15.1 Archives - Howard Kennedy

FIDIC 2017 Books – Clause 15 – Termination by Employer

FIDIC 2017 Books – Clause 15 – Termination by Employer

The main changes in Clause 15 are the new grounds for termination: Non-compliance with a final and binding Engineer’s Determination (Sub-Clause 15.2.1(a)(ii)) and a binding or final and binding DAAB decision (Sub-Clause 15.2.1(a)(iii)) to the extent that such failure constitutes a “material breach” of the Employer’s obligations under the Contract. Maxing out the Delay Damages (Sub-Clause 15.2.1(c)). There is no requirement for the Delay Damages to have been actually deducted. It is not clear what the position would be if the Contractor claims an EOT and it is granted by the DAAB or arbitrator after termination so that the Delay Damages are reduced below the cap. Would the termination then be unlawful?

By HowardKennedy ITteam|27/01/2018|Dispute Boards, Knowledge Hub|Comments Off

FIDIC 2017 Books – Clause 3 – The Engineer

FIDIC 2017 Books – Clause 3 – The Engineer

The main changes: Employer’s consent and neutrality The main changes in Clause 3 are the express provisions in Sub-Clause 3.2 [Engineer’s Duties and Authority] that the Engineer is not required to obtain the Employer’s consent before the Engineer exercises its authority under Sub-Clause 3.7 [Agreement or Determination], and that the Engineer must act “neutrally” when exercising its duties under Sub-Clause 3.7 [Agreement or Determination]. Dictionary definitions suggest that “neutrally” is similar in meaning to the words “independently” or “impartially” found in the FIDIC Red Book 4th edition and the FIDIC Yellow Book 3rd edition. However, the drafting committee believe that by using a different word it will avoid the difficulties raised in the interpretation of independently or impartially in the earlier editions. This remains to be seen. The intention is that “the Engineer treats both Parties even-handedly, in a fair minded and unbiased manner”.

By HowardKennedy ITteam|27/01/2018|Knowledge Hub|Comments Off

FIDIC 2017 – First Impressions of the 3-Kilo Suite

FIDIC 2017 – First Impressions of the 3-Kilo Suite

In London last week, FIDIC launched its Second Editions of the Red, Yellow and Silver Books. They are big, weighing in at almost a kilo each. The general conditions cover 106 pages with more than 50,000 words, over 50% longer than the 1999 forms. Many improvements have been made, addressing issues that have emerged since 1999. Fans of Dispute Boards will be pleased to see that all three books now have standing boards with more emphasis on dispute avoidance; and that appointment of DB members and enforcement of their decisions have been made easier. Disputes and Arbitration are now dealt with in a separate chapter 21. Here are the most interesting changes to the Yellow Book.