New FIDIC Second Editions: revamped claims and dispute resolution provisions At the beginning of December 2017, FIDIC published its much-heralded Second Editions of the FIDIC Yellow, Red and Silver Books. The new versions contain extensive amendments and are an attempt to modernise the FIDIC form 18 years after the First Editions were released in 1999. The Second Editions contain new and altered provisions intended to help the parties deal with claims appropriately and promptly in order to avoid disputes as far as possible, and heavily revised claims and dispute resolution provisions, including an increased number of deeming provisions and time-bar clauses. The arbitration clause has been amended to provide for ‘one or three arbitrators’ appointed in accordance with the ICC Rules, whereas previously three arbitrators had been stipulated. There is no corresponding entry in the Contract Data for the Parties to identify whether one or three arbitrators are required. The intention appears to be that the ICC Court will decide the number of arbitrators to be appointed. This may have been thought necessary to avoid jurisdictional issues which can arise where the ICC Expedited Procedure applies, which requires the appointment of a sole arbitrator even where an arbitration clause stipulates three arbitrators. These changes will be significant for those engaged in international construction projects. Contractors carry the risk of impossible design FIn E.ON Climate & Renewables UK Robin Rigg East Limited v MT Højgaard A/S [2017] UKSC 59, the Supreme Court for the United Kingdom held that it is the contractor who carries the risk, if the contractor agrees to work to a design that renders the item incapable of meeting the criteria to which he has agreed. The foundation structures of two offshore wind farms at Robin Rigg in the Solway Firth, which were designed and installed by MT Højgaard A/S (MTH) for the applicant companies, E.ON., failed shortly after completion of the project. MTH denied liability for the failure because the relevant standard to which it was required to design and build the wind farms (J101) contained a material error and the contractual requirement that the wind farms have a lifetime of 20 years was inconsistent with the requirement to comply with J101. Overturning the decision of the Court of Appeal, and restoring the order made at first instance, Lord Neuberger (with whom the rest of the Supreme Court agreed) held that: • An obligation to design the windfarms so that they would have a lifetime of 20 years was not inconsistent with the obligation to comply with J101; • While each case turns on its own facts, the courts in similar cases have generally given full effect to requirements (the duty) that an item be produced to comply with prescribed criteria (ie, a lifetime of 20 years). It is the contractor who can be expected to take the risk of agreeing to work to a design that would render the item incapable of meeting the prescribed criteria; • In this case, compliance with J101 was clearly a minimum standard, and MTH had a duty to identify the need to improve on the design accordingly to ensure that the design was satisfactory to meet the prescribed criteria without maintenance; • The contracts did require the windfarms to have a lifetime of 20 years, although that requirement was only contained in the tender documents. The terms of the contract clearly gave the relevant part of the tender documents contractual effect.