By: Rey I. Madroño
(Construction-Contracts Lawyer & Engineer)
IntroductionThe Civil Code of Qatar, Law No. 22 of 2004 took effect on 30 June 2004. This relatively new law is a variant of the Civil Code of Egypt with modifications but majority of the provisions on Obligations and Contracts under the Egyptian Civil Code are retained with minor changes under Law No. 22.
Of particular interest under Law No. 22 of 2004 are new sets of articles that are not found under the Egyptian Civil Code. Peculiar only to Qatar Civil Code is Part III -Chapter I of the Code which deals exclusively on Contracts Concluded on Work. Chapter I is divided in two sections where Section One prescribes the General Rules on Contracting and Section Two prescribes the Provisions Pertaining to the Contracts of Buildings and Constructions. In all, there are twenty four (24) special articles devoted exclusively by the Code to address major issues concerning contracting of Works.
Contracting practices in Qatar, especially over government projects administered by the Public Works Authority (PWA), follow the same contractual practices prescribed under FIDIC suits of Contract. The PWA’s General Conditions of Contract (GCC) is a variant of FIDIC Red Book 1987 Edition where separate roles of the “Engineer” and the ”Engineer’s Representative” are distinctly provided.
While the FIDIC 1987 Red Book underwent revision with the release of its 1999 edition that removed the concept of “Engineer’s Representative”, PWA’s GCC underwent minor revisions in May 2007 but maintained the same concept of “Engineer” and “Engineer’s Representative”.
However, other than the PWA, private project owners in Qatar regularly adopt PWA’s General Conditions of Contract and use the same contract document in their relationship with contractors albeit unmindful of the distinct provisions under the GCC that are peculiar only to PWA. One example of these distinct provisions is the concept of the ”Engineer” who, although fully defined in scope and authority under the FIDIC Red Book, is without defined duties and responsibilities under the GCC. This distinction will be discussed in detail under this book, with its legal effects against applicable provisions of Law No. 22.
Among others, this book will endeavour to re-examine important provisions of the GCC against universally observed doctrines and principles of law governing contracting works which now found permanency under the Civil Code of Qatar. With a view to provide additional guide for all parties who share common interest in construction and engineering works, this book is primarily dedicated.
Chapter I
Historical Background on Contracting Principles
The mother of all Civil Code, the Napoleonic Code, which finds influence from France to Spain, to Egypt, to the Philippines and Thailand in Asia, and now in most parts of the Middle East such as Kuwait, UAE and now Qatar, have codified systems of rules of conduct essentially based on established customs, traditions, practices, principles of good faith, fair play and good dealing. The elementary principles behind these rules of conduct regulate the rights and obligations of the parties to a contract. Some of these elementary principles that regulate rights and obligations include: good faith, laches, estoppel, force majeure, pacta sunt servanda, to name a few.
Historically, the immediate parties to a contract in a Contract Concluded on Works are simply the Employer or obligee and the Contractor or obligor. The Employer engages the services of the contractor to perform the works, and the contractor binds himself to execute the works for a fee. Within the period of existence of this symbiotic relationship, either party become, in the eyes of the law, creditor or debtor and for which distinct rules of conduct are similarly put in place under the Code. This is the basic symbiotic arrangement for which relationship of the Employer and Contractor is regulated by law since time immemorial. Nothing much has changed in the character of the parties in the eyes of the law but so much has changed in the character of the works and the players necessary to accomplish the works.
During the era of the great industrial revolution came the specialists whose services are viewed as necessary in order to properly carry out the Works. These include Quantity Surveyors, Supervising Engineers, Planners and Design Consultants. Suddenly, there was a compelling need to contractually address the participation of these specialist, but regulating the participation of these specialists require complex contract documents, thus emerged contract forms such as the RIBA (Royal Institute of British Architects), FIDIC (Fédération Internationale des Ingénieurs-Conseils), ICE (Institution of Civil Engineers), JCT (Joint Contracts Tribunal) and NEC (New Engineering Contracts) and all revisions and variants of these forms.
Due to general patronage and wide usage, these forms have become “standard” and, against legal and critical reviews, each one claims success in patronage over the other. One thing is certain however, most forms are couched and developed under the contracting practices of commonwealth countries and against the backdrop of common law rules and court decisions. Although similarly applicable in civil law jurisdictions, some adjustments in the Clauses of these standard forms must be effected to adjust to the Civil Code and civil law practices and to local customs and traditions.
With great influence by these forms, the history of contract documents for Contract Concluded on Works evolved from otherwise simple bilateral Employer-Contractor relationship to complex multiparty agreements to include the obligations of the specialists. With the basic purpose of accomplishing the Works for the Employer, these contract documents are unwittingly couched oblivious to the basic tenets of res inter alios acta (matter between others or outside of the agreement) and of good faith resulting in disputes that forever strain the relationship of the parties.
One common flaw in these standard forms of contracts is the practice of framers to define an item by enumeration in gross disregard of the basic principle expressio unius est exclusio alterius (express mention of one thing excludes all others). The wealth of decisions from both civil and common law jurisdictions gave clear imprimatur on the universal observance of this rule.
Several provisions of these contracts are already in conflict with the Civil Code. The same observations are echoed in UAE but it is the Civil Code that is under criticisms in Dubai for being inconsistent with these contracts and not the other way around. It is unfortunate that common law practitioners would rather retain their familiarity with the ”standard” forms of contracts than adjust clauses to suit the mandate of the Civil Code.
While contracts have the force of law between contracting parties following the basic tenet pacta sunt servanda (which is now enshrined in Article 171 of the Civil Code of Qatar), there is no argument that provisions of the Civil Code will always prevail over contract clauses. The problem lies when a clause ordinarily permissible under common law is being forced into the parties with Civil Law jurisdiction without appropriate adjustment of pertinent contract clauses. This problem, as adverted above, is already observed in Dubai since those presently shaping the legal and jurisprudential future of UAE on contractual issues are lawyers with common law backgrounds. UAE Civil Code has not flourished in judicial precedents, a sad fate of the Civil Code, because of preference by most parties to arbitration, again a common law feature dominated by common-law practitioners. Even public works authorities in Dubai succumbed to arbitration. This is not the case of Qatar where PWA’s GCC prescribes judicial action over contract disputes.
Against precautionary warnings from the framers of these standard forms of contract, a better approach to management of a standard common law contract would be to adjust clauses to suit the provisions of the Civil Code. Along this line, it is most appropriate that the contract commonly observed in Qatar, the PWA’s General Conditions of Contract, be re-examined against the Civil Code so that appropriate changes may be introduced by those who desire to adopt the General Conditions of Contract as governing contract document in their projects.