The Highest UK Court Reviews the Law on Penalties
A penalty is now to be regarded as: “a secondary
The Problem with Enforcing Arbitration Awards that have been Annulled
The purpose of the 1958 New York Convention is to
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
FIDIC Silver Book – Payments Due Shall Not Be Withheld… Really?
There is a substantial difference between the payment provisions of
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.
1999 Suite: Commentary on Clause 12 – Measurement and Evaluation
FIDIC 1999 is a re-measurement contract, with the Employer bearing the risk of quantity variations. Clause 12 covers measurement, evaluation of rates, and valuation of omissions. It lacks a standard measurement method, which has been criticized.
1999 Suite: Commentary on Clause 09 – Tests on Completion
Clause 9 covers Tests on Completion, requiring the Contractor to give notice when ready to carry out Tests on Completion, addressing delays by either party, retesting after failure, and handling failures to meet contract requirements after retesting.
Cofely v Knowles – From Appointment to Disappointment
There have been two High Court cases within the last
BoQ Rates Neither ‘Immutable nor Sacrosanct’
The Hong Kong Court of Appeal now supports engineers requesting evidence of original tender build-up and disallowing loaded rates if substantial quantity differences justify it. This article explores that new guidance, which finds contract rates to be neither immutable nor sacrosanct.
1999 Suite: Commentary on Clause 04 – The Contractor
Clause 4 of the FIDIC Red Book 1999 consolidates various Contractor obligations, covering 24 topics. It includes general duties and references other significant obligations scattered throughout the Contract, such as communications, assignment, document care, compliance with laws, and time for completion.
2017 Suite: Commentary on Clause 05 – Design
Clause 5 changes include specifying designer qualifications, moving part of Sub-Clause 5.1 to 1.9, changing "approval" to "No-objection" in Sub-Clause 5.2, and introducing a new procedure for addressing design errors in Sub-Clause 5.8.
2017 Suite: Commentary on Clause 04 – The Contractor
Clause 4 changes include defining 'fitness for purpose' in Employer's Requirements, adjusting the Performance Security, handling communications by the Contractor's Representative, setting subcontracting limits, enhancing health and safety obligations, redefining unforeseeable conditions, and increasing Contractor risk for access routes.
Are ‘binding’ DAB decisions enforceable?
Opinions on enforcing 'binding' DAB decisions vary. Some arbitrators support enforcement, while others, including the Singapore Court of Appeal, oppose it. This article considers case law addressing both sides of the argument and the issues that they raise.