What Qualifies as Force Majeure Under FIDIC?

One of our blog subscribers requested advice on force majeure under the FIDIC Red or Yellow books. The good news is that the FIDIC force majeure clauses are nearly the same under the Red, Yellow, Silver, and Gold forms of contract, so the following is applicable to all of them. Sub-Clause 19.1 (Definition of Force Majeure) the Red Book states that: ‘In this Clause, "Force Majeure" means an exceptional event or circumstance:      (a) which is beyond a Party's control,      (b) which such Party could not reasonably have provided against before entering into the Contract,      (c) which, having arisen, such Party could not reasonably have avoided overcome, and      (d) which is not substantially attributable to the other Party.’ Thus, to qualify as a force majeure event, it has to tick all of the boxes (a) to (d) above. The clause, however, goes on to offer further definitions as follows: Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind…

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Top 10 Tips for Effective Letter Writing

One of the things that I notice upon reviewing the records to prepare a claim, reviewing claims on behalf of the respondent, or reviewing the particulars put forward in a dispute, is the poor standard of letter writing. This ranges from “could have been better” right through to “I have no idea what this letter means”. If your letters fall into this category, you are not doing yourself or your company any favours and you could be doing considerable harm. This blog, therefore, contains my Top 10 Tips for effective letter writing. You are not writing the letter for your opposite number on the project. You are writing it as an accurate record to be relied upon in case a claim or dispute arises in the future. The letter must, therefore, be fully understood by someone who has no prior knowledge of the project or the matters in question. The letter should be a stand-alone document. In other words, a reader with no prior knowledge should be able to understand it without reference to any…

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Contractors: Are your claims responded to correctly?

EC Harris’ (now Arcadis) Global Construction Disputes Report has, for many years, cited inadequately expressed claims as being one of the top five causes of disputes in the construction industry. Although the reports do not specifically mention it, I suspect that inadequate and unfair determinations should also be somewhere near the top of this list. This is because I frequently hear complaints that a claim has not been responded to either fairly or in a meaningful way. So, what is the problem? If we consider the FIDIC forms of contract as fairly typical of the widely-used forms of contract, we can see that the Engineer has the following obligations when responding to claims: Respond to the claim within 42 days - Sub-Clause 20.1 (Contractor’s Claims); In a case of rejection, respond with detailed comments - Sub-Clause 20.1 (Contractor’s Claims); Include sums that the Engineer considers to have been reasonably substantiated as being due in interim payment certificates - Sub-Clause…

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Improve Claims By Effectively Using Visuals in Narratives

A student once raised the point to me that graphics and other visuals can be effectively used to enhance a claim document and I have to agree with him on this point, provided that some basic rules are followed. While some people see and understand things better through pictures, others prefer the written word.  I have to admit that I am one of the latter in this respect. When presented with a claim which consists almost entirely of charts, tables and other graphical representations, I have simply not been able to understand it, because there have not been any written explanations of the graphics. This is something to do with the left and right sides of the brain and one will be stronger than the other in most people. Unfortunately, we seldom know what type of brain the people who will eventually read our claim will have, so it is definitely a good idea to appeal to both types. What is absolutely vital for the success of a claim is that the respondent is able to understand the contents…

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Claim Appendices and Editing

In previous ICCP blogs we have dealt with what should be included in a claim narrative and how the narrative should be formatted, presented and written to enhance the chances of an award being made in a timely manner. In this blog, we discuss the records, evidence and substantiation of the claim, how they should be presented within the document and the final stages that you need to go through before the claim is ready for submission. Arrangement of the Appendices When the claim narrative has been completed, we usually sit back and congratulate ourselves because all the research, the collecting of evidence and the hard work of writing the narrative has been completed. Unfortunately, however, we still have quite a lot of work to do to put the claim document in a suitable condition for submission. In previous Top Tips papers, we discussed the subjects of making the document user-friendly and ensuring that it is a stand-alone document with the inclusion of exhibits and additional…

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