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?

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

FIDIC 1999 Books – Commentary on Clause 8

Clause 8 contains all the fundamental provisions relating to the start of the Works, the Time for Completion, delays and the entitlement of the Contractor to an extension of time and of the Employer to delay damages, and finally the circumstances in which a suspension of the Works can occur and the implications for the Parties. 

By |14/11/2018|Delay, English Law, featured, Knowledge Hub|Comments Off on FIDIC 1999 Books – Commentary on Clause 8

FIDIC 1999 Books – Commentary on Clause 3

Clause 3 deals with the duties and obligations of the Engineer and his assistants.  Sub-Clause 3.1 deals with the role and duties of the Engineer.  The Engineer is deemed to act for the Employer.  The Engineer has no authority to relieve the Contractor of his duties, obligations or responsibilities under the Contract; nor can the Engineer amend the Contract. Under Sub-Clause 3.2 the Engineer can delegate authority to any assistants; however, the Engineer cannot delegate the responsibility to make Determinations.  Under Sub-Clause 3.3 the Engineer may issue instructions or modified Drawings at any time, which are necessary for the execution of the Works.  If the instruction constitutes a Variation, then it is dealt with under Clause 13 [Variations and Adjustments].  The Contractor is required to comply with any instruction given by the Engineer or delegated assistant.  Sub-Clause 3.4 deals with the replacement of the Engineer.  The Employer must not replace the Engineer with someone against whom the Contractor raises reasonable objection. Sub-Clause 3.5 deals with Determinations.  When making a Determination the Engineer should consult with each of the Parties and, if agreement cannot be reached, make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances.  Both Parties are required to give effect to any Determination unless, or until, it is revised under Sub-Clause 20.1 [Claims, Disputes and Arbitration].

By |26/09/2018|Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC 1999 Books – Commentary on Clause 3

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.

By |13/12/2017|Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC 2017 – First Impressions of the 3-Kilo Suite

The Risk of Relying on the Obrascon case’s ruling on Sub-Clause 20.1 Claim Notices

Contractors are sometimes concerned about the politics of their FIDIC 1999 Sub-Clause 20.1 notices. Some Contractors may consider that serving Sub-Clause 20.1 notices may send the wrong message, particularly in the honeymoon period when the works have just begun. However, the consequences of failing to serve a timely claim notice are so dire that doubtless the issue is regularly on every Contractor’s mind. The case of Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar1 in the Technology and Construction Court of England and Wales provided some welcomed relief to many Contractors worldwide who may now attempt to rely on its finding on the timing of claim notices when postponing service of these crucial notices.

By |08/02/2017|featured, Knowledge Hub|Comments Off on The Risk of Relying on the Obrascon case’s ruling on Sub-Clause 20.1 Claim Notices

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