Civil Engineering Reference
In-Depth Information
may refer that failure to arbitration. It is likely that this same provision will make its
way into the other FIDIC forms in due course. In the meantime, the FIDIC Contracts
Committee has issued a Guidance Note dated 1 April 2013 in relation to the Red,
Yellow and Silver Books. his provides suggested amendments to the relevant clauses
to close the loophole.
Other issues which would affect enforceability could include the DAB exceeding its
jurisdiction to consider the dispute referred to it, failure to act in accord with the rules
of natural justice, and failure to make a decision within the contractual time limits.
The importance of time limits is apparent from ICC case 10619, 2001 and 2002. It
dealtwithenforcementofanEngineer'sdecision.hecaseconcernedtheconstruction
of a road in an African state. he Engineer under the FIDIC Red Book Fourth Edition
(1987) had made four decisions. The employer refused to implement them. The con-
tractor commenced an arbitration relating to a number of matters. They also sought
an interim decision that the employer should give effect to the Engineer's decisions
andanawardforimmediatepaymentonthebasisofthosedecisions.
The arbitral tribunal refused to enforce two of the decisions because the contract
requiredadecisionwithin84daysandthedecisionswerelate.heothertwohadbeen
made timeously. The contract required the decisions to have an immediate binding
efectonparties.hetribunalthereforeorderedpaymentinrelationtothese.
