8 Archives - Page 2 of 3

Clause 18 – Exceptional Events

Clause 18 – Exceptional Events

“Exceptional Events” has replaced “Force Majeure” and the provision is now clause 18 rather than clause 19 but otherwise little has changed. FIDIC appear to have decided that the term “force majeure” brought with it too much baggage for those using it in civil law jurisdictions. Many users have pre-conceptions about what force majeure is and is not and perhaps did not consider what FIDIC meant by the term. With the new term, users should approach the provision with a more open mind.

By Edward Corbett|January 27th, 2018|Knowledge Hub|Comments Off

Clause 8 – Commencement Delays and Suspension

Clause 8 – Commencement Delays and Suspension

Clause 8 - Commencement Delays and Suspension by Taner Dedezade.

By Taner Dedezade|January 27th, 2018|Delay, Knowledge Hub|Comments Off

FIDIC 2017 – Clauses & Articles

FIDIC 2017 – Clauses & Articles

FIDIC 2017 – A Practical Legal Guide – Errata. Click

By Corbett Lawyers|January 27th, 2018|Knowledge Hub|Comments Off

FIDIC 2017 – Corbett & Co.’s Guide to the Main Changes

FIDIC 2017 – Corbett & Co.’s Guide to the Main Changes

In December 2017, FIDIC launched its long-awaited 2nd Editions of the Red, Yellow and Silver Books. In these articles, the FIDIC specialists at Corbett & Co. identify and comment on the main changes in the new Yellow Book.....New vocabulary that users will have to learn include definitions of Notice, Claim and Dispute as well as Notice of No-objection and Review....

By Corbett Lawyers|January 23rd, 2018|featured, 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.

By Edward Corbett|December 13th, 2017|Dispute Boards, featured, Knowledge Hub|Comments Off

All Damage Is In A Sense Consequential – So What In Law Are Consequential Losses?

All Damage Is In A Sense Consequential – So What In Law Are Consequential Losses?

Sub-Clause 17.6 of FIDIC’s Red, Yellow and Silver Book is an exemption clause and provides in the opening paragraph that: “Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract…” The phrase ‘indirect or consequential loss or damage’ has been examined by the English courts on numerous occasions. Historically the words ‘consequential loss’ were held to be synonymous with ‘indirect loss’. However, a recent case questions whether this will be correct in all cases.

By Andrew Tweeddale|August 3rd, 2017|English Law, featured, Knowledge Hub|Comments Off

Mistake In English Law: Two Recent Cases

Mistake In English Law: Two Recent Cases

English law recognises different types of mistake and permits various equitable remedies in case of mistake, as illustrated by the two English court decisions examined in this article.

By Joanne Clarke|August 3rd, 2017|English Law, featured, Knowledge Hub|Comments Off

Penalty Clauses Down Under

Penalty Clauses Down Under

Whilst it is widely understood that the law on liquidated damages differs considerably between common law and civil law jurisdictions, there are also differences within common law jurisdictions which are sometimes overlooked. This article summarises the recent developments to the law on penalties in England and Wales, as reported by Steve Mangan in May 2016[1], and compares them with the developments to the law on penalties in Australia.

By Victoria Tyson|August 3rd, 2017|Drafting, English Law, featured, Knowledge Hub|Comments Off

The Employer’s Agent

The Employer’s Agent

The Engineer is deemed to act for the Employer and is essentially the Employer’s agent under the FIDIC Red Book 1999. He is not a wholly impartial intermediary, unless such a role is specified in the Particular Conditions, and there is no general obligation under the FIDIC Red Book 1999 for the Engineer to act independently or impartially. However, when he is required to make a determination under Sub-Clause 3.5, he is obliged to make it a fair determination and when he is obliged to issue an Interim Payment Certificate under Sub-Clause 14.6, or a Final Payment Certificate under Sub-Clause 14.13, he must fairly determine the amount due.

