FIDIC Seminars – Claims
Day 1 Time Session 09.30 Overview of FIDIC Contracts 10.15 Which form to choose? 11.00 Coffee 11.15 Roles of Employer, Engineer and Contractor 12.00 Workshop 1 - which form to choose? 13.00 Lunch 14.00 Time and risk of delay 14.45 Delay damages and other Employer claims 15.15 Tea 15.30 Contractor claims for money 16.00 Workshop 2 – FIDIC 1999 Red Book 17.00 End of day 1 For more information, please download the brochure below. Alternatively, if you have any questions or wish to arrange bespoke training, please do get in touch with victoria.tyson@howardkennedy.com or joanne.clarke@howardkennedy.com.
Green Book Commentaries (Coming Soon)
We are pleased to inform you that a series of meticulously crafted commentaries on the 2021 Green Book will be published shortly. Our team is dedicated to providing you with insightful and engaging content. We appreciate your patience and look forward to sharing our latest updates with you soon.
The Engineer under FIDIC forms of contract: Real-life questions
The 'Engineer' under the FIDIC forms of contract has long been a controversial figure – the Engineer is appointed by, may be deemed to act for, and is paid by the Employer, but nonetheless on many issues is required to act 'fairly' as between the Employer and the Contractor. This article looks at real-life questions which frequently arise in respect of the Engineer and considers how parties might best approach them. Under FIDIC forms of contract, the Engineer is a third-party administrator This means that the Engineer is not a party to the FIDIC construction contract, which is between the
New Arbitration and Mediation Guidelines for Indian Public Procurement Contracts
The Government of India has recently introduced important guidelines for arbitration and mediation in domestic public procurement contracts, representing a shift in how disputes under such contracts are to be resolved. These changes are particularly relevant for construction professionals and legal practitioners involved in India’s infrastructure and public sector projects. The Role of Arbitration in Indian Public Procurement Arbitration has long been considered a favourable alternative to litigation in resolving construction and procurement disputes, offering potential advantages such as speed, flexibility, and technical expertise. However, on 3 June 2024, the Procurement Policy Division of the Government of India published guidelines
CAB to Resolution: Steering Clear of Conflicts
In August 2024 SIMC introduced a new Integrated Appropriate Dispute Resolution Framework ('INTEGRAF') to help disputing parties "unbundle disputes and apply the most appropriate dispute resolution mechanism to each aspect of a dispute." This article considers INTEGRAF's applicability in construction projects.
No Notice, No Claim? Conditions Precedent in FIDIC Contracts
How do you establish whether a notice provision is really a condition precedent (or time bar)? In Tata Consultancy Services Ltd v Disclosure and Barring Service,[1] Mr Justice Constable reviewed the key authorities[2] on conditions precedent and provided 7 "relevant matters" to consider. In this article we look at how FIDIC's claims procedures measure up against Constable J.'s 7 points. Although Tata is an English law case, it could be cited as persuasive authority in any FIDIC condition precedent arguments formed globally. The case Tata Consultancy Services Limited (‘TCS’) was a company supplying business process outsourcing and IT services. TCS
No Oral Modification Clauses Mean What They Say
Will an oral agreement override a written one that expressly prohibits oral modification? No. The UK Supreme Court in Rock Advertising Ltd - v - MWB Business Exchange Centres Ltd[1] brings welcome clarification to the English common law on “no oral modification” (NOM) clauses. The courts will now uphold them. Unless very particular circumstances are involved, the only means to vary a contract with a NOM clause is by doing so in writing. The Court’s judgment is interesting for its divergent views on the philosophy of what it means to have freedom of contract. But with conceptual objections now swept
The Highest UK Court Reviews the Law on Penalties
A penalty is now to be regarded as: “a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.” The UK Supreme Court has reviewed the English law of penalties and re-formulated the test in a landmark judgment on two unrelated appeals heard together: Cavendish Square Holding BV – v – Talal El Makdessi (“Cavendish”); and ParkingEye Ltd – v – Beavis ("Beavis").[1] The two appeals did not involve construction matters. The judgment will nevertheless be of great interest to construction industry
The Problem with Enforcing Arbitration Awards that have been Annulled
The purpose of the 1958 New York Convention is to facilitate, so far as possible, the international recognition and enforcement of foreign arbitral awards. Nevertheless, it provides that a court may refuse to do that if such an award has already been set aside or suspended at its “seat”. The English courts have interpreted this word "may" as giving themselves a wide discretion. But in practice, it is likely to result in a refusal to enforce. When an award has been set aside at the seat of the arbitration, the enforcing court will first have to consider the status of
The Dangers of Employer Set Off in your FIDIC Contract: Suspension and Termination
If an Employer sets off certified but unpaid sums without following Sub-Clause 2.5, it may breach contract terms under FIDIC 1999. This article explores whether Employers can bypass the Engineer’s role and why the clause’s wording is crucial to both Contractors and Employers.
