptance by the Contractor, perhaps a slightly trivial point but the Employer should most certainly ensure that the Contractor acknowledges receipt of the Letter of Acceptance, so that there are no arguments as to the date of receipt which will in turn affect the timings referred to above.

中标通知书是对承包商报价的确认，中标通知书是后期一系列工作的前提条件，包括合同签订、保函、开工等。

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