THE AUTHOR:<\/strong> On 23 March 2026,\u00a0De Gaulle Fleurance<\/strong><\/a>\u00a0hosted a conference following the release of \u201cThe FIDIC Conditions of Contract and Domestic Construction Law: A Guide for Global Dispute Resolution.\u201d The discussion aimed to explore the interactions between FIDIC\u2019s harmonised provisions and national construction law from both civil and common law traditions. Moderated by Ms\u00a0Anne-Laure Gosset<\/strong>\u00a0(Vice President of Legal and Compliance at Alstom for the AMECA region), the panel was composed of contributors to the FIDIC Guide: Mr\u00a0Pierrick le Goff<\/a>\u00a0<\/strong>(Partner at De Gaulle Fleurance), Mr\u00a0L\u00fatsen de Vries<\/strong><\/a>\u00a0(Partner at Stauch), Mr\u00a0Friedrich Rosenfeld<\/strong><\/a>\u00a0(Partner at\u00a0Hanefeld<\/a>) and Ms\u00a0Laura Azaria<\/a> (<\/strong>Partner at\u00a0Lalive<\/a>).<\/p>\n\n\n\n Ms Gosset opened the discussion and invited the panellists to identify the applicable liability regime under national law for FIDIC contracts.<\/p>\n\n\n\n Speaking from the French legal perspective, Mr le Goff emphasised the importance of contract qualification. Where a contract is characterised as a contract for works, it falls under a different statutory liability regime than the one applicable to a contract of sale. This determines which statutes of limitation are relevant or whether a statutory liability for hidden defects is applicable, for example.. Therefore, practitioners should always ensure parties agree on the contract qualification.<\/p>\n\n\n\n Mr Rosenfeld then provided a comparative insight from German law, where clauses are treated as standard terms (Allgemeine Gesch\u00e4ftsbedingungen) when they are pre-drafted for repeated use and imposed by one party. This triggers specific rules on their validity and interpretation. Interpretation is subject to the contra proferentem rule, so if a clause remains unclear after interpretation, it is read against the party who drafted it. He added nonetheless that according to recent developments in the German Supreme Court cases, some effects of these rules may be limited in certain situations, without affecting the validity of the arbitration agreement.<\/p>\n\n\n\n Mr Rosenfeld also highlighted the uncertainties surrounding the starting point of liability and the commencement of the Defects Notification Period. Under German law, defects liability is generally triggered upon acceptance, at which point the contractor is deemed to have fulfilled its obligations, subject to a continuing duty to remedy defects. By contrast, under FIDIC and in line with common law approaches, liability typically shifts upon the issuance of the Taking-Over Certificate.<\/p>\n\n\n\n Mr de Vries then outlined the implications of contractual classification under Dutch law. He explained that, in commercial relationships, certain liability rules, although protective by nature, may be contractually excluded between professionals. By way of example, he noted that a contractor\u2019s liability for defects can be limited where the employer could reasonably have identified the defect at the time of delivery.<\/p>\n\n\n\n Ms Azaria then provided essential clarifications in light of the reform of the Swiss Code of Obligations, which entered into force for contracts concluded as of 1 January 2026. She explained that, prior to the reform, parties enjoyed broad contractual freedom to adjust the liability regime. While this remains unchanged for movable works, the reform introduces two new mandatory provisions for immovable works and movable works incorporated into immovable property.<\/p>\n\n\n\n First, with respect to defect notification, she noted that defects must now be reported within a fixed sixty-day period, which cannot be contractually shortened. This replaces the previous requirement to notify each newly discovered defect within a few days. Second, the statute of limitations period has been extended from two to five years and may no longer be reduced to the detriment of the employer.<\/p>\n\n\n\n Ms Gosset then invited the panellists to address limitation of liability issues. Mr le Goff explained that, under French law, there are no major obstacles to the validity of overall limitation of liability clauses or clauses excluding liability for consequential losses, as provided under FIDIC. He nevertheless recommended that parties clearly define what they understand by \u201cconsequential losses\u201d in their contracts, as this notion is not recognised as such under French law.