Page 6 of 6
The Courtesy Trap – FIDIC’s Sub-Clause 20.5 – Amicable Settlement and Emirates Trading
In this article Corbett & Co. Director Andrew Tweeddale addresses whether sub-clause 20.5 is a condition precedent to the commencement of an arbitration or whether it is an obligation, the breach of which will not affect the jurisdiction of the arbitral tribunal to resolve the dispute.
Tags: clause 67.2, FIDIC 4th edition, FIDIC Red Book, FIDIC Silver Book, FIDIC Yellow Book, sub-clause 2.5, sub-clause 20.1, sub-clause 20.4, sub-Clause 20.5, sub-clause 3.5
08/11/2016
1999 Suite: Commentary on Clause 05 – Nominated Subcontractors
Clause 5 defines a “nominated Sub-Contractor” and allows the Contractor to object on reasonable grounds. If the Employer insists on employing the Sub-Contractor, it must indemnify the Contractor. Payments to the Sub-Contractor are certified by the Engineer.
Author: International Construction Team
Tags: Re-nomination, Subcontractor
08/01/2016
ICC Arbitration – Penalties for Slow Arbitrators
In its bulletin of 5 January 2016, the ICC announced penalties to encourage arbitrators to deliver up their awards more quickly than at present. The tardiness of some arbitrators has long been cause for major discontent amongst both lawyers and clients. Corbett & Co.’s worst experience was a sole arbitrator who took more than 18 months to issue an award on a preliminary issue!
Author: Victoria Tyson
Tags: ICC arbitration, ICC award
05/24/2016
Frozen Out
What relief does FIDIC provide when bank accounts are frozen as a result of war, hostilities, rebellion, terrorism etc.? Maybe not as much as you think.
Tensions in Africa and the Middle East have seen the implementation of numerous international financial sanctions. While these sanction regimes vary in execution and enforcement they often freeze assets and prevent financial transactions. These restrictions may impact on the Employer’s performance of its payment obligations under the Contract. This can have serious consequences where the Contractor is entitled to suspend or terminate on notice for non-payment. Many parties automatically assume that financial sanctions will be recognised as force majeure. However, this may not be the case.
Author: Victoria Tyson
Tags: FIDIC, Force Majeure, sub-clause 14.8, sub-clause 16.1, sub-clause 16.2, sub-clause 19.1, sub-clause 19.2, sub-clause 19.6, sub-clause 19.7
12/16/2015
Where Do FIDIC Cases Go?
FIDIC is arguably the most widely used standard form of international construction contract but reported FIDIC cases are rare. Is it time for an increased publication of FIDIC cases?
There are three categories of decisions arising out of FIDIC dispute resolution provisions:
1. Decisions of the Engineer or the Dispute Adjudication Board (DAB), which will generally not be published or reported to anyone other than the parties involved in the dispute.
2. Decisions of arbitral tribunals, which are not usually made public although this is subject to certain exceptions.
3. Decisions of national courts, which are a relatively rare occurrence for the reasons discussed below.
Author: Joanne Clarke
Tags: 1999 Red Book, 1999 Yellow Book, arbitration, DAB, FIDIC, FIDIC-related arbitral awards, ICC, reported FIDIC cases
Society of Construction Law’s Rider 1 to its Delay and Disruption Protocol
In July of this year, the Society of Construction Law (SCL) published Rider 1 (“the Rider”) of its 2002 Delay and Disruption Protocol (“the Protocol”). The Rider’s Preamble lists a series of amendments to the Protocol intended to serve as an update reflecting (a) legal and industry practice developments, (b) feedback, (c) technological developments, (d) increase in scale of larger projects, and (e) international use of the Protocol. The Rider is intended to serve as the first part of the amendments to the Protocol, the totality of which should feature in a consolidated and updated version of the Protocol later this year.[1]
Author: Gabriel Mulero Clas
Tags: delay and disruption protocol, Protocol, Rider 1, SCL
Employers Beware
How important is it for an Employer to give a Sub-Clause 2.5 notice of a set-off or cross-claim under the FIDIC Red Book form of contract? Very, according to the Privy Council in NH International (Caribbean) Limited v National Insurance Property Development Company Limited . It found that:
o Sub-Clause 2.5 applies to any claims the Employer wishes to make.
o The Employer must make such claims promptly and in a particularised form.
o Where the Employer fails to raise a claim as required, the back door of set-off or cross-claims is firmly shut.
