Updates on FIDIC Collaborative Contracts and ECI: Developments and Recommendations

Andrea Chao LLM Bird & Bird Updates on FIDIC collaborative contract and ECI 13:30 - 15:00

Updates on developments FIDIC Collaborative Contracts Task Group 17 Early Contractor Involvement a new model made available

For the terms of reference

Status last year Recommendation was prepared and a survey was launched During the conference last year we discussed the outcome of the survey and the general thinking Based on the outcome of the survey: we prepared heads of terms; heads of terms are subject to review by a.o. FIDIC's Contracts Committee This is unprecedented territory, to enable full internal review, we are currently preparing/finalising a first draft fully fledged collaborative contract

Where we stand Disclaimer: only reflects the current considerations of the TG17 & is subject to review & approval by a.o. FIDIC's Contracts Committee There is one overarching goal: a successful project What is exactly important per project will differ Considering interests of involved parties is key Model contract is more than just a legal tool Alignment between all involved parties is key Not one size fits all Flexibility Increased importance for contract data Building blocks Starting with & regularly going back to first principles Mind language & labelling Seeking to keep it short and simple: FIDIC Green Book 2021 is on many levels a source of inspiration

Where we stand Disclaimer: only reflects the current considerations of the TG17 & is subject to review & approval by a.o. FIDIC's Contracts Committee Through aligned bilateral contracts ensure the aligned involvement of employer & contractor, and subcontractors, supply chain, engineer & other advisors, etc. Involvement relates to: Integration of workstreams Flow of information Joint risk identification & management Joint decision making Communication Duty to warn & inform

Where we stand Disclaimer: only reflects the current considerations of the TG17 & is subject to review & approval by a.o. FIDIC's Contracts Committee Such alignment & level of involvement is not static but dynamic Not leaving parties behind where involvement is relevant (ie: where they need to be in the room) Not burning parties' time (everybody s time) when not relevant (ie: when they have nothing to bring or gain from being in the room) Good preparation is key Early involvement of the contractor (and any other parties as may be beneficial) Recognising the importance of post-delivery phase involvement & collaboration

Where we stand Disclaimer: only reflects the current considerations of the TG17 & is subject to review & approval by a.o. FIDIC's Contracts Committee Regarding behaviour: Focus on the overarching goal: a successful project SMART understanding to be 'deepened' by parties Transparency between all parties, regarding amongst others role, obligations & financial aspects Collaboration facilitated and incentivised Room allowed to tailor to project / party / practice specifics Interests of each involved party and the project recognised Regarding disputes: Focus on early identification & resolution of discussions

In use since 50s, latest model is now translated! link

Dutch ECI model DG 2020 Early Contractor Involvement (ECI) agreements are based on the premise that the agreement should cover more than just the legal aspect, and certainly the sociological aspect in particular. That is why agreements of this type are also referred to as "relational" or "collaborative" contracts. This means that in the ECI agreement itself and its implementation express consideration is given to the attitude and behaviour of the parties involved; in both good times and difficult times, in discussions and disputes. English translation of Dutch ECI model DG2020

thank you / d kujeme Andrea Chao Andrea.Chao@twobirds.com