“as soon as practicable” v “as soon as possible”. FIDIC English standard and problem with translations to Portuguese, French and Spanish.

Several cases in common law jurisdictions, for a value of millions of dollars, have clarified that “as soon as practicable” is not the same as “as soon as possible”.
Courts in Hong Kong, New York, Texas and London have decided that “as soon as practicable” doesn´t always mean “as soon as feasible” and definitely not “as soon as possible”; it is necessary to take the facts and circumstances into account, including the state of mind of the parties.
In the cases studied, and in relation to the FIDIC standards, which use “as soon as practicable” throughout the contract and not a single time “as soon as possible”, notifications that had to be submitted “as soon as practicable” were considered valid by the courts even when they were issued weeks after it was possible or feasible to issue them, having into account the circumstances, the facts and the state of mind of the parties. As an example: A contractual notification was not issued after the fulfillment of the condition precedent that gave right to one of the parties to issue it, triggering an obligation of the other party, because both parties were jointly trying to achieve the same result through other ways.
Two questions interest us within the FIDIC world: the first one is that “as soon as practicable” is more flexible than “as soon as possible” and common law jurisdictions will apply this flexibility; the second question is the issue of translations of the original FIDIC standards to other languages. The translations I know (to French, Portuguese and Spanish) eliminate the flexibility of “as soon as practicable” to the rigidity of “aussitôt que possible” in French, “logo que possível” in Portuguese and “tan pronto como sea posible” in Spanish. It is an unwanted consequence of the translations. The texts in French, Portuguese and Spanish don´t mean the same as the original English. Users have to bear in mind this fact when dealing with contracts written in these languages.
How to avoid this unwanted consequence?
Until current translations are updated, the parties should change the translated texts through the Particular Conditions. Also, users should recommend the institutions that translate FIDIC to address this issue in their future translations or updates.
We still need to solve the problem: how to translate “as soon as practicable” to other languages without missing the flexibility of the term. French and Portuguese are the work of others. Of course, it is not an easy task to achieve a good and short translation, that´s the reason why the current translations have missed the point. We propose: “tan pronto como sea prácticamente posible atendiendo a las circunstancias”. If we choose “tan pronto como sea prácticamente posible” it may seem redundant. Here is the challenge for users of FIDIC contracts in languages other than English.

Ignacio de Almagro

Construction Lawyer, Adjudicator, Dispute Boards, at Opal Expert Services

3y

27.000 views of this article. May be we should review it as soon as possible but I think we can wait and leave it as it is. ;)

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Interesting one Danny, thanks

Thank you so much. Your article is so useful.

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