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^ The cunent issue and full text archive of this journal is available atwwrv.emeraldinsight.com/1756- 1450'htmResponsiveness to changeby standard-form contr act draftersin the construction industrYA case study of the FIDIC White Booh

Shekar RajDeartment of Auil Engrceng, Indian Institute of Tecltttology Kanur,Kartur, India, andJan-Bertram Hillig and Will HughesSclnol of Construction Managetnent and Ettgrcet'irtg,Uniuersity of Readirtg, Reading, UK

AbstractPurpose - The purpose of this paper is to focus on the Fdration hrternationale desIngnieurs-Conseils FIDIC) White Booh standard form of building contract. It tracks the changes tothis contract over its four editions, and seeks to identify their undellying causes.Design/methodology/approach - The changes made to the White Booh are quantified usinga spec-ifc type of quaiitaiive content analysis. The anended clauses are then examined to understandthe nature of the changes made.Findings - The length of the contract increased by 34 per cent behveen 1990 and 2006. A largeproportion of the overall ircrease can be attributed to the clauses dealing rvith "conflict ofite'resticorruption" and "dispute resolution". hr both instances, the FIDIC drating committees haveresponded to intemational evelopnrents to discourage corruption, and to -encourage the use ofaltmative dispute resolution. Behveen 1998 and 2006, the aveage length of the sentences increasedslightly, raising the question of rvhether long sentences are easily understood by users of cortracts.Research limitations/implications - Quantification of text appers to be particularly useful forthe analysis of documents rvhich are regularly updated because changes can be clearly identilied andthe leng-th of sentences can be determined, leading to conclusiotrs about the readability of the text.Ilos'evr, caution is needed because changes of great relevance can be made to contract clausesrvithout actually affecting their length.Practical implications - The paper will be instructive for contract drafters and infornlative forrrsers of FIDIC's White Booh.Originality/value - Quantifying text has been rarely used regarding standard'form contracts in theleld of construction.Keywords Construction industry, fnb acts, Dispute resolutions, fmrptionPaper type Research paperL. Introduction1.1 OueruieuThe Fdr'ation Internationale des Ingnieurs-Conseils FIDIC) frrst publishedits Ctient/Consultant Model Seruices Agreenrct (the White Boole) in 1990.

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lntematoDal Jomal of LaN in theBuilt lnvironntent\ol. I No. 3. 2009pp.206,-2?!O Drnenld Group Publshing l,imitedl75Cll150DOI t0.l 1084756r.r509t lml26lThe authors rvould like to thank Mr Peter van der Togt, FIDIC Publications lttlanager, Geneva,for providing them with access to FIDIC documents for this research project.

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This standard-form contract between the client and the consulting engineer wasdrafted after editing and revising the document it was intended to replace, namelyFIDIC's International General Rules of Agleement (IGRA). The IGRA had beenpublished in three versions for different kinds of consultancy selices (IGRA 1979 forDesign and Supervision of Construction of Works, IGRA 1979 for pre-investmentstudies and IGRA 1980 for project management). In contrast, the Wte Bool issuitable for all the kinds of consultancy selvices encompassed by the three formerag'eements (see the foreword to the 2006 edition of. the Wltite Bool). Regarding theextent to which the White Booh is used in practice, the Danish InternationalDevelopment Agency (2004, p. 6) states, although without providing evidence, thatthe White Boolz, along with the World Bank document "Standard Request forProposal", is the main intemationally recognised document for contracting ofconsulting services.After its initial publication in 1990, revised editions of the Wltite Booh werepublished in 1991, 1998 and 2006. This paper reports on a study in which the foureditions were examined by quantifying the extent of changes. The aim of what was,in effect, a counting exercise was to track the changes made to the contract, and thento identify some of the underlying causes of those changes. The construction sectorhas seen many irnportant developments since the Wte Boole was first published, anclit is interesting to see rvhether the changes identified in the White Boole can be relatedto these developments. Also, analysing these changes against the backdrop ofimportant developments that have taken place in the construction industry will leadto some conclusions about the responsiveness of the drafting committee to thesedevelopments.1.2 Scoe of researclr tlrc general conditions of the White BooltThe subject matter of the present work is only the general conditions, i.e. the standardclauses of the WIte Boo. These were called "Standard fnditions" in the editions of1990 and 1991. The other parts of the agreement (the particular conditions, the fourappendices and any letter of offer and acceptance, see Clause 1.1. of the 2006 edition),have not been considered in the quantification.In this paper, we use the structure (and especially the clause nurnbering) of thefourth edition 2006 as the main point of rcference. This structure differs from that ofprevious editions. In the 2006 edition, the general conditions are divided into eightsections: general provisions; the client; the consultant; commencement, completion,variation and termination; payment; liabilities; insurance; and disputes and arbitration.For the purpose of this research, the two sections dealing with the client and theconsultant as well as the two sections covering insurance and liability are treated asone. Hence, we have only six sections (Section 3.1).1.3 The FIDIC draftittg conunitteesThe four editions of FIDIC's Wltite Boole were prepared by two different draftingcommittees. The editions of 1990, i991 and 1998 ivere prepared by FIDIC'sclient/consultant relationships cornmittee IDIC, 2001. Acknowledgements Section;see also FIDIC, 1998, p. 5). In contrast, the 2006 edition was drafted under theresponsibility of FIDIC's (2006, p. 5; and the Acknowledgements Section of the 2006edition of the Wite Booh) Contracts Committee.

