国际工程项目管理与FIDIC合同应用实务解析.ppt

分包条款中：Pay when paid vs Pay if paid ，哪个更好？ Pay when paid的典型条款： The Main Contractor will endeavour (this is not to be considered as a guarantee) to pay to the Subcontractor s claims within 7 days after payment（from the Employer）to the Main Contractor of monies claimed on behalf of Subcontractor. 这种描述足以保护到了总包商吧！？ 法律上对上面条款的解读是“We will pay you when we have been paid”，但是业主没给总包商付款，并不能成为总包商不向分包商付款的借口，上游业主的不付款并不能成为对下游分包商不付款的前提条件，只是某 种程度上有利于总包商在时间上形成缓冲或拖延，而最终无法拒付这笔款项。除非是在业主破产的特定情形下，Pay when paid条款才可彻底拒付款项。 Pay if paid的典型条款： Payment will be made to the Subcontractor only after（if only） payment has been received by the Main Contractor. 法律上对此的解读是“If we are not paid you will not receive payment”，如果措辞明确严谨，就可以拒付款项，而不仅只是在时间上推迟付款。 Pay if paid条款确保了只有在总包商收到业主的付款后才会向分包商付款，这一点对在当地分包（指定当地分包）时尤为重要。由于标准FIDIC分包合同连Pay when paid这类条款都没有（而ICE分包合同属于Pay when paid条款），就更别提像pay if paid这种有权彻底拒付款项的条款了，因此建议实际操作上咨询或聘请高手律师起草并协助商谈好Pay if paid这类限定性的条款。 Engineer in Chief Date …… The Engineer Dear Sir, Re: Objection to the Nomination of a Nominated Subcontractor We refer to your Instruction No .…… dated ……. nominating…… for …… and regret to advise you as well as the Employer of our objection to this nomination pursuant to Clause 59.2 (Nominated Subcontractors; Objection to Nomination) (99版是Clause 5.2) of the Conditions of Contract on the ground that:- (a) The nominated firm will not enter into a subcontract with the same liabilities, obligations towards the Contractor which are imposed on the Contractor towards the Employer by the Main Contract. (b) The nominated firm will not indemnify the Contractor from and against any negligence by the nominated Subcontractor or his workmen and from and against any misuse by him or them of any 英文例函 constructional plant or temporary works provided by the Contractor. (c) The nominate Subcontractor is believed to have financial problems. (d) the nominate