Country updates Construction Law International July 2018

Transcription

1 Country updates Construction Law International July 2018 Ukraine The role of consulting engineers in construction projects in Ukraine Dr Svitlana Teush Redcliffe Partners, Kyiv Dr Lukas Klee Klee Consulting, Prague Roger Ribeiro Currie & Brown, Paris The evolving approaches to the concept of neutrality of consulting engineers under the FIDIC contracts The concept of independent professional control and supervision of construction projects is gaining ground in Ukraine, and is increasingly used to ensure efficiency and quality of construction projects. During Soviet times and the years following, control and supervision functions were the traditional remit of State authorities, who often also acted as employers and contractors. Currently, the state monopoly of construction is gradually becoming a thing of the past in Ukraine. The Euro 2012 football championship offered a good opportunity for Ukraine to improve roads, stadiums, water supply and sewage, solid waste treatment, district heating, hotels, airports, and the related infrastructure. FIDIC Forms of Contracts (Red Book and Yellow Book, 1999 editions, as well as the 2010 Multilateral Development Bank Harmonised Edition known as the Pink Book ) were used for various

2 construction projects. For example, the FIDIC Red Book was used for the construction of Kyiv-Odesa road and in several other road projects. The FIDIC Yellow Bookwas used for several major infrastructure projects, including the Beskyd tunnel, the Dnipro metro and the Chernobyl new safe confinement. A recent example also includes the national electricity system operator, JSC Ukrenergo, which, for the first time in its history, began to order the construction works under the 1999 FIDIC Yellow Book, used in a series of projects funded by KfW (Kreditanstalt für Wiederaufbau) to perform the complex upgrade and raise the energy efficiency of the power substations in the context of the integration of the Ukrainian power system in the European System of Transmission Network Operators for Electricity (ENTSO-E). Another important trigger for the recognition of consulting engineers role has been the 2014 signing of the European Union-Ukraine Association Agreement, which became effective on 1 September This improves the outlook for liberalising and opening up the Ukrainian market and integrating Ukraine in the European regional setting, as well as implementing the European approaches to the procurement of construction projects, quality control, project management and delivery of projects. The Engineer is a central figure under most forms of FIDIC contracts, 1 including the Red Book, Pink Book and Yellow Book. A dilemma around the consulting engineers has traditionally been how to reconcile the duty of impartiality (or neutrality as called in the 2017 editions of FIDIC contracts)of a consulting engineer, where required by the nature of its duties, and the fact that the engineer is appointed and paid by the Employer. The relevant terms used in the different editions of the FIDIC contracts have lacked precision and consistency, and encompassed different approaches. The 1987 Red Book and Yellow Book provided for in Sub-Clause 2.6 (Engineer to Act Impartially) that: whenever, under the Contract, the Engineer is required to exercise his discretion taking action which may affect the rights and obligations of the Employer or the Contractor, he shall exercise such discretion impartially within the terms of the Contract and having regard to all the circumstances. This raised a number of practical issues as every action of the Engineer could affect the rights and obligations of the parties. The concept of impartiality was then replaced by the concept of fair determination encompassed in the 1999 FIDIC Red Book and Yellow Book, which allowed some dualism and a split approach, depending on the nature of specific functions performed by the engineer. In particular, Sub-Clause 3.1 (Engineer s Duties and Authority) of the 1999 Red Book and Yellow Book stated that the Engineer shall be deemed to act for the Employer, while under Sub-Clause 3.5 (Determinations) the Engineer shall consult with each Party in an endeavour to reach agreement. If

