Legal Considerations on the Application of FIDIC Red Book 2017 in Construction Projects in France

Abstract

In France, the Public Procurement Code governs public construction contracts, and the standard form of public construction contracts shall be applied when parties enter into the contract. The parties cannot freely arrange the conditions and the terms of contract. Private construction contracts are subject to the French Civil Code along with the principle of Freedom of Contract. As a result, the parties are free to agree and determine whatever contract terms they prefer according to interests that they deem appropriate. This article examines exclusively the private construction contract in which the contracting parties mutually agree to adopt FIDIC Red Book 2017 as their contract agreement. The study shows that several important clauses under
FIDIC Red Book are different or incompatible to public order (mandatory provisions) under French law. These clauses include the following issues: a.) direct payment to the nominated subcontractor by the employer b.) warranty and construction defects, and c.) termination due to contractor’s bankruptcy or insolvency. In this regard, these
specific provisions shall be deemed unenforceable. The parties must therefore adjust their relevant contract terms by taking into account of French mandatory contract law.