The case also serves as a warning to Employers who take a relaxed view towards their obligation under Sub-Clause 2.4 to provide reasonable evidence of the financial arrangements they have made and are maintaining to pay the Contract Price. It doesn’t matter how wealthy or important the Employer is (it may be a Government, company or individual with very substantial funds) detailed financial information must still be provided.
Author: Victoria Tyson
Tags: Contract Price, FIDIC, FIDIC Red Book, sub-clause 2.4, sub-clause 2.5
Aspect v Higgins: The Final Reckoning
The English Supreme Court has ruled that losers in adjudications have six years to challenge an adjudicator’s decision from the payment date, while winners’ rights to seek improvement end with the original claim’s limitation period. This article considers the implications.
Author: Joanne Clarke
Tags: adjudication, Aspect v Higgins, limitation period, recovery of monies, restitution argument, Supreme Court, TCC, The Contract Argument, The Restitution Argument
09/14/2015
PERSERO 2 – Singapore Court of Appeal rules DAB decisions are enforceable by way of interim award
On 27 May 2015, the 160-page reserved judgement of the Singapore Court of Appeal (“CA”) was handed down in Persero 2 – PT Perusahaan Gas Negara (Persero) TBK (“PGN”) v CRW Joint Operation (“CRW”)[1]. It will be regarded a triumph for contractors wishing to enforce DAB decisions. The CA ruled that the interim award issued by the arbitral tribunal ordering enforcement of the DAB’s decision should stand. Using the concept of an “inherent premise”, the CA made two important findings: 1) it was not necessary for the Contractor to refer the failure to pay (the secondary dispute) back to the DAB; and 2) it was not necessary for him to refer the merits (the primary dispute) in the same single arbitration as his application to enforce.
Author: Victoria Tyson
Tags: 1999 Red Book, arbitration tribunal, DAB, FIDIC, FIDIC Red Book, inherent premise, interim award, Singapore, Singapore Court of Appeal, sub-clause 20.4, sub-Clause 20.5, sub-clause 20.6, sub-clause 20.7
Direct Claims by Subcontractors against Employers
A summary of contributions from around the world from members of the Cornerstone FIDIC Group on LinkedIn.
Author: Edward Corbett
Tags: direct claims, FIDIC, FIDIC claims, subcontractors
08/04/2015
Court of Appeal confirms judgment in Obrascon v Gibraltar
The Judgment of Sir Robert Akenhead has been upheld and OHL’s appeals have been dismissed. The judgment was a rare excursion by the TCC into the FIDIC contract and considered unforeseen ground conditions, termination and notice under cl.20.1.
Author: Edward Corbett
Tags: FIDIC, FIDIC contract, Government of Gibraltar, Obrascon v Gibraltar, TCC
07/09/2015
Time’s up for FIDIC’s Pink Book?
Rumour reaches us that the Multilateral Development Banks (MDBs) behind the Pink Book, FIDIC’s harmonised version of the 1999 Red Book, will discontinue the experiment. Should we be sorry to see the back of the Pink Book? We think not.
Author: Edward Corbett
Tags: 1999 Red Book, 2nd Editions of Red, Clause 14.2, Clause 14.9, Clause 15.5, Clause 16.4, Clause 20.1, Clause 3.5, Clause 4.2, Clause 8.1, clauses 15.6-16.2, FIDIC, FIDIC Red Book, FIDIC Silver Book, FIDIC Yellow Book, MDBs, Multilateral Development Banks, Pink Book, Yellow and Silver Books
03/09/2015
Can an Employer Instruct an Airport Instead of a Road?
What is the point of a variations clause? It is […]
Author: International Construction Team
Tags: Clause 13, FIDIC Red Book, FIDIC Silver Book, FIDIC standard forms, FIDIC Variation Clause, FIDIC Yellow Book, sub-clause 13.1 Airports
Time Waits for no Man – So you think the Adjudicator got it wrong? How long do you have to challenge the decision?
How long have you got to challenge the adjudicator’s decision? The English Court of Appeal has decided:
1) the claimant who considers the adjudicator awarded too little must challenge before the original limitation period for his claim expires; and 2) the defendant who considers he paid too much has a new limitation period starting on the day he paid the adjudicator’s decision.
Is it unfair that the loser may have years longer than the winner? That question will soon be answered by the Supreme Court of the United Kingdom. Their decision will be of interest to anyone involved with FIDIC DABs anywhere in the world.
Author: International Construction Team
Tags: adjudication law, Aspect v Higgins, DAB, FIDIC, TCC, UK statutory adjudication
Comparison between the Red Book 1999 and the MDB Harmonised Edition Pink Book 2010
Read the full article here.
