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FIDIC 1999 Books – Commentary on Clause 6
Clause 6 deals with Staff and Labour. These provisions need to be read with the applicable laws where the works are being carried out or the relevant employment law if different.
Sub-Clause 6.1 commits the Contractor (unless otherwise specified) to pay for his staff and their housing feeding and transport.
Sub-Clause 6.2 requires the Contractor not to pay lower wages or give lower conditions than those generally applicable locally.
Sub-Clause 6.3 forbids the Contractor from attempting to recruit from the Employer’s Personnel.
Sub-Clause 6.4 requires the Contractor to abide by labour laws and to require his staff to obey the law generally.
Sub-Clause 6.5 forbids work on locally recognised rest days or outside the working hours set out in the Appendix to Tender, unless stated in the Contract or agreed to by the Engineer or essential for the protection of life or property or for safety reasons.
Sub-Clause 6.6 requires the Contractor to provide and maintain all necessary accommodation for its personnel and for the Employer’s personnel to the extent stated in the Specification. It is forbidden from permitting its own Personnel from living within the structures forming part of the Permanent Works.
Sub-Clause 6.7 requires the Contractor to maintain the health and safety of its personnel and maintain proper medical facilities for its own personnel and for any Employer Personnel accommodated. It is required to appoint an accident prevention officer. It is required to notify the Employer of any accidents and maintain records.
Sub-Clause 6.8 requires the Contractor to provide all necessary superintendence by a sufficient number of properly qualified people with adequate knowledge of the defined language of communications.
Sub-Clause 6.9 requires the Contractor to ensure that its personnel are properly qualified, skilled and experienced. The Employer may require the Contractor to remove any person employed on the Site or the Works who commits misconduct, is incompetent or negligent, fails to perform in accordance with any provision of the Contract or persists in any conduct prejudicial to health, safety or the environment. If a person is removed the Contractor will have to replace him.
Sub-Clause 6.10 requires the Contractor to submit to the Engineer details showing personnel and equipment on Site. This is required each month and must be in a form approved by the Engineer.
Sub-Clause 6.11 requires the Contractor to take reasonable precautions to prevent disorderly conduct by Contractor’s Personnel and to preserve the peace and protection or nearby persons and property.
Author: Andrew Tweeddale, George Rosenberg
Tags: Clause 6, FIDIC 1999 Red Book, Staff and Labour
November 14, 2018
FIDIC 1999 Books – Commentary on Clause 7
Click through to read Corbett & Co.’s helpful commentary on FIDIC Red Book 1999 book – Clause 7
Author: George Rosenberg
Tags: Featured
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.
Author: Andrew Tweeddale, Corbett Lawyers
Tags: Clause 8, Clause 8.1, clause 8.5, Featured, FIDIC 1999 Red Book, FIDIC 4th edition, FIDIC 4th edition of Red Book, Red Book 4th Edition, sub-clause 8.2
FIDIC 1999 Books – Commentary on Clause 17
Although Clause 17 is titled ‘Risk and Responsibility’ it also sets out other provisions relating to indemnities, limitation of liability and, unusually, the specific topic of intellectual and industrial property rights. The clause provides that the Contractor assumes responsibility and bears the risk for the care of the works during execution and for remedying any defects during the Defects Notification Period. Risk transfers to the Employer on issue of the Taking–Over Certificate to the extent of works defined as being completed.
Generally, in construction contracts ‘risk’ is understood to mean an event or circumstance which causes delay, loss or damage to the Works. A risk can be said to be Employer caused, Contractor caused or neutral. The purpose of risk allocation is to determine which party bears the risk for such events. The Contractor may be required to remediate the damage at his own cost or the Employer may be required to pay for the damaged works. It has been stated that the “FIDIC standard forms are generally recognised as being well balanced because both parties bear parts of the risks arising from the project.”
Author: Andrew Tweeddale, Corbett Lawyers
Tags: Featured
April 4, 2019
Arbitration in a Post-Brexit World
This article considers what the arbitration landscape will look like when (or perhaps if!) the UK leaves the EU and concludes that big changes are unlikely.
Author: Andrew Tweeddale, Corbett Lawyers
Tags: arbitration
May 21, 2019
FIDIC contracts – What protection do they give contractors for employer financial problems?
In all construction contracts, one of the central principles is the Employer’s obligation to pay the contract price. The Contractor will be wary about the Employer’s financial standing and ability to pay and concerned to ensure that payments are made on time and that effective remedies are available in case of late or non-payment. The FIDIC standard forms of contract contain provisions dealing with these aspects.
