Means of mitigating the risks assigned to the contractor in the EPC contract: the experience of the International Federation of Consulting Engineers and Russian civil legislation

Abstract

The subject of the study is the legal conditions of mitigation (mitigation) of project risks, the bearing of which is assigned to the contractor by the terms of the EPC contract. One of the key features of the EPC contract, an agreement concluded for the implementation of an investment and construction project on a turnkey basis, is the maximum assignment to the contractor of risks associated with the failure to achieve the goals of the project. It is believed that the EPC contractor, as a professional and highly qualified representative of the construction industry, is able to manage project risks more effectively than the customer. The assignment of risk by the terms of the contract proforma to one of the parties implies the need to use organizational, economic and legal means to mitigate (mitigate) the burden of risk. This work is aimed at identifying civil legal means used by the contractor to mitigate the harmful effects of events and actions, the risk of which is assigned to him by the terms of the EPC contract and establishing the possibility of using these means in the conditions of the Russian legal system. Its achievement involves a comparative analysis of the model EPC contract - a model contract of the International Federation of Consulting Engineers for turnkey projects (FIDIC Silver Book 2017) and the norms of Russian civil legislation. В В В В В The results of the study indicate that it is possible in principle to apply the conditions of the 2017 FIDIC Silver Book, which establish means of mitigating the contractor's burden of bearing risks, in the conditions of Russian legislation, taking into account the following exceptions: (1) a security payment cannot be used as a means of mitigating the consequences of non-fulfillment by the contractor of a natural obligation; (2) compensation for property losses cannot be applied in the event of an unlawful claim by the customer for a guarantee of performance of contractual obligations provided by the contractor. The interrelated application of several civil legal means is aimed, ultimately, their application contributes to the achievement of the project goals, which is in the sphere of interests of both parties to the contract.