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consequences of note for industry users. First, point of view of a lawyer, it seems to me to
perhaps to propitiate the dissenters who represent a triumph of form over substance’.
remain loyal to the traditional model, a Notwithstanding criticism, NEC’s position
successor to the ICE forms has been published as an alternative approach to engineering
jointly by the ACE and the Civil Engineering and construction3 contracts looks
Contractors Association (CECA). The new unassailable and its influence is likely only to
suite, which includes Design and Construct, grow. Keating on NEC3, by this author and a
Measurement and Ground Investigation team from Keating Chambers, will be
versions, has been named the Infrastructure published by Sweet & Maxwell in May 2012.
Conditions of Contract.2 It too takes into
account the LDEDC Act amendments and so
FIDIC
can be regarded as ‘Construction Act-
compliant’. The ACE and CECA launched the A full appreciation of FIDIC developments
new suite on 1 August 2011, referring, must await the comprehensive review of the
presumably without intention of irony, to its ‘Rainbow’ suite understood to be moving
basis in the ‘highly successful ICE Conditions towards a new edition in 2013, which will be
of Contract’. FIDIC’s centenary year. It is sufficient for
Secondly, the withdrawal of the ICE suite present purposes to note the introduction in
has meant that the only form endorsed by October 2011 of the official 1st Edition of the
the Institution is now NEC3. Sub-Contract, for use with the 1999 Red Book
and Multilateral Development Bank (MDB)
version of the Red Book, sometimes referred to
NEC3
as the Pink Book. The formal launch of the new
There is no new edition of the New Engineering Sub-Contract is the conclusion of the process
Contract (NEC), the current 3rd edition begun by the introduction of the Test Edition
having been introduced in 2005. However, it in December 2009.
continues to command widespread attention,
not least because of its use on high-profile
Conclusion
projects, the most notable of which is currently
the London 2012 Olympic site. Nor mally, the life of standard for m
This has only been increased by its new construction and engineering contracts is
status as the sole contract endorsed by the characterised by the stability which is a main
ICE, as explained above. It had also been the part of their attraction. The last few months
sole contract endorsed by the Office of have been a period of almost unprecedented
Government Commerce (OGC) for public change in this respect in the UK. Practitioners
sector projects until the Arup Review at the who advise the industr y on choices and
end of 2008 also considered the merits for interpretation of contracts are having to adapt
collaborative contracting purposes of the to the features of the new landscape.
Project Partnering Contract and the JCT’s
Constructing Excellence form. It is still much
favoured in public sector circles and has also Notes
1 It should be noted in referring to ‘British’ or ‘UK’
been used by Sainsbury’s for its supermarket
forms that the Scottish Building Contract Committee
construction and internationally, for example, is a member of the JCT and is responsible for adapting
on Abu Dhabi’s Al Raha Beach Development. JCT contracts for use in Scotland and drafting Scottish
It is not the case that all the attention documents where required.
focused on NEC3, however, is adulatory. The 2 The infelicitous abbreviation to ICC opens up the
possibility of confusion with the Model Turnkey
unique ‘narrative’ style of the text, for
Contract for Major Projects of the International
example, clause 30.3, ‘[t]he Contractor does Chamber of Commerce.
the work so that the Condition stated for each 3 It should be noted that the title of the principal contract
Key Date is met by the Key Date’, continues to is the Engineering and Construction Contract; it is
trouble lawyers and, apparently, judges. In intended to be both.
Anglian Water Services Ltd v Laing O’Rourke
Utilities Ltd [2010] EWHC 1529 (TCC), Mr David Thomas QC is a member of Keating
Justice Edwards-Stuart in the Technology and Chambers in London. He practises in the UK and
Construction Court said that he had ‘[n]o internationally. His special areas of expertise include
doubt this approach to drafting has its construction, engineering, infrastructure, energy and
adherents within the industry but... from the technology projects.