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2. MethodThe primary method used in this piece of rvork is a specific t1'pe of quantitative contentanalysis. In this method, researchers establish a set of categories and then count thenumber of instances that fall into each category (Silverman, 2001, p. 123). Since thedata can be accurately measured it is a quantitative research method. This method isparticularly useful for the analysis of documents, which are regularly updated such asstandard-form contracts. One example of research work using this method has beenreported by Hilburn and Hughes (2005), who looked into the changes in the code ofconduct of the royal institute of British architects over different editions. Minorand major changes could be identified. It appeared that some of these changeswere responses to regulatoly pressures instigated by the British Govemment toderegulaie the profession of architects. For example, it appeared that some clauses ofthe code were omitted from one edition to the next in order to comply with statutoryrequirements. Elselvhere, Bunni quantified text to ascettain the length of sentences inrhe FIDIC's Conditions of Contract for Electrical and Mechanical Works 1987 (Bunni,1987, pp. I78, I94,195) and the number of sub-clauses in FIDIC's Red Bool 1999Bunni, 2005, pp. 503, 504). He used the data to draw conclusions about the clarity ofthe standard-form contracts.In the present research it was anticipated that the counting of words of the GeneralConditions of. the Wi.te Bool, over the four editions, would reveal hends towards orarvay from certain topics. 'With an understanding of these trends an attempt can bemade to look for the motivation behind the changes introduced.Regarding the counting itsell the following rules have been applied in order to besystematic about the process:. Everything outside the General Conditions has been excluded.. Marginal words and other headings have not been counted, as according toClause I.2.1 of. the 2006 edition of the White Boo these ought not to beconsidered while interpreting the clauses. Only the text of the clauses has beenconsidered for the counting of words.. Hyphenated words, for example "[. . .] vice-vetsa [. . ']" in Clause 1.2.2 of the 2006edition, have been counted as one word.. Words rvith a slash, for example "[.. .] and/or [. . .]" in Clause 4.4.1(b) of the 2006edition, have been counted as two words.. Terms such as "[. ..] Appendix 1 [...]" (Clause 1.1.1 of the 2006 edition) arecounted as t$'o words.. Some of the clauses have text containing altemate names for various appendicesin square brackets, for example "[. ..] Appendix | (Scoe of Seruices) [.'.]" inClause 1.1.3 of the 2006 edition. The words in such square brackets have not beencounted.. Figures such as "[. . .] 56 [. . .]" (clause 4.6.1 of the 2006 edition) are counted as oneword.As mentionecl above, this quantification providas a basis for examining why particularclauses of. the Wte Boole were amended. For this purpose the clauses have beenexamined, in the context of prevailing developments within the conshuction sector thatmay have led to the changes.

