sub-clause 3.5 Archives - Corbett & Co.

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

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

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