FIDIC 2022 Reprints: 10 Key Areas Of Change In The FIDIC Red Book 2017

FIDIC ‘launched’ the FIDIC 2022 reprints at the FIDIC International Construction Users’ Conference 2022, in London. The reception to the changes was mixed – some embraced the clarity; others questioned the significance and cost. This article draws your attention to 10 of the key areas of change in respect of the FIDIC Red Book 2017 including the definition of Claim, matters to be agreed or determined, the definition of Dispute and Exceptional Events.

By |18/01/2023|Adjudication / Dispute Boards / ADR, Design, Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC 2022 Reprints: 10 Key Areas Of Change In The FIDIC Red Book 2017

FIDIC contracts—introduction to the FIDIC Green Book 2021

This Practice Note is an introduction to the FIDIC Green Book 2021 (the Short Form of Contract). It is not a fully detailed clause-by-clause commentary. This article was first published by LexisPSL

By |10/01/2023|Adjudication / Dispute Boards / ADR, Arbitration, Delay, Design, Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC contracts—introduction to the FIDIC Green Book 2021

Escalating construction costs under FIDIC: is Sub-Clause 13.8 an answer?

Construction costs are escalating. Under existing contracts, an employer will not want to pay more for the works. But forcing a contractor to perform works that are unprofitable or causing a massive loss is unlikely to be in the best interests of the project. It may result in the insolvency of the contractor forcing the employer to abandon the contract or re-let it, probably at a premium. Is a mechanism for cost adjustment, such as FIDIC 1999 Sub-Clause 13.8 [Adjustments for Changes in Costs], an answer?

By |30/08/2022|Cost, featured, Knowledge Hub|Comments Off on Escalating construction costs under FIDIC: is Sub-Clause 13.8 an answer?

Price escalation and FIDIC: is Force Majeure an answer?

Could provisions in FIDIC contracts giving relief for ‘Force Majeure’ or ‘Exceptional Events’ provide relief to contractors suffering as a result of price escalation? It is well documented that construction and engineering projects around the globe are being affected by extreme and sometimes unprecedented price escalation. This is for many reasons including the Covid-19 pandemic and the Russo-Ukrainian conflict.

By |30/08/2022|Cost, featured, Knowledge Hub|Comments Off on Price escalation and FIDIC: is Force Majeure an answer?

FIDIC Changes in Legislation and Covid-19: Compelled by Law or Just Doing Your Job?

Up until the spring of 2020, a FIDIC 1999 Sub-Clause 13.7 [Adjustments for Changes in Legislation][1] claim was just one of many issues to be resolved, for example, in a delay and disruption claim or a Cost claim. However, the focus it receives in the context of Covid-19 is drastically different. Many in the industry are using the changes in legislation provision to seek financial compensation in a situation that would otherwise potentially only attract an extension of time.[2] Awarding Cost for Covid-19 events regardless of the circumstances may seem to some (Contractors mostly, though there are Employers and Engineers who agree) like the appropriate thing to do, but whether it is correct according to the Contract is a different question.

By |23/09/2021|Covid, Delay, featured, Knowledge Hub|Comments Off on FIDIC Changes in Legislation and Covid-19: Compelled by Law or Just Doing Your Job?

Arbitration Update 2021

The last year or two has seen changes in arbitration rules and procedures, caused in no small part by the COVID-19 pandemic. There are new LCIA, DIFC-LCIA and ICC arbitration rules. The Seoul Protocol on Video Conferencing in International Arbitration is being regularly used and the Africa Arbitration Academy Protocol on Virtual Hearings has been issued. There have also been revisions to the IBA Rules on Taking Evidence in International Arbitration. This short update looks at the key take-aways from these changes.

By |07/05/2021|Arbitration, Covid, featured, Knowledge Hub|Comments Off on Arbitration Update 2021

‘Subject to Contract’ in English Law

This article considers the label ‘subject to contract’ in English law and two recent English court decisions which consider the effect of this label in different factual circumstances. Parties who are negotiating a contract may use the label ‘subject to contract’ to ensure that they do not enter into a binding agreement before they are ready to do so. This can be particularly important in English law when a binding agreement can be reached (with a few exceptions) without any particular formalities. However, the label is not unassailable and whether it has the required effect will always depend on the circumstances.