FIDIC Sub-Clause 20.5 – A Condition Precedent to Arbitration
The 1999 FIDIC forms of contract contain a number of obligations and/or conditions precedent that require: a party to give notice of a claim (Sub-Clauses 20.1 and 2.5); refer the claim to the Engineer (Sub-Clauses 20.1 and 3.5); and submit the dispute to a Dispute Adjudication Board (“DAB”) (Sub-Clause 20.4). If either party gives a notice of dissatisfaction relating to the DAB’s Decision, Sub-Clause 20.5 provides that:[1] “Where a notice of dissatisfaction has been given under Sub-Clause 20.4 above, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration
FIDIC Silver Book – Payments Due Shall Not Be Withheld… Really?
There is a substantial difference between the payment provisions of the FIDIC 1999 Red and Yellow Books compared with the Silver Book. This article explores how a court in Queensland (Australia) dealt with the Silver Book’s provision. Contractors have good cause to be wary. Role of Interim Payment Certificate In Dawnays Ltd v F G Minter and Trollope & Colls Ltd,[1] the English Court of Appeal judge, Lord Denning, expressed the view that: “an interim certificate is to be regarded virtually as cash, like a bill of exchange.” This bold statement was however quickly rejected by the higher English courts.
2017 Suite: Commentary on Clause 01.15 – Limitation of Liability
Clause 1.15, previously in Sub-Clause 17.6 (1999 Edition), is now separated from Risk and Responsibility. It exempts parties from liability for loss, including loss of use, profit, or contracts, with exceptions for certain sub-clauses, notably Sub-Clauses 8.8 and 13.3.1(c).
2017 Suite: Commentary on Clause 14 -Contract Price and Payment
Clause 14 outlines payment, certificates, and release from liability. While the methodology remains unchanged, procedural adjustments may delay payments but aim for prompt claim resolution. Some changes benefit contractors: e.g. claims are addressed during or shortly after the contract period.
2017 Suite: Commentary on Clause 13 – Variations and Adjustments
Clause 13 clarifies the Engineer’s power to vary, allowing contractors to object to unforeseeable variations. Significant limitations include objections for health, safety, and environmental impacts. Variations must align with Employer’s Requirements, and supplemental agreements may be needed for significant changes.
2017 Suite: Commentary on Clause 12 – Tests after Completion
Clause 12 covers Tests after Completion, often required for process and power contracts. Tests are conducted by the Employer, with significant changes including competent staff requirement, testing per Employer’s Requirements and O&M Manuals, and new provisions for test timing and notice.
2017 Suite: Commentary on Clause 11 – Defects After Taking Over
Clause 11 has been clarified, with detailed provisions for notices and periods, DNP for Parts, and clearer time limits. Changes include risk allocation, compensation for denied access, and limited liability for Plant damage. Some cross-references may cause confusion.
2017 Suite: Commentary on Clause 07 – Plant, Materials and Workmanship
Clause 7 of FIDIC 2017 mandates specified quality for plant, materials, and workmanship, requiring defect rectification. It covers testing, inspection, and rejection to ensure compliance. All sub-clauses have changed, with several significant modifications.
1999 Suite: Commentary on Clause 16 – Suspension and Termination by Contractor
Clause 16 addresses suspension and termination by the Contractor, including rights to suspend work, grounds for termination, cessation of work, and payment on termination. It specifies notice periods, conditions for immediate termination, and entitlements following termination.