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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.

By |May 21st, 2019|Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC contracts – What protection do they give contractors for employer financial problems?

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.”

By |April 4th, 2019|Delay, English Law, featured, Knowledge Hub|Comments Off on FIDIC 1999 Books – Commentary on Clause 17

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. 

By |November 14th, 2018|Delay, English Law, featured, Knowledge Hub|Comments Off on FIDIC 1999 Books – Commentary on Clause 8

Fitness for Purpose Højgaard and FIDIC’s Yellow Books

MT Højgaard AS v E.ON Climate and Renewables UK Robin Rigg East Ltd & Anor is an important English case because it considered a fitness for purpose obligation in a design and build contract. In FIDIC’s Yellow Book contracts (1999 and 2017) there are also fitness for purpose obligations. This article examines the Supreme Court’s analysis of a fitness for purpose obligation in the Højgaard case and whether it would be applied to FIDIC’s Yellow Book contracts.

By |October 29th, 2018|Design, English Law, featured, Knowledge Hub|Comments Off on Fitness for Purpose Højgaard and FIDIC’s Yellow Books

Variation Provisions in the FIDIC Yellow Book 2017

Much has already been written concerning the new FIDIC forms of contract published in December 2017. They are approximately 50 % longer and sought to set out the various procedure in much greater detail with the object of both encouraging good practice and reducing the scope for disputes. Numerous minor amendments have also been made. The purpose of this article is to look in more detail at the provisions dealing with Variations, these being amongst the most frequently scrutinised in practice.

By |October 29th, 2018|featured, Knowledge Hub|Comments Off on Variation Provisions in the FIDIC Yellow Book 2017

Unintended Consequences of the FIDIC 2017 Clause 20.1 Claims Classification System

FIDIC’s 2017 editions introduced a new Claims management system in clause 20 that channels Claims through two very different procedures. One of them is very simple and involves almost no risk whereas the other will require investment of significant project resources, will take the parties a considerable amount of time to resolve and carries fatal consequences if not followed properly. It has therefore become a priority for anyone handling this Claims management system to understand how clause 20.1 sorts the different types of Claims and to recognise that the classification scheme is not as straightforward as the wording of the Contract suggests, as explored in this article.

By |October 29th, 2018|featured, Knowledge Hub|Comments Off on Unintended Consequences of the FIDIC 2017 Clause 20.1 Claims Classification System

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 |January 23rd, 2018|featured, Knowledge Hub|Comments Off on FIDIC 2017 – Corbett & Co.’s Guide to the Main Changes

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 |December 13th, 2017|Dispute Boards, featured, Knowledge Hub|Comments Off on FIDIC 2017 – First Impressions of the 3-Kilo Suite

FIDIC 1999 Books – Commentary on Clause 19

Clause 19 deals with two distinct events: (1) Force Majeure; and (2) release from performance under the law. Force Majeure is often narrowly defined under the laws of many countries; however, within the FIDIC 1999 forms of contract it has a much broader meaning. The terminology used by FIDIC has therefore sometimes been criticized as being misleading.

By |September 28th, 2017|featured, Knowledge Hub|Comments Off on FIDIC 1999 Books – Commentary on Clause 19

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 |August 3rd, 2017|English Law, featured, Knowledge Hub|Comments Off on All Damage Is In A Sense Consequential – So What In Law Are Consequential Losses?

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 |February 8th, 2017|featured, Knowledge Hub|Comments Off on The Employer’s Agent

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 |February 8th, 2017|featured, Knowledge Hub|Comments Off on The Risk of Relying on the Obrascon case’s ruling on Sub-Clause 20.1 Claim Notices
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