Abstract

Extensive application of FIDIC Contract Conditions in the construction services market not only in the public sector but also more and more often in dealings between private entities in various forms, beginning with a complete incorporation of FIDIC terms into a contract, to inclusion of modified terms and conditions into a contract and implementation of only selected institutions, frequently causes numerous practical problems, primarily relating to the question of how to interpret - in light of the Polish Civil Code and Public Procurement Law - the institutions unknown to Polish law that have originated under foreign law, first and foremost – the Anglo-Saxon common law system. The Polish Supreme Court in its commented judgment of 13 September 2017 (case no. IV CSK 578/16) faced such an issue having to analyze the relation of the “take-over certificate” regulated in the FIDIC Contract Conditions and Contract Terms (and originating in the system of certificates known to the English construction contract law) to the Polish regulation of the acceptance protocol.

This commentary is aime at analysing the Supreme Court’s conclusion as to the identity of the institutions of the take-over certificate and the acceptance protocol and identification of their impact on the construction services market.