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Figure 1.Total number of wordsin successive White Bookeditions

3. Data3.1 Ouerall uord countA full word count of the different editions shows that the total number of words hasgrovi'r significantly, the 2006 edition having about 34 per cent more words than the1990 edition (Figure 1). There was no significant increase in the number of words in1991 but the 1998 and 2006 editions of. the Wtite Boohhad considerably more wordsthan the previous ones.Figure 2 shows the number of words in the different sections of the GeneralConditions. When compared to the first edition of 1990, the 1991 edition had almost thesame number of words under most headings, there being no difference at all or only atrivial difference of one or two words. The only sificant change was in thecommencement, completion, variation and termination section where there were 14more words in 1991. This was due to the addition of a second sentence in Clause 29which says that if the contract is terminated the provisions regarding the "limit ofcompensation and indemnity" (Clause 18) remain in force. The comparison of 1991u'ith 1998 reveals that significant changes were made only to the geneml provisionsand the dutes sections. All other sections were retained as before. In 2006, thenumber of words has gone up considerably in all sections. The details of these changeswill be described and discussed in the following sections of this paper.3.2 Chnnges in ndiuidual clnusesFigwe 3 tracks the changes in the individual clauses. The types of changes that havebeen made to each clause in successive editions can be seen.The 1990, 1991 and 1998 editions each have 44 clauses, in the same format,so comparing them is straighorward. In Figure 3, these three editions are displayed

5,0004,5004,0003,5003,0002,500

2,000r,500t,000

5000

1990: 3,458 words199 l: 3,480 words (less than I % increase)1998: 4,025 words (+ I 57o)2006: 4,638 words (+ I 6010)

r990 l99l 1998 2006

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l,000900800700600500400300200100

0

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Figure 2.Number of rvords undervarious headings of theGeneral ConditionsA - General provisionsD - Commencenrcnt, complclion,variation and tenninationB - Clicnt and consultantE - Paymcnt C - Liabilities and insuranceF - Dispute resolution

in the first three columns. The clause numbers of the 1990 edition are sho$'n in the firstcolumn. The second and third columns indicate the extent of changes made in the 1991and 1998 editions. For these editions, no clause numbers are shown because they werethe same as in 1990. The fourth and fifth colun'ns of Figure 3 perlain to the 2006edition. The new clause numbers of this edition can be seen in the fourth column wherecorresponding clauses (to the earlier editions) are identified. The fifth column indicatesthe extent of change made in 2006.Sorne of the changes which can be traced in Figure 3 ae dealt with in thesubsequent sections of this paper. Here, only three general obselations regardingFigure3 will be made. First, the 11 "minor changes" made in 1998 occurred because thetqm "Part II" was replaced by the term "the Particular Conditions" (which is one wordlonger); there were no other changes in these 11 clauses. These 11 changes accountforan lncrease of 11 words out of the total increase of 545 words. Second, in 1998significant changes (in Figure 3 identified as "R\4/: clause rewritten u'ith significantchanges") were made to only three out of the 44 clauses (Clause 40: conflict of interest;Clauss 43 and 44: settlernent of disputes); the other 30 clauses were reproduced exactlyas in 1991. The increase of 534 rvords while revising only tluee clauses signifres thatthe changes were extensive and probably irnportant. Regarding these three changessee Sections 3.5 and 4.2 (on conflict of interest/conuption and fraud) and Sections 3.6and 4.2 (on dispute resolution) of this paper. Finally, in 2006, as can be seen fromFigure 3, the changes made were more pervasive. Out of the original 44 clauses, onlynie rvere left unchanged rn'hile significant revisions rvere made to 16 of them. Otherclauses saw minor changes in wordings rvhile retaining the original meaning. Threenew clauses rvere added (Clause 1.3: communications; Clause 2.4: client's financialanangements; Clause 2.9: payment of services).

