sub-Clause 20.5 Archives

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 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

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

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