Originally from European International Arbitration Review (EIAR)

This article considers various ways of resolving disputes that arise from international construction contracts, providing an overview of dispute resolution mechanisms employed in international construction contracts ranging from dispute boards under FIDIC up to the use of international arbitral proceedings, with reference to both commercial arbitration and arbitration for the protection of investments.

1. Dispute Resolution Mechanisms under FIDIC International construction contracts, in contrast with other types of contracts, such as contracts for the international sale of goods, being governed by 1980 Convention of Vienna, are not disciplined by any international convention. Furthermore, EU Directives have not filled the gap in this lack of regulation resulting, in most cases, in multiple interpretations rather than establishing a uniform body of law.1 As a consequence, the main source of law governing international construction contracts is a set of general conditions of contract and standard forms drafted by various international organisations and companies. This process was initially defined as “transformation of contracts law by standard forms”,2 up to the more recent theory of “rules created by contracts”.3 The most commonly used general conditions of contract are those prepared by the Fédération Internationale des Ingènieurs-conseils (FIDIC), the hundred-years old organisation established in 1913 in Genève, with 75 federations adhering thereto, that represent over one million engineers.4 FIDIC conditions were originally drafted on the basis of the Institution of Civil Engineers standard forms, i.e. common law standard forms, whereas the last FIDIC publications were influenced in great part by civil law principles.