3 agreement is not achieved, the Engineer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances. This can improve the situation for consulting engineers, particularly in civil law jurisdictions, including Ukraine, where the concept of agency would be more common. However, the wording is not crystal clear and raises concerns, for example, as to what extent the engineer can apply its past experience in similar projects. 2 A new concept of neutrality has been introduced in the FIDIC contracts issued in Under Sub-Clause 3.7 (Agreement or Determination) of the 2017 Red Book and Yellow Book, the Engineer must act neutrally when exercising its duties under this Sub-Clause. The meaning of neutrality is not expressly specified. The Guidance to the 2017 Yellow Book suggests that...when acting under this Sub-Clause the Engineer treats both Parties even-handedly, in a fair-minded and unbiased manner. Furthermore, to reinforce the concept, it is expressly stated that the Engineer is not required to obtain the Employer s consent before it exercises its authority under Sub- Clause 3.7 (Agreement or Determination). In Ukraine, consulting engineers have typically been involved in international construction projects governed by the FIDIC conditions of contract funded by the international financial institutions (IFIs) and procured under the international procurement rules of these IFIs. In 2017, an attempt to use FIDIC contracts within the framework of the public procurement rules was made in a project funded by State Enterprise Ukrainian Sea Ports Authority (USPA). The USPA announced tenders for the performance of construction and reconstruction works on berths, berthing fronts and other port infrastructure facilities and performance of required dredging and reclamation works. The USPA declared, amongst other things, that the international standards of control should be applied in the process of construction. It was considered whether the FIDIC contracts could be used (namely, the Blue-Green Book, or the Form of Contract for Dredging and Reclamation Works ). This arose due to a number of international companies that expressed their interest in this tender, including Royal Boskalis Westminster NV (the Netherlands), DEME NV (Belgium), Rohde Nielsen A/S (Denmark), Van Oord (the Netherlands), Jan De Nul Dredging and Maritime Management SA (Grand Duchy of Luxembourg), and so on. However, this idea was waived, not least because of the constraints of the public procurement procedures. In recent years, the concept of neutrality or independence of consultant engineers has begun to evolve in Ukrainian law, primarily in relation to motorway construction. In 2015, the government adopted the concept of reforming the State management system of motorways and roads in general use, recognising the need to introduce the principles of impartiality and independence in road construction and adapting legislation to facilitate the use of FIDIC s conditions of contract in Ukraine.

4 In March 2017, the new requirements were enacted in Ukraine relating to the quality control of new construction, reconstruction and repair works of motorways and roads in general use, approved by Regulation No 1065 of the Ukrainian government On the Approval of Requirements to Quality Control of Construction, Reconstruction, Repairs and Maintenance of Motorways in General Use ( Regulation No 1065 ). Regulation No 1065 factored the role of the consulting engineer into the system of quality control and technical supervision of road construction works, 3 and made an express reference to FIDIC conditions of contract that engineers should take into consideration, as discussed in greater detail hereafter. On 1 January 2018, the amendments to the Law of Ukraine On the Motorways became effective, which expressly provide that the FIDIC principles and conditions of contract can be used to improve quality and efficiency of road (re)construction under the procedure established by the Cabinet of Ministers, thus bridging the requirements of Regulation No 1065 with the underlying Law. However, apart from the above general framework provisions, there are no clear legal rules, practical notes and guidelines, or case law that would support or clarify the concepts of independence, impartiality or neutrality of a consulting engineer in Ukraine. The Civil Code of Ukraine does not contain any express provisions to this effect, and it only encompasses the concept of an employer s agent. Namely, Article 881 of the Civil Code of Ukraine provides that an employer can enter into a contract with a specialised entity or an expert in order to perform control or supervision of construction and adopt, on the employer s behalf, relevant decisions; in this case, the authority and functions of such an entity or an expert should be defined in a contract for construction works. Furthermore, the Qualification Requirements to the profession of a consulting engineer, as well as certain other regulations that have recently been acted in Ukraine, are likewise based on the agency concept. In practice, even in the international construction projects funded by the IFIs, the powers of the Engineer were often limited by contractual clauses (eg, through the Particular Conditions and/or a consultancy contract with the Engineer(s) are forced to obtain pre-approval from the Employer in many instances; under some contracts, such pre-approval was seen to be required for all actions of an engineer. This farreaching extension of Employer s powers is usually preferred by public employers who are concerned about the increase in budget expenditures, liability or other exposure as a result of the Engineer s decisions. In this light, it is important that the new 2017 FIDIC contracts provide that the Engineer is not required to obtain the Employer s consent before any determination is made, when acting neutrally. If this approach is implemented in Ukraine, it can save the need for Engineers to obtain the approval of the Employer and reconfigure this onerous practice. The Construction Sector Transparency Initiative (CoST), which launched in 2015 to survey road construction projects in Ukraine with the support of the World Bank,