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3.3 Changes betuueen the third and fourth editiottsAs can be seen in Figure 4, the number of words has increased in rnany clausesbetween the 1998 and 2006 eclifions. h this figure the clauses are numbered on thebasis of the 1998 edition. The number of words of the (newly numbered) clauses of the2006 edition was counted for those clauses which conespond to the 1998 clauses. Ascan be seen in Figure 4, the most significant instances of increase are Clauses I(definitions), 2 (interpretation), 5 (duty of care and exercise of authority), 31 (time forpayment), 40 (conflict of interest/coruption and fraud) and 43 (settlements of disputes).Also, a large number of clauses show small changes in the number of rvords which area result of minor changes in u'ording of the clauses. Overall, 35 of the 44 clauses haveundergone changes, minor or major. An important point is that there were alsodecreaies in the nurnber of words in the 2006 edition, for exarnple in Clauses 4 (normal,additional and exceptiotral circumstances), 6 (client's prcperty) and 32 (cun'ency ofpayment). These omissions of text highlight the lirnitations of the word count rnethod:important deletions of text may not emerge in the data because the number of deletedu'ords ma)' be balanced out by an equivalent number of added words.Quing to rhe change of format in 2006 it is sometimes difficult to find clear-cutcorresponding clauses. At certain places it is easier to compare goups of clauses.Hence, in Figure 4, Clause 13 t'epresents Clauses 13-15 while Clause 23 representsClauses 23 and 24. For a list of the corresponding clauses etween the 1998 and 2006editions), see Figure 3.3.4 Cltntges regarding the general rouisiottsThe first three editions contained separate sections on "l)efinitions and intelpretation"(Clauses l and 2)and "General pt'ovisions" (Clauses 36-42). hi the 2006 edition thesesections have been fused to the new section entitled "General provisions" (Clauses1.1-i.10). In Table I, the nerv structure of the 2006 edition has been applied to alleditions, meaning that the words of the fotmerll' two sections of the 1990, 1991 and1998 editions have been added and their sums displayed under the label "Generalprovisions". These general provisious consist of clauses on definitions, intetpretation,ommunications, law and language, change in legislation, assignments andsub-contracts, copyright, notices, publication and conuption and fraud.

t7

100

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F-igure 4.The nurnber of rvords inthe corresponding clausesof the 1998 and the 2006editions2l93l

lrrrrt rroo6l:,

i il l:42 44

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Table I.Number of rvords in the"General provisions" andin the remainder ofdocument

The I per cent increase in the number of words in 1991 is due to addition of words tothe interpretation rules (Clause 2(iii) of the 1991 edition: plus six words).As indicated in Figure 2 and Table I, the number of u.'ords in the general provisionshas increased more significantly in 1998 and in 2006. The 13 per cent increase of 1998can be prirnarily attributed to the addition of 85 words to the clause dealing withconflict of interest (Clause 40; regarding this increase see also Sections 3.5 and 4.1). Theonly 61.r change between 1991 and 1998 relates to the definitions clauses: the numberof words in this clause increased by one word because the term "Part II" was replacedby the term "the Particular Conditions" (regarding this change see also Section 3.2).The largest increase occured in 2006 when the number of words of the generalprovisions grew by 24 per cent against the overall increase of 15 per cent (between 1998and 2006). This increase was due to several changes. Firct, in the 2006 edition, 15 termswere defined as opposed to only 11 in 1990, 1991 and 1998. Second, the interpretationlules had five sub-clauses and 100 words as opposed to three sub-clauses and 52 words.Third, the clause dealing with conflict of interest rr'as extended by 95 rvords. Fourth, anerv clause was inserted r'hich defines a language of communication (Clause 1.3; theIanguage is to be specified in the particular conditions). Finally, several minor changesoccuned in 2006.3.5 Clnnges of the clauses on "conflict of nterest/corrutiorz and fi'az"One area "r'ithin the general provisions section deals s'ith confficts of interest andconuption (Figure 5). Before looking at the number of words of the relevant clauses, anote should be made regarding their titles. In the 1990 and 1991 editions, Clause 40 wasentitled "fnflict of interest". In 1998 the title of Clause 40 was changed to "Conflict ofintereslcoruption and fraud" and in 2006 the conesponding Clauses 1.10 and 4.7 wererenamed to sirnply "Conuption and fiaud" (both clauses have the same title). Thesechanges of title point to major amendments which took place in 1998 and 2006, and thisnotion is confirmed by the increase in the number of rvords: rvhile the clauses dealingwith conflict of interest did not change between 1990 and 1991 - the clause beingretained exactly as in 1990 - the number of words nearly tripled in 1998, and anothersignifcant amount of text rvas inserted in 2006. For a discussion of these arlendments,see Section 4.1.3.6 Annges of tlu clauses on disute resolutionThe Wte Bool's section on disputes underwent a change of name between the thirdand fourth editions. It was entitled "Settlement of disputes" in 1990, 1991 and 1998 and"Disputes and Arbitration" in 2006. The respective clause numbers changed as well,from clauses 43 and 44 in the editions of 1990, 1991 and 1998 to Clause 8 in the 2006edition.

