Dear network,
Lars Stuckert, Advodan, has been kind enough to write the following, which is certainly relevant to consider.
The tunnel under the Fehmarn Belt. As a supplier to the Fehmarn Belt Contractors I/S (FBC) and Fehmarn Link Contractors (FLC) consortia, there are a number of things your company should keep in mind.
Tunnel construction is underway. FBC has started work on building a supply harbour and FLC has followed suit with the construction of the factory that will cast the tunnel elements.
Advodan Lolland-Falster has advised companies on supplier contracts in connection with the tunnel construction.
As a client, you should be aware of the contractual basis used by the consortia. The language is English and the contract is structured with an overall contract that refers to a number of standard annexes as terms and conditions. The standard annexes may include a Non-Disclosure Agreement, General Conditions of Purchase, Requirements for Subcontractors and Suppliers and Suppliers Code of Conduct.
Depending on the specific contract and the specific services to be provided, other appendices may also be included, including the tenderer's offer and descriptions of the supplier's services, quality, quality assurance, etc.
There are a large number of standard terms and it is recommended that suppliers take a critical approach to these standard terms. The supplier should review the standard terms to ensure that the company can comply with the conditions and requirements contained in the appendices. For example, according to the Code of Conduct, the supplier must comply with the CSR rules used by the consortium. As a supplier, you must carefully review the standard terms and conditions and, in connection with this, consider the choice of law, jurisdiction, limitations of liability, liability, etc. The standard terms and conditions are generally designed to protect the consortium's interests and contain obligations that can be legally and financially burdensome for the supplier.
In specific contracts, choice of law and jurisdiction may mean that a case must be brought before a foreign court and under foreign law (international law). The standard terms and conditions may also contain a number of warranties that increase the supplier's liability, and without limitations of liability, potentially large and burdensome claims may be involved.
The supplier should also check whether the consortium has insurance cover or whether the supplier must take out the necessary insurance itself in the event of damage, delay and risk of claims, including indirect losses. It is recommended that the supplier attempts to be released from the latter via an agreed limitation of liability with the consortium.
In the preliminary reviews carried out by Advodan Lolland-Falster, it can be seen that the current contracts for the tunnel construction are under "development" and it must be expected that the contracts will be continuously adapted.
Advodan Lolland-Falster is happy to assist with reviewing the contract and associated documents.
Lars Stuckert, tel. +45 30 78 87 44, lstu@advodan.dk
