20.1 Archives - Page 2 of 2

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 Gabriel Mulero Clas|February 8th, 2017|featured, Knowledge Hub|Comments Off

FIDIC 1999 Books – Commentary on Clause 13

FIDIC 1999 Books – Commentary on Clause 13

Sub-Clause 13.1 deals with the right of the Engineer to vary the Contract. This right can be exercised at any time up to the issue of the Taking-Over Certificate. Sub-Clause 13.2 deals with value engineering and permits the Contractor to propose a change which will benefit the Employer. The proposal is prepared at the cost of the Contractor, who designs the change. Sub-Clause 13.3 deals with the procedure prior to the Engineer instructing a variation. The Engineer may request a proposal from the Contractor. However, while the Contractor is preparing the proposal it must proceed with the works. Sub-Clause 13.4 deals with payment in applicable currencies. Sub-Clause 13.5 deals with Provisional Sums and ought to be read with Sub-Clause 1.1.4.10 which defines Provisional Sum as follows:- “a sum (if any) which is specified in the Contract as a provisional sum, for the execution of any part of the Works or for the supply of Plant, Materials or services under Sub-Clause 13.5 [Provisional Sums].” The Provisional Sum can only be used where there is an Engineer’s instruction and the Contractor receives payment for only the work done to which the Provisional Sum relates. Sub-Clause 13.6 deals with daywork. This is where work of a minor or incidental nature is to be carried out. The work is then valued in accordance with the Daywork Schedule in the Contract or if there is no Daywork Schedule then the alternative method of payment as prescribed in the Contract. Sub-Clause 13.7 deals with the Cost arising from changes in the Laws of the Country which affect the Contractor in performance of his obligations under the Contract. Where the Contractor suffers delay or additional Cost then it must give notice under Sub-Clause 20.1 of the Contract. Sub-Clause 13.8 deals with adjustments for changes in cost. This Sub-Clause only applies where the “table of adjustment data” included in the Appendix to Tender has been completed. If the Sub-Clause does apply then the amounts payable to the Contractor for rises and fall in the cost of the Works are adjusted by a formula.

By Andrew Tweeddale|August 11th, 2016|Knowledge Hub|Comments Off

The Courtesy Trap – FIDIC’s Sub-Clause 20.5 – Amicable Settlement and Emirates Trading

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.

By Andrew Tweeddale|August 11th, 2016|Arbitration, Knowledge Hub|Comments Off

FIDIC’s Sub-Clause 20.5 – A Condition Precedent to Arbitration

FIDIC’s Sub-Clause 20.5 – A Condition Precedent to Arbitration

The 1999 FIDIC forms of contract contain a number of obligations and/or conditions precedent that require (a) a party to give notice of a claim (Sub-Clauses 20.1 and 2.5); (b) refer the claim to the Engineer (Sub-Clauses 20.1 and 3.5); and (c) submit the dispute to a Dispute Adjudication Board (“DAB”) (Sub-Clause 20.4). If either party gives a notice of dissatisfaction relating to the DAB’s Decision then Sub-Clause 20.5 provides that: “Where notice of dissatisfaction has been given under Sub-Clause 20.4 above, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made.”

By Andrew Tweeddale|December 16th, 2015|Adjudication / Dispute Boards / ADR, Arbitration, Knowledge Hub|Comments Off

Court of Appeal confirms judgment in Obrascon v Gibraltar

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. Corbett & Co. acted for the Government of Gibraltar.

By Edward Corbett|July 9th, 2015|Knowledge Hub|Comments Off

Time’s up for FIDIC’s Pink Book?

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.

By Edward Corbett|March 9th, 2015|Knowledge Hub|Comments Off

Comparison between the Red Book 1999 and the MDB Harmonised Edition Pink Book 2010

Comparison between the Red Book 1999 and the MDB Harmonised Edition Pink Book 2010

Read the full article here.

By Edward Corbett|January 1st, 2015|Knowledge Hub|Comments Off

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

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

Read the full article here.

By Taner Dedezade|January 1st, 2014|Arbitration, Dispute Boards, Knowledge Hub|Comments Off

Commencement of Arbitration and Time Bar Clauses

Commencement of Arbitration and Time Bar Clauses

This article considers how English courts construe time-bar clauses and whether there is an advantage in having an arbitration clause in a contract where there is a time-bar clause. It is now common to find time-bar provisions in many of the major forms of construction contracts. They appear in NEC 3, in the FIDIC suite of contracts and the ICE forms. Sub clause 20.1 of the FIDIC forms of contract, for example, creates a time-bar that gives a Contractor just a mere 28 days to put in a notice of a claim for additional cost or an extension of time. Given that the effect of a failure to issue a 28-day notice is an apparent bar on any claim, it is unsurprising that time-bar clauses have been the subject of much consideration and review. Recent decisions in the courts show that these clauses are being construed strictly. This has led one leading English lawyer, in a paper on the FIDIC forms of contract, to comment that quite possibly there are no ways round a sub-cl.20.1 notice.

By Andrew Tweeddale|November 1st, 2009|Arbitration, Knowledge Hub|Comments Off

Get in touch