5 particularly emphasised in its Recommendations of CoST following the Results of Verification Process in the Road Sector in 2016 that the limited, insufficiently independent and weakened role of a consulting engineer features amongst the main problems of construction projects. Regulatory and operational framework for the consulting engineers industry in Ukraine Until recently, there has been no dedicated regulatory framework defining the notion or role of consulting engineers in Ukraine. Consulting engineers were referenced to, in a general and descriptive manner, in the List of the Types of Works Related to the Creation of Objects of Architecture, in Which Responsible Performers shall be Subject to Professional Attestation, approved by Regulation No 554, dated 23 May 2011, of the Cabinet of Ministers of Ukraine. The above list mentions the engineering consultancy activity in the construction field in terms of coordination of all participants of construction among the types of works and services which are subject to professional attestation. 4 Additionally, the general provisions could be found in the Civil Code of Ukraine and Regulation of the Cabinet of Ministers of Ukraine No 668 The General Conditions for Conclusion and Performance of Capital Construction Contacts, which allow an employer to assign powers regarding technical supervision and control to a third party (such as a consultancy, design or engineering company) or an expert, and define the scope of the delegated powers. Upon such delegation, the employer would remain liable to the contractor for performance under a construction agreement and would preserve the right to control construction quality and progress, as well as cost and volumes during performance of works. The scope of this provision is limited as it relates only to technical supervision and control and to those powers delegated by an employer. However, the remit of powers of a consulting engineer is typically much broader and provides a full professional service ensuring continuity from inception to completion of a project (including preparation of contract documents, account settlement and works acceptance, etc). 5 Not only should a consulting engineer perform those powers delegated by an employer, but it should act impartially when, for example, rendering determinations. The limited regulation of consulting engineers is the natural outcome of the State monopoly and centralisation of the construction industry during the Soviet era and the years following, with practically no room for non-state, independent expert supervision and control or project management of construction. Also, the concept of a self-adjusting contract with the involvement of a third party (such as a consulting engineer) has not been well-known in Ukraine, which is not supportive of the consulting engineer s role. The concept of risk or the principles of risk allocation is likewise not developed. Ukrainian legislation (as well as the court practice) does not suggest instrumental guidance on classification or allocation of risks in many

6 instances, nor on the practical consequences of these risks for parties in terms of cost or timing implications. The provisions of local forms of contract used in construction are usually not elaborate, as regards risks allocation and management. The year 2017 marked the turning point in the development of the regulatory framework for consulting engineers. On 8 August 2017, the Ministry of Regional Development, Construction, Housing and Communal Services of Ukraine (the Ministry ) issued Order No 192, with which it approved Amendment No 11 to the Classification of Professions and added a consulting engineer and a technical supervision engineer to the list of professions. Furthermore, the Ministry adopted the Qualification Requirements to the professions of a technical supervision engineer and a consulting engineer. The qualification requirements to technical supervision engineers became effective on 1 October 2017, and on 1 November 2017 the relevant requirements became effective for consulting engineers. The required qualifications to engineers differ depending on the types and complexity of works that they can perform or the class of consequences of a construction facility on which the works are to be performed. Consulting engineers in Ukraine are classified into the lead consulting engineers, engineers of 1st or 2nd category or consulting engineers. The highest requirements apply to a lead consulting engineer. The lead consulting engineer should: (1) hold the master s degree in the relevant field; and (2) have the working experience as a consulting engineer of 1st category not less than five years or hold a qualification certificate of a lead engineer for technical supervision or a construction expert. According to the Qualification Requirements, the lead consulting engineer has the broadest functionality compared to other categories of consulting engineers. He/she should: act as a representative of an investor (customer) and advise on the engagement of a design or general contractor; participate in the preparation of a contract for works and control its performance by all participants of construction; advise on organisational and financial aspects of the construction implementation structure and identification of the involved risks; control the organisational and technological reliability of the construction; submit proposals as to the construction stages or phases; provide cost estimate and budget planning; control the expenditures; analyse the results of audits and the validity of conclusions issued by controlling authorities; and participate in the analysis of claims and development of proposals as to their settlement. By way of comparison, a consulting engineer who is assigned the lowest category under the Qualification Requirements should perform the following: verify the volumes/quantities of the construction works performed and the quality of construction materials used; participate in the pre-design works and preparation of the initial data for design documentation; and check whether the resources used fit the relevant design solutions. A consulting engineer of this category is required to