General provisions Number of wordsRest of the document Total1990199119982006

3I0 + 342:652316 + 341 :657 (+lo"o)3l? + 426:743 (+l3oto\414 + 507 :921 (*2406)2,862,823 (+lolo)3,282 (+160/0)3,717 (+73%)

3,4583,480 (+19)4,025 (*16To)4,638 (+15%)

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Conflict of Interest/Comrption and Fraud1990: 53 wordsI 99 I : 53 words1998: 138 words (+ 160%)2006:233 words (+ 69%)

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Figure 5.Number of words inclauses dealing rvithcoict ofiuterest/comption andfraud, conflict cfintereslcomrption andfraud

Figure 6 shows the number of words of the clauses dealing with disputes over the foureditions. As can be seen, the number of s'ords did not change in 1991: the Clauses 43 and,14 being retained exactly as in 1990. In 1998 the nurnber of words increased by more thanfotu'times, from 111 words to 560 rryords. In 2006, the clauses were expanded again butnot as dramatically as previously: the number of words increased by 64-624 (Fieure 6).The increases in the number of words in 1998 and 2006 sienify the focus on theseclauses while the White Booh was being edited. For a discussion of these changes seeSection 4.2.4. Discussion on the responsiveness of the contract draftersIn order to examine the responsiveness of the respective FIDIC drafting committeesresponsible for the White BooI (Section 1.3), two areas of the agreement are examinedin turn, namely the clauses regarding conflicts of interest and dispute resolution. Theseclauses have in common that their number of words has signifrcantly increased both in1998 and in 2006 (Sections 3.5 and 3.6 and Figures 5 and 6).4.1 Conflict of interest/comttiorz clnuseIn 1998, the clause dealing with conflict of interest (Clause 40) was completelyrewritten. Instead of simply stating that consultants have no interests in the projectother than those agreed, and that they have to refrain from activities conflcting with

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Figure 6.Number of words inclauses dealing withdispute resolution, disputeresolution

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600Dispute resolution1990: lll wordsl99l: lll words1998: 560 words (+ 405o/o)2006: 624 words (+ I l%)

I 998 2006

the interests of the client, the new Clause 40 of 1998 specifred several collusive practicesnot to be followed by the consultant. In addition, the remedies of the client werespecified: it was deemed that consultants who are guilty of one of the collusivepractices listed in the clause are in breach of their contractual duty of care, and thatthe client is entitled to terminate the agreement in this situation. In addition, the clausemakes clear that the remedies available to the client under the general law remainapplicable in addition to the contractual remedies.In 2006, when a new clause numbering was inhoduced to the contract, the remediespart of the clause was retained; this content can noq be found in Clause 4.7 of the 2006edition. However, the part on the collusive practices was completely rewritten (nowClause 1.10 of the 2006 edition). Among other things, the new clause specifrcallyobliges the consultant to adhere to the Organisation for Economic Cooperation andDevelopment (OECD) convention on combating bribery of foreign public officials, andthe consultant also has to notify the client immediately in the event of illicit requestsreceived from any 'ublic official", a term u'hich is defined in detail.lVhen examining the responsiveness of the FIDIC drafting committee regardingthe matter of conflict of interesVconuption, the international development needs to beanalysed. Construction processes are susceptible to corruption because of the hugeamount of money involved; this is aspecially true in the field of public contracting.Togivean examplethatillustrates the dimension, in themid-1990s theWorld Bankusedto lend over US$20 billion a year, of which some 25-30 per cent was spent on projectsinvolving procurement ofconstruction services flaynes, 1996, p. 17). Ifwe look at the

