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1999 Suite: Commentary on Clause 10 – Employer’s Taking Over
Clause 10 covers the Taking-Over of Works, Sections, or parts. It includes conditions for Taking-Over, deemed Taking-Over due to Employer’s use or interference, and breach of contract if the Engineer fails to issue the Taking-Over Certificate.
Author: Victoria Tyson
04/25/2024
1999 Suite: Commentary on Clause 20 – Claims, Disputes, and Arbitration
Clause 20 covers claims, disputes, and arbitration. It includes procedures for Contractor claims, appointing a Dispute Adjudication Board (DAB), handling disputes, amicable settlement, arbitration under ICC rules, and actions when a DAB decision is not complied with or absent.
Author: Victoria Tyson
04/24/2024
As simple as it seems? – an analysis of the prolongation costs clause in the FIDIC Green Book 2021
This article reflects on the introduction of an automatic contractual mechanism for calculating prolongation costs into the Green Book 2021 and will consider whether it will remove the expense of experts and lawyers from the process of claiming prolongation costs.
Author: James Reader
11/14/2023
Risks in the Construction of Hydropower Projects: Unforeseen Ground Conditions under FIDIC
Hydropower projects rely heavily on ground conditions, which are often unpredictable despite pre-tender investigations. This article explores how FIDIC contracts, especially the Emerald Book 2019, address risk allocation and mitigation in underground construction projects.
Author: Victoria Tyson
11/13/2023
Panther Pounces on Late Notice: Dubai court disagrees with Obrascon on time-bar under Sub-Clause 20.1 of FIDIC 1999
Contractors who fail to issue FIDIC 1999 Clause 20.1 notices on time risk losing claims. A DIFC Court of Appeal ruling reinterprets the 28-day notice period, challenging the Obrascon case and tightening requirements for timely contractor notifications under FIDIC contracts.
Author: Victoria Tyson
07/05/2023
The Role of the FIDIC Observer in ICC Arbitrations on FIDIC contracts
The ICC informed a recent FIDIC Conference that draft awards […]
Author: Edward Corbett
Be Nice to the Kid in the Corner: Brussels Cour de Cassation provides Charter for Overworked and/or lazy arbitrators
This article considers the court’s decision and implications in a case where an ICC Arbitral Tribunal Chair admitted that his Administrative Secretary drafted significant parts of the award, which was appealed as an unlawful delegation of authority.
Author: Victoria Tyson
07/04/2023
Soaring global construction costs under FIDIC: whose risk?
This article first appeared in IBA Construction Law International, Vol […]
Author: Joanne Clarke, Victoria Tyson
04/19/2023
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.
Author: Victoria Tyson
01/18/2023
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. A LexisNexis article produced in partnership with Victoria Tyson of Howard Kennedy.
Author: Victoria Tyson
01/10/2023
The 12 Worst Things About FIDIC 2017 – A Christmas Special
The FIDIC 2017 forms first appeared at the December FIDIC Users’ Conference four years ago. No one has suggested that the FIDIC 2017 forms of contract did not rectify some of the problems in the FIDIC 1999 forms, and in Edward Corbett’s articles,[1] ‘Cherry Picking FIDIC 2017,’ and ‘FIDIC 2017 – First Impressions of the 3-Kilo Suite’, he considered some of these changes. This new suite of contracts had, at best, a lukewarm reception when they were first reviewed, with some commentators complaining about the length of these new contracts and that the contracts had not taken account of criticisms that had been made by reviewers. This article looks at the twelve worst ‘gifts’ that FIDIC gave to us for Christmas 2017.
Author: Victoria Tyson
12/11/2022
1999 Suite: Commentary on Clause 13.8 – Variations: Adjustments for Changes in Cost
Employers avoid paying more under existing contracts, but forcing unprofitable work risks contractor insolvency. Contractors now seek protection from price fluctuations, preferring short projects or cost-plus letters of intent. Cost adjustment mechanisms, like FIDIC 1999 Sub-Clause 13.8, may help.
Author: Victoria Tyson
Tags: construction, construction and engineering disputes, Contract Price, FIDIC, price escalation
08/30/2022
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.