7 hold the master s degree in the relevant field and to have not less than five years of experience in construction (regardless of the position held). Certain practical issues can arise due to the classification of consulting engineers provided by the Qualification Requirements. The differences in the functionality of different categories of consulting engineers appear somewhat artificial. Another criticism is that experts who hold degrees other than the master s degree are not qualified for consulting engineers. Previously, other degrees used to be awarded to the graduates of higher institutions (for example, the specialist degree). Following the enactment of these Qualification Requirements, holders of these degrees may have to receive the master s degree before they can continue their work as consulting engineers, whatever their practical experience. An interesting parallel can be drawn with the recent developments around the FIDIC contracts: the 2017 Yellow Book has also introduced certain qualification requirements for engineers. The new Sub-Clause 3.1 requires the Engineer to be a professional engineer with suitable qualification, experience and competence in the main engineering discipline applicable to the works as well as to be fluent in the language of the Contract. There have not been similar requirements in the 1999 editions of the FIDIC contracts. These new provisions can be used as a tool to help stand against the onerous practice of awarding tenders to the lowest price bidders. At the same time, concerns have been raised as to whether this could preclude the employer from appointing project managers to the role of the Engineer under the FIDIC contracts. 6 Needless to say, those market instruments derived from the legal status of consulting engineers, which are commonly used in other jurisdictions, are underdeveloped in the local Ukrainian market, such as, for example, professional liability insurance. Legal entities engaged in engineering consultancy services are not subject to licences. However, where construction works are performed in addition to consulting engineering services, a licence is required for those licensable construction works, such as performance of construction works on complex projects, falling into consequence class CC2 (medium) or CC3 (high). Notably, the above Qualification Requirements relate only to a natural person and there is no mention of a corporate entity. A different approach was taken by the Ministry of Social Policy of Ukraine in its Order No 1050, adopted on 23 June 2017, On the Approval of the Minimum Requirements on Labour Protection on Temporary or Mobile Construction Sites. 7 Order No 2050 sets out a broader definition of the construction manager (a consulting engineer), which includes not only natural persons, but also legal entities. The latter are described as engineering companies with the employed experts having the qualification level approved by a third party which, within the authority assigned by the employer, manage the project, advise the employer on the optimal ways of the

