Is the Engineering and Construction Contract Legally Less Competitive than the Red Book in Civil Law Countries?

Abstract

In many construction projects, standard forms of contract are an essential part of the contractual documents. They are preferred by construction parties for the advantages they present including reducing drafting time and costs. The International Federation of Consulting Engineers (FIDIC) and the New Engineering Contract (NEC) forms prepared by the London Institution of Civil Engineers are among the most popular standard construction contracts. In comparison with the other FIDIC contracts, the Conditions of Contract for Construction (the Red Book) is most used, and within the NEC forms, the Engineering and Construction Contract (ECC) is the most frequently used form. Both the Red Book and the ECC have their roots in common law jurisdictions. However, the former contract is widespread in civil law countries, whereas the latter is not. Several possible reasons for this difference can be studied. This paper is devoted to investigating whether the provisions of the ECC are less compatible than the provisions of the Red Book with the relevant mandatory statutory provisions and judicial jurisprudence of the United Arab Emirates, the civil code of which shares many similarities with the respective codes of other civil law countries. The investigation is instituted on the doctrinal research method and the results, which are documented in this paper, show that the ECC does not contain more contradictions than the Red Book with the aforementioned mandatory statutory provisions and judicial jurisprudence. Accordingly, it would appear that such contradictions do not explain why the ECC is not prevalent in civil law countries.