Author: Joanne Clarke
Tags: construction costs, costs, Exceptional events, Force Majeure, price escalation, Russo-Ukrainian, war
International Arbitration and Third Party Funding: Time to Rethink Reward and Risk?
The English Commercial Court has now confirmed in two separate decisions that an arbitral tribunal may award a winning claimant its third party funding costs. How significant are these decisions and it is time to rethink the potential reward and risk of international arbitration?
Author: Joanne Clarke
Tags: award, construction, costs, English Commercial Court, English law, Essar v Norscot, funding, international arbitration, risk, s68 Arbitration Act 1996, Tenke v Katanga
03/18/2022
FIDIC’s New Green Form: The Missing Link
In December 2021 FIDIC issued its 2nd edition of the Green Book. It is not so much an update to the 1st edition as a new and improved, intermediate form of contract. FIDIC is promoting it as a simpler, user-friendly alternative to the FIDIC 2017 Red and Yellow Books, where significant contract administration and management resources are not needed.
The Green Book 2nd edition is recommended to be used by the World Bank for projects up to US$ 10 million. The Green Book 1st edition was originally intended for projects of US $500,000 with no more than a 6-month duration. However, the Green Book 1st was sometimes used for larger projects with a duration of up to two years. The Green Book 2nd therefore takes over from where the Green Book 1st left off. This is to be welcomed. The FIDIC 2017 suite of contracts (Red/Yellow/Silver) is unsuitable for smaller projects where less administration is required. The Green Book 2nd will therefore fill a much-needed gap in the FIDIC rainbow and is likely to be attractive to both Contractors and Employers. This article looks at some of the key features of the Green Book 2nd.
Author: Victoria Tyson
Tags: FIDIC Green Book
03/08/2022
On-Demand Bonds, Injunctions and FIDIC Contracts
Bonds and guarantees will usually be required in any major construction project and they are a requirement within FIDIC standard forms. An on-demand bond is a security that unconditionally requires a Bank or other surety to pay to the beneficiary a sum of money once a demand has been made and, on occasion, on the presentation of certain documents. This can be contrasted with a normal guarantee which will usually require the beneficiary to prove a liability against the obligor/debtor who has the benefit of the guarantee. These normal types of guarantees are commonly referred to as “see to it” guarantees.[1]
Author: Victoria Tyson
Tags: 2017
11/24/2021
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.
Author: Gabriel Mulero Clas
Tags: Clause 13.6, Clause 13.7, Covid-19, delay and disruption protocol, Featured, FIDIC, FIDIC 2017
09/23/2021
The Baby is Back in the Bath: Liquidated Damages in the UK Supreme Court
In March 2019, in the English Court of Appeal, Sir […]
Author: Victoria Tyson
Tags: Featured
Arbitration Update – The new FIDIC certifications: will they pass the test?
In March 2020, FIDIC launched FIDIC Credentialing Ltd (FCL) to certify industry professionals. Though seen by some as overambitious, it aims to address real issues with FIDIC forms. This article examines one programme’s potential to solve these problems.
Author: Gabriel Mulero Clas
06/24/2021
FIDIC 2017: A Practical Legal Guide – Errata
Page Corrigenda 146 For provisions referring to sub-clause 3.7, see […]
Author: Edward Corbett
Tags: FIDIC 2017
05/28/2021
Arbitration Update 2021
This article looks at recent changes in arbitration rules, including new LCIA, DIFC-LCIA, and ICC rules, the Seoul Protocol on Video Conferencing, the Africa Arbitration Academy Protocol on Virtual Hearings, and revisions to the IBA Rules on Taking Evidence.
Author: International Construction Team
Tags: Featured
05/07/2021
‘Subject to Contract’ in English Law
This article examines the ‘subject to contract’ label in English law, its use to avoid premature binding agreements, and its interpretation in two recent court cases, highlighting that its effect depends on the specific circumstances.
Author: Joanne Clarke
Tags: construction contracts, contract, English law, Featured, Subject to Contract, without prejudice
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?
Author: Victoria Tyson
Tags: Featured, FIDIC 1999, FIDIC 2017, Gold, Yellow
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?
Author: Joanne Clarke
11/06/2020
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