8 project implementation, adopt decisions on behalf of the employer and perform other functions. Hence, there are internal inconsistencies in different laws which reflect the lack of conceptual understanding of the role of consulting engineers in Ukraine. Both definitions in the Qualification Requirements and Order No 1050 appear to follow the pattern of the agent s role of the consulting engineer as the employer s representative, without any indication to its duty of impartiality or neutrality. The possibility of an engineer performing its functions efficiently is often affected by internal inconsistencies between a consultancy agreement with the engineer and an agreement for design and/or construction works with the contractor. The role of an Engineer in claim management procedures, as set out under FIDIC contracts, is also limited by the fact that these procedures are often not properly or efficiently applied and are disintegrated to the absence of improper setup of dispute adjudication boards (DABs). Delays or other breaches of claim management procedures are often seen in practice. The next tier in the claim management procedure, DABs which are supposed to step in should either party challenge an Engineer s determinations are rarely seen and their decisions are not enforceable in Ukraine. However, the practice of creating DABs is evolving. On the positive side, international arbitration is increasingly used under international construction contracts, although litigation in the local Ukrainian courts remains a popular choice, especially amongst public employers. The Ukrainian courts do not always strictly adhere to the contractual provisions on variations and allocation of the associated risks among parties, and do not rely on engineers determinations. In Case No 9/40/07 under the claim of Municipal Enterprise Vodokanal ( Employer ) to LLC Trust Zaporizhbud ( Contractor ) regarding the indemnification of damage under the contract for the procurement of works for the reconstruction of the Dnipro Water Supply Station (DVS-1) in the city of Zaporizhia, which was based on the FIDIC s Red Book, the court did not accept the Employer s reasoning that a DAB awarded the recovery of UAH 250,000 in delay damages to the Employer. The court stated that a DAB s decision is not binding on the court and refused to consider as incontestable evidence the letters issued by the Engineer whereby it satisfied the Employer s claims for the recovery of delay damages. The underdeveloped legal framework and the impaired functionality of consulting engineers, however, do not preclude consulting engineers, both local and international, from operating in Ukraine based on the general legal grounds and requirements relating to works and services.

9 Typically, employers appoint the consulting engineers for large infrastructure projects from amongst international companies or their subsidiaries. Local consulting engineers, although present in the market, are not sufficiently represented in large construction projects, particularly those based on FIDIC contracts. Local players are striving to foster their market position by organising themselves into professional industry associations and promoting their activities both in the domestic Ukrainian market and abroad, including through cooperation with FIDIC, as well as regional and peer associations of consulting engineers from other countries. Recent years have seen an unprecedented growth in the role of self-governed industry associations. In 2015, the Ministry delegated its authority to carry out certification to certain industry associations in the field of construction for example, the Guild of Designers in Construction, and the Association of Experts of the Construction Industry. Previously, certification was undertaken by the certification commission of the Ministry. Those associations operating in the field of consulting engineering (namely, the Association of Engineers-Consultants of Ukraine and the Interstate Consultants Engineers Guild do not certify consulting engineers due to the absence of a certification procedure. Much work remains for the government, the local consulting engineers associations and other concerned stakeholders to improve the awareness, practical knowledge and understanding of FIDIC contracts and other international engineering and construction standards, which can open the way to local professionals becoming more competitive both in Ukraine and internationally. Recent developments and the future outlook for consulting engineers in Ukraine Certain regulatory developments around the role of consulting engineers and FIDIC contracts have evolved as part of Ukraine s ongoing construction sector reform, which is aimed at the liberalisation of the market and ending the State monopoly within it. One of the major economic drivers behind the reform is the need to spur investment so as to modernise many sectors of the Ukrainian economy, including the expansion and upgrading of infrastructure, industrial, residential and other facilities. Following the March 2017 enactment of Regulation No 1065 relating to the quality control of new construction, reconstruction and repair works of motorways and roads in general use, FIDIC contracts became expressly associated with the role of consulting engineers, for the very first time in Ukrainian law. The scope of the authority of a consulting engineer was defined, and the framework set for interaction amongst employers, engineers and contractors, as will be discussed in greater detail below.