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developments which took place at the end of the last centuly, the following events cometo light in 1996 the United Nations (IN) general assembly adopted the UN declarationagainst corruption and bribery in international commercial transactions. In June i996the world bank announced revisions to its guidelines intended to guard againstconuption in procurement for projects it funds. In December 1996 the world tradeorganisation agreed to undertake a study of transparency and due process in the awardof govemment procurement contracts as a first step towarcls reducing corruption inthese markets. In November 1997 the OECD adopted a convention on combating briberyof foreign public officials in intemational business transactions. These facts shorvclearly that the fight against comrption was high on the international agenda in theyears prior to the publication of the 1998 edition of. the Wtite Bool.The major changesmade to tbe Wte Book in 1998 appear to be a direct consequence of this internationaldevelopment. This isconfirmedbya statement of FIDIC(2007,p.27), sayingthat the nerv"imposilions of sanctions" into the clause dealing rvith conffict of interest vvas an"answer to calls to eliminate conupt practices from the award and conduct of publicworks contracting". Hence, it can be concluded that the FIDIC drafting committee wasvery responsive to the international trend to discourage conuption.4.2 Disute resolution clauseThe increases in words in the dispute section of. the Wte Bool in 1998 and 2006 leadto the question as to what content has been added. The ansrver for 1998 is that FIDICinserted a detailed mediation clause (Clauses 43.2-43.8) rvhich addresses differentmatters, such as the priority of mediation over arbitration, the appointment of themediator and the confidentiality of the rnediation process, to name just a few. In 2006,a substantial amendment of the mediation clause led to the further rise in words of thedispute section. Examples of the amendments made were the following: new provisionswere introduced regarding the rnediation procedure (this rnatter was addresses for thefirst tirne: Clause 8.2.3 of the 2006 edition states that the mecliation shall be conductedin accordance with the procedure specified in the particular conditions; the CEDRmodel mediation procedure applies as a default) and the question of who pays themediator (the costs are to be borne equally by the parties, Clause 8.2.6). An importantamendment which also caused an inoease in words is the extension of the time periodduring which arbitration is prohibited: this period was extended from 28 days, from thestart of the mediation, to 90 days, from the giving of a mediation notice, Clause 8.2.7 of.the 2006 edition. An example of a decrease of words can be found in the rnediationclause as well: according to the 2006 edition of the Wte Boo, disputes no longer haveto be refen'ed to designated representatives of the parties as the first step of alternativedispute resolution (ADR), as ',/as provided by Clause 43.1 of the 1998 version. Thisdecrease in words is not visible in the data because of the extensive addition of text tothe mediation clause in 2006. At the same time, owing to this instance of decrease inwords, the ovemll increase in words of 2006 appears to be rather modest even though alot of new text has been included,On examining the responsiveness of FIDIC's contmct drafting committee it becomesclear that the insertion of the mediation clause in 1998 was a response to theintemational developments towards ADR. This is evidenced by a statement of FIDICrnade in 2001: "The 1998 version [. ..] provides for the interuention of a neutralmediator [.. .] before any matter is referred to arbitration. This reflects the general

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success achieved in curtailing the cost of dispute resolution when mediation is used"(FIDIC, 2001, p. 28). The international development in the direction of ADR can beillustrated by the following aspects: until the rnid-1990s arbitration and litigation seemto have been the popular methods of dealing with conflicts, as indicated by thefollowing: in the five ]'ear period from 1985 to 1990 the International Chamber offrnmere had 2,380 requests for assistance in arbitration and only 35 for conciliationor nediation (Tyrril, 1992, p.353). Not surprisingly the first and the second edition ofthe Wtzite Boo provided for arbitration as the only alternative if the client and theconsultant failed to agee on matters in dispute. However, despite their popularity,there was a growing dissatisfaction with these methods prirnarily due to the high costsinvolved ad the long time taken to reach a settlement.In a 1995 suruey covering some400 of The Tinrcs Top 1000 companies, a substantial majority (70 per cent) suggestedthat litigation takes too long a time and almost 40 per cent suggested that the costs oflitigation are far too high (Tlte Tinces,1995). There is also evidence of a stark increaseof ADR all over the world since the beginning of the 1990s: for example, in the USA, theadministrative dispute resolution act rvas passed in 1990 permitting federal agencies toresolve all types of disputes, including consh'uction disputes, by ADR. In January 1993the (British) National Joint Consultative Committee for Building (1993) produced itsguidance note on ADR. Also, a research project on dispute resolution conducted in thet||( indicated that instances of mediation were rising in the i990s while those ofarbitration and litigation were decreasing (Gould et a|,1999, pp. 126, 139). The interestin ADR was espeially stimulated by the potential to facilitate early settlernent ofdisputes which is both financially and emotionally advantageous to the disputants(Fiadjoe, 2004, p. 10).

