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ARTICLE · 06 JUNE 2020

Practical Considerations Under FIDIC Contracts In Light Of COVID-19

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The outbreak of the coronavirus has been an unprecedented event affecting every industry, including construction. To ensure their entitlement to an extension of time, costs, or even termination,...

United StatesLitigation, Mediation & Arbitration
Ira M. Schulman
Ira M. Schulman
Natalia M. Szlarb
Natalia M. Szlarb
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The outbreak of the coronavirus has been an unprecedented event affecting every industry, including construction.  To ensure their entitlement to an extension of time, costs, or even termination, parties to construction contracts need to carefully review the contract provisions that allocate risks.  Below, we discuss a number of practical considerations that may arise under a standard form construction contract – such as the FIDIC Red Book – in light of the COVID-19 pandemic.

A. Is the outbreak of coronavirus a force majeure event under FIDIC contracts?

The COVID-19 pandemic qualifies as a force majeure event under the 2017 FIDIC Red Book.  Pursuant to Clause 18 of the Red Book, a force majeure event is an event that is (1) beyond the parties' control, (2) was not reasonably foreseeable, (3) could not reasonably have been avoided once having arisen, and (4) was not substantially attributable to either party.  While global pandemics are not specifically listed among

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