Author: Edward Corbett
Tags: FIDIC, MDB Harmonised Edition 2010, Pink Book 2010, Red Book 1999
01/01/2015
Can a party ignore FIDIC’s DAB process and refer its dispute directly to arbitration?
If there is no DAB appointed by parties to a FIDIC 1999 contract, may disputes be referred directly to arbitration under Clause 20.8? This issue has troubled many in the industry – and has now been considered in English and Swiss courts.
Author: Joanne Clarke
Tags: 1999 Red, DAA, DAB, DAB process, FIDIC, FIDIC 1999 contract, Red Book, Silver Book, sub-clause 20.2, sub-clause 20.3, sub-clause 20.8, sub-clauses 20.5 and 20.6, Yellow and Silver Books, Yellow Book
11/17/2014
Indemnity Costs – you’ll be lucky! Interim Payment of Costs – definitely maybe
Even if a claimant has achieved complete success in litigation, it remains exceptionally difficult to recover legal costs on an indemnity basis, as this case demonstrates. Costs will most likely be recovered on the standard basis – at least in the absence of bad conduct during the litigation itself. This case also indicates that the court will generally limit an interim payment of costs to two-thirds of an approved costs budget.
Author: Victoria Tyson
Tags: 1999 Yellow Book, Airports, FIDIC, GoG, indemnity costs, interim payment, Obrascon v Gibraltar, OHL
11/12/2014
Light at the end of the tunnel? Gibraltar dispute reviews key FIDIC Yellow Book provisions
As disputes under the FIDIC forms of contract are normally resolved in private Dispute Adjudication Board (“DAB”) proceedings or confidential arbitration proceedings, reported FIDIC cases are rare and often of considerable precdential value either formally or informally. In this article, originally published in The International Construction Law Review, Victoria Tyson considers one such recent decision which was transferred from the Gibraltar courts.
Author: Victoria Tyson
Tags: 1999 Yellow Book, arbitration, DAB, FIDIC, International Construction Law Review, TCC, Technology and Construction Court, Yellow Book
09/14/2014
Tunnel Vision: The English High Court Considers the FIDIC Yellow Book
The English Court considers termination and notice provisions under the FIDIC Yellow Book 1999.
How are clause 15.1 notices to correct limited?
Do termination events have to be repudiations?
Is it fatal to serve notice of termination on the ’wrong’ address?
When does the 28-day period under clause 20.1 start to run? Mr Justice Akenhead offers guidance to the industry.
Author: Victoria Tyson
Tags: 1999 Yellow Book, address for service of notices, Airports, English High Court, FIDIC, GoG, notice, Obrascon v Gibraltar, OHL, sub-clause 20.2, termination, Yellow Book
09/01/2014
Mind The Gap: Analysis of Cases and Principles Concerning the Ability of ICC Arbitral Tribunals to Enforce Binding DAB Decisions Under the 1999 FIDIC Conditions of Contract
Published in International Arbitration Law Review This article is divided […]
Author: Victoria Tyson
Tags: arbitration, binding but not final DAB decisions, binding DAB decision, Dispute Resolution, Enforcement of DAB awards, enforcing binding DAB awards, FIDIC 1999, final award, ICC arbitration, interim award, Interim relief, partial award, Persero
01/01/2014
Enforcement of DAB decisions – The legal justification for the ‘enforcement’ of a ‘binding’ DAB decision under the FIDIC 1999 Red Book
A previous article proposed that difficult questions arose from recent […]
Author: Joanne Clarke
Tags: damages for breach of sub-clause 20.4, Enforcement of DAB awards, enforcing binding and final DAB awards, FIDIC, FIDIC 1999, final award, ICC rules, interim award, order, partial award, power to grant specific performance, provisional award
03/01/2012
Are you in? Or are you out? An analysis of Section 69 of the English Arbitration Act 1996: Appeals on a question of law
Parties should decide early whether to include court jurisdiction for appeals on legal questions in arbitration. Excluding court jurisdiction ensures finality, cost savings, and speed. Including it addresses concerns about arbitrators’ legal interpretation abilities. The 1996 Act allows this choice.
Author: Victoria Tyson
Tags: arbitration, exclusion of court's jurisdiction, permission to appeal in arbitration, right to appeal on a question of law in arbitration, s69 Arbitration Act 1996
01/01/2006
Page 6 of 6
Search
Terms & Conditions
The content of the Knowledge Hub is not legal advice. You should always consult a suitably qualified lawyer regarding a particular legal issue or problem that you have. Please contact us if you require legal assistance.