FIDIC Books have been translated
By Rechtsanwalt Dr. Götz-Sebastian Hök
The current FIDIC standard form contracts, published in 1999, are English-language standard forms for different types of contracts originally inspired by the elder ICE Standards. It is obvious that there is a need in the construction industry for the FIDIC Conditions to be used in other languages when parties to a contract originate from countries with a shared language other than the English language or when the English language isn’t considered to be appropriate due to the fact that the contract’s applicable law isn’t the anglo-saxon common law. Unfortunately it can be easily proved that different language versions of one legal text can lead to different interpretations as that is already the case concerning the Vienna Convention on the international sales of goods or the Rome Convention on the law applicable to contractual obligations. Until now FIDIC forms of contract are almost exclussively discussed in the English language. The main and most important source for commentaries on FIDIC Conditions is still the International Construction Law Review (ICLR). Still English speaking authors do have the greatest authority concerning the interpretation of FIDIC Conditions. However, in recent years there is an increasing number of FIDIC authorities, books, papers and articles in other languages available than in English, for example:
Hök, Einstweilige Vollziehung von Dispute Adjudication Sprüchen durch Schiedsgerichte: Eine Besprechung der Entscheidung des High Court Singapore in Sachen PT Perusahaa Gas Negara vom 20.7.2010, ZfBR 2011, 523 ff.
Gökhan Erbaş (Dr. Hök), Uyuşmazlık Cözüm Kurulu (Dispute Ajudication Board) Kararının Uygulanması, Teratzi Hukuk Dergisi, Yıl 6, Sayı 56, Nisan 2011.
Hök, Zum internationalen baurechtlichen Schiedsgerichtsverfahren im Allgemeinen und nach FIDIC, ZfBR 2011, 107
Demblin/Mörth, FIDIC Bau- und Anlagenbauverträge, Wien 2013
In practice there is an obvious need for translations of the FIDIC Books. Public authorities sometimes wish to award contracts in their national language and English is not always the appropriate language for civil law contracts. Civil law and common law concepts are often quite different and the English legal language sometimes even does not provide a precise wording for some of the civil law concepts. By using the English language ambiguities and misunderstandings can arise, if and when civil law is applicable to the contract. German courts would look on the linguistic background of a contractual clause. But to the knowledge of the author there are no reported cases from other countries for such kind of court practise. Anyway, it might be wise to consider the following quoatation from Oliver Wendeel Holmes (a former US Supreme Court Judge):
A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.
In recent times several translations of FIDIC Conditions, 1999 Rainbow edition, have been published. For example there exist the following translations of the FIDIC 1999 Rainbow Edition:
Some of those translations are authorised by FIDIC, some are not. The German member of FIDIC, Verband Beratender Ingenieure - VBI, has published a German translation of the Rainbow Edition 1999 with commentaries from Dr. Götz-Sebastian Hök. A French translation, made by Dr. Götz-Sebastian Hök, has also been published by FIDIC. In addition German translations of the FIDIC White Book, the FIDIC Green Book and since 2013 also the Gold Book are available at VBI. However, it is obvious that even an accurate literal translation of a particular word can be inconsistent with the concept behind it. Each translation is therefore a kind of interpretation. Knowing this the parties should be aware of risks arising from translations. They should therefore refrain from making a contract in two languages.
In particular in the Gulf region and in Eastern Europe hybrid forms of translated FIDIC forms of contracts are in use, such as in Oman and in Qatar or in Poland and Russia. In Eastern European practice quite often very important FIDIC clauses become deleted or altered. Since 2010 also German scattered practice (for example in offshore contracts) seems to go this way. In various countries the Engineer´s powers will be put under restrictions and clauses referring to Dispute Adjudication Boards will become deleted. Sometimes the Engineer´s role has been fully deleted. FIDIC´s balanced risk allocation approach will particularily not be adopted in translated contracts due to a lack of understanding of the underlying English concepts. Thus,
translated FIDIC contracts should be carefully checked and evaluated as the balanced risk allocation approach of the original FIDIC document may have been altered or completely abondoned;
users of translated FIDIC Books should consider the risk of the use of it.
Every translation comes along with the interpretation of the English version. Legal terms can not always be translated. Frequently English legal terms can only be transcribed rather than be adopted literally because of the conceptual differences in the legal systems. It is therefore strongly recommended to become familiar with the original English version before reading and using any translation. For more detailed information see Jaeger/Hök, FIDIC for Practitioners, a book which has been published in 2010.
Unfortunately the use of translated FIDIC froms of Contract may cause further issues in terms of contract interpretation and enforcement of contract. In practice it is quite difficult to revert to the English version for the purposes of contract interpretation though only this can ensure a correct interpretation of FIDIC. Rather in practice users start a literal interpretation of the translated FIDIC version. Premature conclusions are likely to lead into a change of the intended risk allocation. Frequently users rely on FIDIC versions where the translator has chosen to translate the term "delay damages" (Sub-Clause 8.7) by the foreign term for "penalty". Since penalty clauses are enforceable in most civil law countries on the face of it such a translation does not cause problems. However penalties are unliekly to constitute a cap under civil law. Hence the employer might be entitled to additional damages provided he can show evidence for it.
In a summary it is strongly recommended to use FIDIC forms of Contract in English in order to avoid unexpected issues and prolonged debate and disputes. The English terms reflect particular experiences and should not be denatured.LAW OFFICE Dr. Hök, Stieglmeier & Kollegen
Contact: Advocate Dr.Götz-Sebastian Hök
Tel.: 00 49 (0) 30 3000 760-0
Fax: 00 49 (0) 30 3000 760 33
Dr. Götz-Sebastian Hök is an accredited FIDIC trainer (having trained people in Europe, Asia and Africa) being also a member of FIDIC Task Groups. He is currently the legal advisor of the Design & Build Subcontract Task Group, the ODB Task Group and of the Joint Venture Agreement Task Group. He is an assessed and listed FIDIC adjudicator (listed at the FIDIC President´s list and at the German VBI list) and an experienced arbitrator. He has been appointed to be a member of the Editorial Advisory Panel of the ICLR. Since 2010 he was a member of the JICA Study Team for the implementation of Dispute Boards. In 2013 he was elected to become a member of the Court of Arbitration of the German-Turkish Chamber of Industry and Commerce.