In summary, the increase in the number of words in the dispute section, caused bythe insertion and expansion of a rnediation clause, illustrates a good level ofresponsiveness of the FIDIC drafting committee. Other organisations which publiststanclard-form conhacts have reacted much later, or not yet at all, to the trend towardsADR, even though the advantages of mediation are widell' accepted (reduced costs,protection of relationships, etc.). For example, the (British) Joints Conhact Tribunal(CT) waited until 2005 to insert a rnediation clause into its standard building con-tt:act(Clause 9.1 of JCT SBC 2005); the German standard-form conshuction contract VOB/B06 was extended in 2006 b]' a clause which provides that the parties can agree toresolve their disputes by other means than litigation (Clause 18(3) of the VOB/B: aparticular mode of dispute resolution is not mentioned in this clause but it seems thatthe drafters had mediation, and also arbitration, in mind). Furthetmore, the Britishconstruction contract NEC3, as published in 2005, still has no mediation clause.Finally, there seems to be a trend in consh'uction contracting towards theintroduction of procedural conventions on mediation in standard-foun conh acts, thereason being that mediation becomes more evaluative and adversarial @rooker, 2007,p.233).The mediation clause of the 2006 Wite Bool can be seen as at the forefi'ont ofthis trend because it provides detailed rules regarding the procedure of the mediationprocess, its confidentiality, and the costs of the mediator.5. Length of sentenceStandar condidons of contract are drafted using legal language which is expected toremain precise when subjected to legal scrutiny. Unforlunately, this may promote

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complexity and incomprehensibility (Bunni, 1987, p. 178). The results of a surveyamong the users of FIDIC's Rd Booh emphasised, among other things, the importanceof simplicity of expression (Flughes, 1996). In this context, it is interesting to examinethe length of sentences in the White Boole and the trends which can be recognised bylooking at the four editions.The average number of words in a sentence is 32 in the editions of 1990, i991 and1998. However, it increased to 34 in the 2006 edition. Further results of the examinationare presented as graphics in tu'o figures. Figure 7 shows the changes from 1991 to 1998and Figure 8 the changes from 1998 to 2006. The 1990 and 1991 editions are nearly thesame and this is why the changes from 1990 to 1991 have not been displayed in a graphic.The graphs for 1991 and 1998 are nearly the same except for the region of 40-60words. This is expected because, while most of the text is nearly the same in the twoeditions, many sentences of approximately this length have been introduced in theexpanded clauses dealing with disputes.As Figure I shows, in 2006 the proportion of sentences having 20-40 words declinedand the proportion of sentences having 60-90 words increased. Thus, sentences havebecome longer in the 2006 edition. Interestingly, as opposed to 1998, this change in thelength of sentences is not confined to select parts of the document; it is wide-ranging.

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Figure 7.The distribution ofnumber of rvords in asentence - 1991 and 1998

Figure 8.The distribution ofnumber of words in asentence - 1998 and 2006

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60 80 r00 t20Number of words in a sentence

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IJLBE1,3 6. ConclusionThe analysis of FIDIC's White Bool by means of "word count" brought severalfindings of rvhich the most important are highlighted:' The text of the General Conditions has gone up by 34 per cent over the foureclitions. While the inclease in words rvas trivial in 1991, significant increasesoccured in 1998 and 2006.. From all clausas, the ones on "conflict of interest/conuption" and "dispute resolufion"saw the most dramatic ino'eases in the number of words (in 1998 and 2006).. The amendments made to the clauses on "conflict of intereslcotruption" and"dispute resolution" show that the FIDIC drafting committees were quiteresponsive to significant developments and willing to align the standard-formconhact to cun'ent practices. Regarding the responsiveness to the cutrent trendto ADR, a comparison with other standard-fonn contracts shorvs that the FIDICdrafting commiltees of 1998 and 2006 were lnore responsive than other draftersof standard-form contracts; the Wte Book's mediation/albitration clauseappears as a model dispute clause in modetn contracting.. Sentences became longer between 1998 and 2006. The avemge length ofsentences increased from 32 words in the editions of 1990i1991/1998 to 34 rvordsin the 2006 edition.