10 According to Regulation No 1065, a consulting engineer is defined as a person rendering road consultancy services taking into account the terms set out in the FIDIC conditions of contract, or with the involvement of experts that hold a qualification certificate for technical supervision of construction of motorways in general use. This wording is somewhat unclear and ambiguous, and may provide different interpretations. Notably, Regulation No 1065 includes a reference to FIDIC conditions of contract, which the consulting engineers should take into account while performing services. This wording should not be interpreted as incorporation by reference of FIDIC contracts into Ukrainian law. It should instead be read as guidance and best practice to be followed by consulting engineers. As previously, employers remain responsible for ensuring technical supervision, and the engagement of consulting engineers will not relieve employers from this responsibility under Ukrainian law. As stated above, the remit of powers of consulting engineers as set out in Regulation No 1065 is limited in terms of the sector and the scope of functions of an engineer. However, the adoption of this regulation should not prevent consulting engineers from performing their functions in other sectors (not limited to road construction), particularly where this possibility is provided in contracts and/or procurement rules, in the same way as previously. A consulting engineer should ensure the proper quality of road construction works, and is vested with such powers as the approval of taking-over certificates and their submission for payment to an employer, making determinations on the contractor s claims for an extension of time, storing the guarantee and compliance certificates, and certain other powers, which are listed in Regulation No It is possible to include additional terms and conditions in a contract, not limited to the provisions of Regulation No 1065, which set out the rights and obligations of a consulting engineer. No requirements are established in respect of the form of consultancy agreements to be concluded with the consulting engineer. Accordingly, a recommended form may be expected to be adopted in the future; for example, based on the FIDIC White Book ( Client/Consultant Model Services Agreement ), edition 2006 or Regulation No 1065 does not provide a perfect or comprehensive and robust guidance, and it will require further work. Potential areas for improvement include: refining the definition of a consulting engineer and the scope of its authority; specifying the mechanisms and consequences of different interactions amongst consulting engineers, employers and contractors; ensuring a consulting engineer s

11 impartiality; determining the scope and limits of liability of engineers; and the role of consulting engineer in the management of claims and dispute resolution procedures. The new requirements for quality control in construction, introduced by Regulation No 1065, are being implemented gradually: until 1 January 2018, they applied only to works for new construction, reconstruction or capital repairs of motorways in general use. Viewing the logic and concept of construction reform, the approach encompassed by Regulation No 1065 can be expected to be expanded and extended to other types of construction works outside of the road sector. With the enactment of Regulation No 1065, it will be easier for public employers to engage consulting engineers on international construction projects. Previously, many public employers were faced with allegations that they duplicated and overspent public money when engaging external consultant engineers, while at the same time maintaining their own in-house engineering and/or technical supervision departments. This quasi-paternal approach and its resultant prejudice against independent external consultancy and supervision is deeply rooted in the historical concept of the State monopoly of technical supervision and quality control of construction. Notably, it is necessary to put in place consulting engineers also for the local construction projects. This is a novel practice for Ukraine, and it raises the need for having a sufficient number of qualified experts across the country. This is particularly urgent in the context of the ongoing decentralisation of road management and road construction financing. Decentralisation involves the transfer of relevant powers from the centralised bodies (State Agency of Motor Roads of Ukraine, Ukravtodor) to the local regional authorities (the regional state administrations). A lack of the trained and certified experts to meet the needs of the road construction industry in regions is one of the major points of concern related to decentralisation (along with the lack of local budget funds and expertise required to ensure the proper road management and construction). Although in need of further improvements, the new independent quality control requirements introduced by Regulation No 1065 mark a significant step forward in the evolving reform of the construction industry in Ukraine. The quality of construction works and the efficiency of construction projects is expected to improve with the ending of the monopoly and State control of technical supervision and quality control in Ukraine, and the implementation of the principles and professional standards for international engineering consultancies in the construction industry in Ukraine. In December 2017, LLC Inproject, a research company specialising in developing cost estimates and other reference documents for the industry, issued The Indicative List of Basic Services that a Consulting Engineer Can Provide to an Employer so as to