<\/p>\n\n\n\n Ms Azaria then addressed the oversight exercised by national courts over FIDIC provisions, focusing on delay damages. She noted that the key issue under Swiss law lies in their legal classification, namely whether they qualify as penalty clauses or as liquidated damages. Where delay damages are characterised as penalty clauses, the agreed sum is payable irrespective of the actual loss. By contrast, if they are treated as liquidated damages, Swiss courts retain the power to reduce them, albeit on an exceptional basis, as confirmed by the Swiss Supreme Court.<\/p>\n\n\n\n Building up on the distinction between penalty clause and liquidated damages, Mr Rosenfeld referred to a recent decision of the German Federal Court of Justice (15 February 2024), which set a threshold for penalty clauses at five percent of the contract value. Beyond this limit, such clauses are to be considered invalid.<\/p>\n\n\n\n Turning to current challenges, Ms Gosset then addressed recent crises such as the shortage of electronic components and armed conflicts through the lens of force majeure.<\/p>\n\n\n\n Providing a legal framework, Ms Azaria outlined the conditions under which an event qualifies as force majeure under the FIDIC conditions, as well as the remedies available. She explained that the event must be beyond the parties\u2019 control, unforeseeable at the time of contracting, and impossible to avoid or mitigate. Where these conditions are met and proper notice is given, the contractor may be entitled to an extension of time, recovery of costs, or, in certain cases, termination of the contract.<\/p>\n\n\n\n Ms Gosset complemented this analysis with practical insights from her experience in the AMECA region, noting that in times of crisis, parties often show greater flexibility and a willingness to cooperate beyond their strict contractual obligations.<\/p>\n\n\n\n Addressing French law on the related topic of hardship, Mr le Goff observed that the FIDIC framework does not include a hardship clause. In such cases, the French doctrine \u201cth\u00e9orie de l\u2019impr\u00e9vision\u201d, as embodied in article 1195 of the French civil code, will be applicable to provide relief unless the parties have expressly excluded the applicability of this civil code provision.<\/p>\n\n\n\n The discussion then turned to the final topic, namely the interaction between FIDIC provisions and dispute resolution aspects under national laws. Mr le Goff noted that, in practice, the choice of French law often goes hand in hand with the designation of France as the seat of arbitration. He then indicated that France takes a flexible stand on the extension of the arbitration clause to non-signatory parties, especially if they have been involved in the contract negotiations or in key decisions affecting its performance.<\/p>\n\n\n\n Following a Dutch approach, Mr de Vries added that, while the general rule requires a notice of default, Dutch law recognises situations where default arises automatically, unlike under FIDIC. He also referred to a decision of the Dutch Supreme Court (20 January 2023), which marked a significant development by confirming the enforceability of agreements to mediate.<\/p>\n\n\n\n Mr Rosenfeld concluded by emphasising that enforceability ultimately depends on clearly defined conditions, leaving no room for ambiguity.<\/p>\n\n\n\n This article was originally published in PBA Bulletin on 17 April 2026, as part of a special edition curated by Paris Baby Arbitration (PBA)<\/a>, in collaboration with Jus Mundi <\/a>and Jus Connect<\/a>.<\/p>\n\n\n\n
Elisa Gueye<\/strong>, Master 2 International Law Candidate at the University of Bordeaux<\/strong><\/p>\n\n\n\n
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As part of Paris Arbitration Week 2026, Paris Baby Arbitration (PBA)<\/a><\/strong>, in collaboration with Daily Jus<\/a><\/strong> and Jus Mundi<\/a><\/strong>, brings together contributions in a special edition of PBA Bulletin<\/a>,<\/strong> sharing reflections and perspectives from across this year\u2019s events.<\/em><\/h4>\n<\/blockquote>\n\n\n\n
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