The issue of length of sentences has only been touched briefly in this researcli. It isarguable whether sentences with 32 or more words represent a good sfyle. I\{ost slyleguides recommend much shortel'sentences because it is widely accepted that shortersentences al'e easier to understand. Bunni (1987, p. 178), for exatnple, points out(although without revealing a source) that sentences of 28 or more words can only be"easily and readily understood by 4 per cent of the population". We expressly suggestthe examination of "sentences length" and the effect of long/short sentences on thesimplicity and clarily of the document as an area of future work. A comparison ofdifferent standard-form conb'acts promises interesting results. Similarly, other aspectsshould be explored in order to establish "good contract langtage", for example the useof specifrc words and the rvay in which standard-fom contracts have been clarifiedfrom one edition to the other. In this regard, it would be useful to analyse the changes inthe language of. the Wlzite Bool because FIDIC made a lot of efforts to increase theclarity and reduce the risks of misinterpretation of the clauses. This can be concludedfrom FIDIC publications. For example, it rvas stated in the 2001 guide to the WziteBooh that the puqrose

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extrapolating from various theoretical perspectives, many of which were incompatiblewith each other: record of a business deal, plan for the effect of contingencies byallocating risks, management procedures manual, agenda for litigation, industryreference point. Apart from responding to changes in custom and practice, changesmay be designed to address one or other of these conhact functions. Clarity in draftingwill not only help users to avoid litigation, because their duties are clear, but will alsohelp to keep the expense of litigation down, for the same reason.A final point to note is that short sentences and a clear language are not the onlyfeatures of a "good contract style". There are many more aspects to be considered, forexample the transparency of the contmct's risk allocation (N.8. the new developmenttowards contractual risk registers), or the fact that contracts always have to be read "iuconnection with the underlying national law of contract". The latter aspect means thatthe clearest written contract will never give a clear picture of the legal situation to areader who is unfamiliar with the underlying conhact law. The best example of thisproblem is that most standard-form construction contracts (such as the ones of FIDIC,JCT, ICE and NEC) do not mention any "claims for breach of contract", i.e. (if thecommon law applies) general damages and the principles regarding the assessment ofdamages such as compensation, causation, remoteness of damages and mitigation.However, the issue of "length of sentences" should not be neglected by contractdrafters, and therefore the research method of counting words, as applied in thisresearch, is an important piece in the jigsaw of "what makes a good contract?".ReferencesBrooker, P. (2007), "4n investigatior of evaluative and facilitative approaches to consbuction

mediation", Structural Su.ruey, Vol. 25 Nos 314, pp.220-38.Bunni, N.G. (1987), "The liability and insurance clauses of the FIDIC form for electrical andmechanical works", International Construction. Lau Reuiew, Vol. 4 No. 3, pp. 172-95.Bunni, N.G. (2005), The IIDIC Forms of Contract,3rd ed., Blackwell, Oxford.Danish International Development Agency (2004), Samle Standord Tender Document forLarger Conxtllancy Contracts: User's Guile, available at: wrvw.urn.dkNR/rdonlyres/61C84750-7628-4F19-807C-651149010869/0/UsersGuideConsultancyVer2.pdf (accessed14 October 2008).Fiadjoe, A. (2004), Allernatfue Disute Resolution: A Deueloiug World Persecliu, Cavendish,London.FIDIC (1998), "The FIDIC annual report (1997-1998), draft version of 13July 1998", FdrationInternationale des Ingnieurs-Conseils, available at: u'wrv.ficlic.org/resourc/annrep98.pdf (accessed 26 September 2008).FIDIC (2001), TI Wtile Book Guide,2nd ed., Fdration Internationale des Ingnieurs-Conseils,Lausanne.FIDIC (2006), Tlrc FIDIC Annual Reort (2005-2006), Fdration Internationale desIngnieurs-Corseils, draft version available at: \nvw.fidic.org/resources/representation/annuah'evierv/annrep06.pdf (accessed 4 October 2008).Gould, N., Capper, P., Dixon, G. and Cohen, M. (1999), Disule Resolution fu tlw Constructianhustry: An Euahtion of Brilish Practice, Thonas Telford, London.Hilburn, H.D. and Hughes, W.P. (2005), "Regulating professions: shifts in codes of conduct",in Khknen, K. and Sexton, M. (Eds), Proceedings of C182005, Cotnbittg Forces:

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