12 facilitate the budgeting of relevant services in construction projects. The general indicative threshold for the cost of consulting engineer services was set at 5.5 per cent of total construction cost. Some examples of the reference thresholds for the cost of consulting engineer services in total construction costs are: predesign stage: 0.9 per cent 1.0 per cent; tendering of construction works: 0.3 per cent; technical supervision: 1.5 per cent 1.95 per cent; project administration: 1 per cent 1.1 per cent; and administration of claims or mediation: 0.3 per cent 0.35 per cent. The above breakdown is not mandatory and is for reference purposes only; it was developed to assist participants with estimating the costs of consulting engineers services. This practice may seem uncommon, but to a certain extent it can be helpful to market participants given the novel role of consulting engineers and the local tradition of setting standards and norms in construction if it is applied with the required flexibility and adjustments and taking account of the peculiarities of an individual project. On 1 June 2018, amendments to the State Standard of Ukraine (DSTU) Rules of Determination of Construction Costs became effective, which expressly envisaged the possibility of allocating up to three per cent of construction costs of a project for paying services of consulting engineers. Thus, it became easier for public employers to engage external consulting engineers and substantiate related costs. Conclusion Engineers should play a larger role in training and in informing institutions, employers and the project implementation units on their duties, obligations and authority. A further impetus to growth in the consulting engineering industry can be provided by the official translation of the FIDIC forms of contract into Ukrainian. It is not only knowledge of the contract text that is important, but also raising the awareness of the industry about their application, as well as the underlying principles and concepts, including as regards the role of consulting engineers. This can be based on the supporting notes and explanatory materials of FIDIC, cooperation an exchanges with the regional and foreign associations of consulting engineers, as well as various case studies. It is an opportune time to implement training sessions with a broad agenda for all construction projects financed by the development banks prior to the commencement of the works, as well as during the project implementation. The financial and technical assistance support from international financial institutions,

13 such as the European Bank for Reconstruction and Development, European Investment Bank and the World Bank, is paramount in implementing changes to the role of consulting engineers and facilitating the use of FIDIC contracts in Ukraine. The definition of consulting engineers is still not perfect or consistent. It may need refining to reflect the concept of impartiality (neutrality) and the dual nature of consulting engineer s functions, and to eliminate artificial classifications or other constraints on the functionality of a consulting engineer. The scope of powers of a consulting engineer should not be limited to the quality control of road construction, and it should comprise other functions required to manage and implement a project and ensure its quality during a project life cycle, whatever the industry. The educational programmes or courses need to be developed and broadly implemented across the Ukrainian higher schools to enable them to teach students the international standards of the consulting engineering profession. Recent legislative changes have improved the outlook for the growing role of consulting engineers in Ukraine, as their role became expressly aligned with the improved quality and efficiency of construction and, on this basis, further regulations and practice should be developed. Notes 1 Here and onwards the capitalised terms Engineer, Employer and Contractor are used to denote relevant parties under the FIDIC conditions of contract. 2 See, for example, FIDIC Conditions of Contract 2017 update by Holst, Advokater, March Technical supervision is ensured by an employer (developer) through control of compliance of works with design documentation, construction rules, standards and norms, as well as control of quality and volume of work. 4 Professional attestation involves the issuance of a qualification certificate by an appropriate body (such as the attestation commission of the Ministry of Regional Development, Construction, Housing and Communal Services of Ukraine, or the authorised self-governing industry associations) to confirm the compliance of a person with qualification requirements and ability to perform relevant works or services. In addition, professional certification is required if a consultant engineer also performs the functions of technical supervision or other types of activities that are subject to certification under Ukrainian law.

14 5 See, for example: 6 See, for example: Engineer.pdf. 7 This Order is based on the requirements of Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites. Dr Svitlana Teush, PhD, Head of Real Estate and Construction, Counsel on Energy and Infrastructure at Redcliffe Partners law firm, Kyiv, can be contacted at svitlana.teush@redcliffe-partners.com. Dr Lukas Klee, LLM, PhD, MBA, Advisor, Lecturer, Arbitrator, and Expert witness at Klee Consulting, Prague, can be contacted at lukas@klee-consulting.com. Roger Ribeiro, Msc, MCiarb, Civil Engineer, Contract Manager, FIDIC expert, Adjudicator, and Associate Director at Currie & Brown, Paris, can be contacted at roger.ribeiro@curriebrown.com.