By Victoria Tyson|February 8th, 2017|featured, Knowledge Hub|Comments Off

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

Knowledge Hub – FIDIC 1999 Books Clause Commentaries

Click on any of the documents below to read Corbett

By Corbett Lawyers|December 21st, 2016|Knowledge Hub|Comments Off

Murphy’s Law

Murphy’s Law

Earlier this year, the English High Court considered a heavily amended FIDIC Yellow Book 1999. Whilst the case is specific to the particular contractual amendments it is worth review. The case is J Murphy & Sons Ltd v Beckton Energy Ltd. It proceeded in court and on an expedited basis as a matter of some urgency because a bond was about to be called for non-payment of delay damages. The Contractor claimed the call would affect his commercial reputation, standing and creditworthiness, and may well need to be disclosed in future tenders. He had not paid the delay damages because there had been no agreement or determination of the entitlement to such by the Engineer under Sub-Clauses 2.5 and 3.5.

By Victoria Tyson|October 3rd, 2016|Bonds, Delay, English Law, Knowledge Hub|Comments Off

The SCL’s New Take on the Delay and Disruption Protocol

The SCL’s New Take on the Delay and Disruption Protocol

In June of this year, the Society of Construction Law (“SCL”) sent its members a draft of the second edition of its widely recognised Delay and Disruption Protocol. It follows the publication of a Rider published late last year about which this author wrote a previous article. Although the “2016 Draft” is meant to be consultatory, there are a number of improvements from the “2002 Edition” worth exploring before the final and definitive version is published sometime in the future. There have been many changes not all of which will be covered in this article and, in any case, I will only focus on changes other than those already included in the Rider.

By Gabriel Mulero Clas|October 3rd, 2016|Delay, Knowledge Hub|Comments Off

The Highest UK Court Reviews The Law On Penalties

The Highest UK Court Reviews The Law On Penalties

A penalty is now to be regarded as: “a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.” The UK Supreme Court has reviewed the English law of penalties and re-formulated the test in a landmark judgment on two unrelated appeals heard together: (1) Cavendish Square Holding BV – v – Talal El Makdessi (“Cavendish”); and (2) ParkingEye Ltd – v – Beavis ("Beavis").

By Steve Mangan|May 24th, 2016|English Law, Knowledge Hub|Comments Off

Frozen Out

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.

By Victoria Tyson|December 16th, 2015|Knowledge Hub|Comments Off

Where Do FIDIC Cases Go?

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.

By Joanne Clarke|December 16th, 2015|Arbitration, Dispute Boards, Knowledge Hub|Comments Off

Employers Beware

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.

By Victoria Tyson|December 16th, 2015|Knowledge Hub|Comments Off

PERSERO 2 – Singapore Court of Appeal rules DAB decisions are enforceable by way of interim award

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.

By Taner Dedezade|September 14th, 2015|Dispute Boards, Knowledge Hub|Comments Off

FIDIC’S procedures for the appointment of a DAB need improvement

FIDIC’S procedures for the appointment of a DAB need improvement

If the parties to a FIDIC contract cannot agree on a suitable DAB member and they have selected FIDIC as their appointing entity, they may request FIDIC to appoint that DAB member. FIDIC’s present procedures however seem less than ideal. They increase the prospect of rejection of the candidate nominated by FIDIC in the first instance and so also the need to repeat the exercise. They could also result in an appointment unacceptable to one or both parties. In my view they need to be revised.

By Steve Mangan|September 14th, 2015|Dispute Boards, Knowledge Hub|Comments Off

Release from Performance – FIDIC’s Clause 19.7 and Other Remedies

Release from Performance – FIDIC’s Clause 19.7 and Other Remedies

Is not uncommon to find that an employer attempts to pass almost all risk in a contract to the contractor. However, such an approach may have unforeseen consequences when events later make completion of the works impossible. Here Andrew Tweeddale considers how and when a contractor might be released from further performance.

By Andrew Tweeddale|September 4th, 2015|Knowledge Hub|Comments Off

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