Author: Joanne Clarke
No EOT for Concurrent Delay, if so Agreed
Contract clauses that deny a contractor entitlement to an extension of time for concurrent delays caused by both employer and contractor are valid in principle. In North Midland Building Ltd -V- Cyden Homes Ltd [1] the Court of Appeal of England and Wales has ruled that such clauses do not offend the common law prevention principle. Nor do they give rise to an implied term to prohibit the imposition of delay damages that may result.
Author: Steve Mangan
Tags: Concurrent Delay, EOT, implied term
No Oral Modification Clauses Mean What They Say
Will an oral agreement override a written one that expressly prohibits oral modification? No. The UK Supreme Court in Rock Advertising Ltd – v – MWB Business Exchange Centres Ltd[1] brings welcome clarification to the English common law on “no oral modification” (NOM) clauses. The courts will now uphold them.
Author: Steve Mangan
Africa
Experience includes: Road projects in Ethiopia, Malawi, Kampala, Uganda Building […]
Tags: Egypt, Ethiopia, Kampala, Malawi, Sudan, Tanzania, Tunisia, Uganda, West Africa
September 10, 2019
FIDIC’s Emerald Book – A contractor’s charter or optimum risk allocation?
It has been suggested that FIDIC’s new Emerald Book may be “a contractors’ charter for riches”. 1 This article examines whether this new form of contract for underground works by FIDIC and the International Tunnelling and Underground Space Association is too contractor-biased or whether it provides a sensible and pragmatic risk allocation process, in an area of construction and engineering which is well known for claims. If more risks are placed on the Employer in this form of contract, what are the benefits of the contract compared to, for example, an unamended FIDIC Yellow Book?
Author: Andrew Tweeddale, Corbett Lawyers
Tags: FIDIC, FIDIC Emerald Book
March 10, 2020
Pay attention Bond!
The recent English case Sumitomo Mitsui Banking Corporation Europe Limited v Euler Hermes Europe SA (NV) [2019] EWHC 2250 (Comm) highlights that where an on demand bond is assigned and a demand then made under that bond, the beneficiary will need to be sure not only that the demand is compliant with the terms of the bond but also that the assignment was effective in the first place.
Author: Joanne Clarke
Tags: Bond, construction contracts, Featured, FIDIC, guarantee, retention bond, Sumitomo
FIDIC’S Golden Principles – holding back the tide?
FIDIC is concerned about its image. It says that heavily amending the FIDIC forms of contract impacts upon the FIDIC brand and that this is damaging FIDIC’s reputation. It seeks to address this with the introduction of five Golden Principles. But the Golden Principles are merely aspirational; they are not binding and have no contractual effect. Does this render them a pointless gesture ‘trying to hold back the tide’?
Author: Victoria Tyson
Tags: Featured, golden principles
Covid-19 and FIDIC contracts – what protections and entitlements?
Author: Corbett Lawyers
Tags: Featured
May 22, 2020
Del tiempo y dinero en contratos FIDIC durante Covid-19
El efecto del coronavirus en la construcción es amplio y desconocido, en particular, en cómo evaluar el tiempo y el dinero perdido. Por fortuna, los contratos FIDIC proveen varias opciones a las Partes para manejar riesgos y proteger derechos. Este artículo analiza cómo se trataría la pandemia del Covid-19 bajo el Contrato de Construcción de Obras FIDIC 2010 armonizado por el Banco Mundial en español.
Author: Gabriel Mulero Clas
Tags: Covid-19, Espanol, Featured, FIDIC, FIDIC contracts, Force Majeure
June 18, 2020
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: Andrew Tweeddale, Corbett Lawyers
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
‘Subject to Contract’ in English Law
This article considers the label ‘subject to contract’ in English law and two recent English court decisions which consider the effect of this label in different factual circumstances.
Parties who are negotiating a contract may use the label ‘subject to contract’ to ensure that they do not enter into a binding agreement before they are ready to do so. This can be particularly important in English law when a binding agreement can be reached (with a few exceptions) without any particular formalities. However, the label is not unassailable and whether it has the required effect will always depend on the circumstances.
Author: Joanne Clarke
Tags: construction contracts, contract, English law, Featured, Subject to Contract, without prejudice
Arbitration Update 2021
The last year or two has seen changes in arbitration rules and procedures, caused in no small part by the COVID-19 pandemic. There are new LCIA, DIFC-LCIA and ICC arbitration rules. The Seoul Protocol on Video Conferencing in International Arbitration is being regularly used and the Africa Arbitration Academy Protocol on Virtual Hearings has been issued. There have also been revisions to the IBA Rules on Taking Evidence in International Arbitration. This short update looks at the key take-aways from these changes.
Author: Andrew Tweeddale, Corbett Lawyers
Tags: Featured
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: Corbett Lawyers
Tags: Featured
September 23, 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
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: Andrew Tweeddale
Tags: 2017
November 24, 2021
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