The legal implications which may arise from underground works with particular reference to the FIDIC Emerald book

Abstract

Underground works may give rise to many legal claims which are unbeknownst to many. These claims vary in nature and each carries with it a distress which, if adjudicated wrongly, the decision has the potential to halt and effectively eliminate any ambitious plan one had in mind. Property ownership entails with it many benefits but it also brings with it continuous observation whether such right is being infringed. A type of infringement can be caused by the actual taking of the property itself. As a result, this dissertation sets out to discuss the notion of subsurface ownership. The provisions of the Civil Code dealing with ownership shall be discussed in order to decide, once and for all, the existence and limits of the legal substratum ownership. Emphasis shall be made on the position of the law and of the Courts. Additionally, a comparative aspect with other jurisdictions is done to establish Malta’s standing on the matter and whether there is room for improvement or not. Furthermore, to have an effective and unhindered execution of underground works, a solid legal contractual foundation is necessary. As a result, special reference shall be to the FIDIC Condition of Contract for Underground Works, which is known as the 2019 Emerald Book, mostly because this standard form of contract is widely used in Europe and since it has French law roots, it is well-suited with the Maltese Civil law system. Despite FIDIC’s authoritative value, the current Maltese tendering practices are not to be disregarded. Henceforth, an analysis of the General Conditions for Works Contracts V4.2 authored by the Department of Contracts shall be made. A comparison of these two sets of templates will be given and, recommendations are made where necessary.