By |07/05/2021|English Law, featured, Knowledge Hub|Comments Off on ‘Subject to Contract’ in English Law

Changing Tack

A contract may require a party giving notice of a claim to specify the contractual or legal basis of that claim in the notice (or the supporting particulars). What if that party states a contractual or legal basis for the claim but later (perhaps with the benefit of additional information or because of advice from its lawyers) changes its mind or wants to include further contractual or legal bases? This was considered by the Hong Kong Court of Appeal in Maeda Corporation and China State Construction Engineering (Hong Kong) Limited v Bauer Hong Kong Limited [2020] HKCA 830. It found that a subcontractor could not change the contractual basis for its claim once the time period for providing such notice had expired. What, if any, impact will this decision have on the FIDIC forms of contract?

By |07/05/2021|Arbitration, featured, Knowledge Hub|Comments Off on Changing Tack

Jurisdiction, Admissibility and FIDIC

An issue that often arises in international arbitrations involving the FIDIC forms of contract is whether a claimant's failure to: (a) go through the dispute resolution provisions; or (b) comply with a time-bar clause gives rise to a question of admissibility or jurisdiction. Put another way, if a claimant has failed to issue a notice of claim within 28 days or failed to refer a dispute to a DAB, does the arbitral tribunal have jurisdiction to make an award on the merits or should the arbitral tribunal make an award stating that it lacks jurisdiction?

By |06/11/2020|Adjudication / Dispute Boards / ADR, Arbitration, Delay, Dispute Boards, featured, Knowledge Hub|Comments Off on Jurisdiction, Admissibility and FIDIC

FIDIC’S Golden Principles – holding back the tide?

FIDIC is concerned about its image. It says that heavily amending the FIDIC forms of contract impacts upon the FIDIC brand and that this is damaging FIDIC’s reputation. It seeks to address this with the introduction of five Golden Principles. But the Golden Principles are merely aspirational; they are not binding and have no contractual effect. Does this render them a pointless gesture ‘trying to hold back the tide’?

By |10/03/2020|Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC’S Golden Principles – holding back the tide?

Pay attention Bond!

The recent English case Sumitomo Mitsui Banking Corporation Europe Limited v Euler Hermes Europe SA (NV) [2019] EWHC 2250 (Comm) highlights that where an on demand bond is assigned and a demand then made under that bond, the beneficiary will need to be sure not only that the demand is compliant with the terms of the bond but also that the assignment was effective in the first place.

By |10/03/2020|Bonds, English Law, featured, Knowledge Hub|Comments Off on Pay attention Bond!

FIDIC’s Emerald Book – A contractor’s charter or optimum risk allocation?

It has been suggested that FIDIC’s new Emerald Book may be “a contractors’ charter for riches”. 1 This article examines whether this new form of contract for underground works by FIDIC and the International Tunnelling and Underground Space Association is too contractor-biased or whether it provides a sensible and pragmatic risk allocation process, in an area of construction and engineering which is well known for claims. If more risks are placed on the Employer in this form of contract, what are the benefits of the contract compared to, for example, an unamended FIDIC Yellow Book?

By |10/03/2020|Arbitration, featured, Knowledge Hub|Comments Off on FIDIC’s Emerald Book – A contractor’s charter or optimum risk allocation?

No EOT for Concurrent Delay, if so Agreed

Contract clauses that deny a contractor entitlement to an extension of time for concurrent delays caused by both employer and contractor are valid in principle.  In North Midland Building Ltd -V- Cyden Homes Ltd [1] the Court of Appeal of England and Wales has ruled that such clauses do not offend the common law prevention principle.  Nor do they give rise to an implied term to prohibit the imposition of delay damages that may result.

By |21/05/2019|Delay, English Law, featured, Knowledge Hub|Comments Off on No EOT for Concurrent Delay, if so Agreed

FIDIC contracts – What protection do they give contractors for employer financial problems?

In all construction contracts, one of the central principles is the Employer’s obligation to pay the contract price. The Contractor will be wary about the Employer’s financial standing and ability to pay and concerned to ensure that payments are made on time and that effective remedies are available in case of late or non-payment. The FIDIC standard forms of contract contain provisions dealing with these aspects.

By |21/05/2019|Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC contracts – What protection do they give contractors for employer financial problems?

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