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Contract’s Dispute
Resolution Mechanism
Presentation to the Asian
International Arbitration Centre
(AIAC)
Kuala Lumpur
John Coghlan
Principal
C&E Legal Solutions
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• Boutique Law Firm
• Construction & Engineering Law only
• Full range of specialists Construction & Engineering legal advice on international projects across the globe
• Over 30 years experience within the construction and engineering industry – subcontractor/lawyer
• Services
1. Contract Documents
• Draft clear and concise contracts and complete contract reviews
2. Project Delivery/Outsourced Project Counsel (OPC)
• OPC work with Client’s Project Delivery Team to provide specialist practical cost effective legal solutions at any stage of a
project’s lifecycle
3. Dispute Resolution
• Advise on litigation and all forms of alternative dispute resolution (ADR) to achieve the best outcome for the Client.
• Sectors
• Built Environment’s Key Sectors
• Commercial Property, Healthcare, Housing, Leisure, Oil & Gas, Power, Transport and Water
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• Approach
• Leading Cloud Based Legal Technology: Case Management Systems / Client Portal
• Modern Day Work Practices: Agile Working = Global Reach
• We identify the legal consultants with the right skill set to match the Client’s needs and fit within their
team. Ensuring that we provide the Client with best bespoke practical legal solution to overcome their
challenges
• Local Law Firms: Strong relationships with key local law firms in all major jurisdictions
• Barristers/Advocates: Strong relationship with the leading construction and engineering law chambers
• (c) Either Party considers that it is entitled to another right or relief of any kind whatsoever relating to the
Works e.g. specific performance – cannot include a right covered under 20.1 (a) or 20.1 (b)
• If either Party considers it is entitled to Claim under 20.1 (a) & (b) then the procedure set out in 20.2
applies
• If either Party considers it is entitled to Claim under 20.1 (c) it must give Notice and refer the Claim
to the Engineer under 3.7 - see Engineer’s Role
FIDIC: Making a Claim
• FIDIC: Clause 20.2 Claims for Payment (money) and/or EOT (time)
• 20.2.1: Notice of Claim (NOC)
• Claimant must provide the Engineer with a NOC describing the event/circumstances
• No later than 28 days after the event occurred - if Claimant fails to give Notice of Claim in 28 days
then the other party is “…discharged from any liability …”
• If Claimant’s FDC fails to include the legal basis on which it relies the NOC shall be deemed to have
lapsed.
• Engineer required to inform the Claimant within 14 Days that time has lapsed. If Engineer does not
provide a Notice then the FDC is deemed valid. Other party has right to disagree and it becomes part
of the Claim for Engineer’s Determination
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FIDIC: Making a Claim
• FIDIC: Clause 20.2 Claims for Payment and/or EOT
• 20.2.5: Agreement or Determination of the Claim
• Engineer shall agree or determine the Claim and provide (1) any additional payments/reduction to
Contract Price and/or (2) EOT or extension to DNP for the Employer
• Claimant shall submit further “interim claims” on monthly intervals – end of month is the best
approach
• Claimant shall submit a Final Fully Detailed Claim “…within 28 days after the end of the effects
resulting from the event of circumstances giving rise to the Claim…” – determined under 20.2.5
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FIDIC: Engineer’s Role
• FIDIC: Clause 3.7 Agreement or Determination – the “…Engineer shall act neutrally…”
• 3.7.1: Engineer’s Consultation to Reach Agreement
• Engineer consults with the Parties “promptly” to attempt to reach “agreement” of a Matter or Claim under the
Contract – Parties may inform Engineer that no “agreement” will be achieved & dispense with the process
• If Parties content and “agreement” is achieved within 42 days - Engineer provides Notice of the “agreement” – no
need for Engineer’s Determination
• 3.7.2: Engineer’s Determination
• Engineer shall make a fair determination of the Matter or Claim and give “Notice of Engineer’s Determination”
within 42 days – “binding” on the Parties until corrected under 21 (Disputes & Arbitration)
• Engineer fails to give a Notice of Determination then the Matter deemed a Dispute and referred to the Dispute
Avoidance/Adjudication Board without the need for a Notice of Dissatisfaction. If the Claim is rejected - Claimant
can provide Notice of Dissatisfaction
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FIDIC: Dispute Avoidance / Adjudication Board (DAAB)
• FIDIC: Clause 21 Disputes & Arbitration
• 21.1: Constitution of DAAB
• DAAB jointly appointed 28 days following Contractor’s receipt of Letter of Acceptance – 1 or 3 members.
Decide all Disputes in accordance with 21.4 (Obtaining DAAB’s Decision)
• 21.3: Avoidance of Disputes
• Parties may agree and jointly request that the DAAB provides assistance/informally to resolve
Matter/Dispute that has arisen during performance of the Contract – not binding
• 21.4: Obtaining DAAB’s Decision
• Party refers Dispute to DAAB no later than 42 days after NOD relating to the Engineer’s Determination. Any
later - NOD deemed invalid and ED deemed to be accepted i.e. “…final and binding…”
• DAAB shall complete and provide its decision within 84 days of receiving Reference – “…binding on both
Parties who shall promptly comply with it…” any payment of a sum of money becomes “immediately due
and payable”
• Either Party may give the other Party – within 28 days after receiving the DAAB’s decision a “Notice of
Dissatisfaction with the DAAB’s Decision”. If no NOD in 28 days the DAAB’s decision become “…final and
binding…”
• Neither Party may commence Arbitration unless NOD provided under 21.4
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FIDIC: DAAB / Amicable Settlement
• 21.7: Failure to Comply with DAAB’s Decision
• If a Party fails to comply with the DAAB’s Decision than the other Party may refer the “failure” direct to
Arbitration
• No need to Obtain DAAB’s Decision nor enter Amicable Settlement – bypass the same
• Tribunal may provide an award to enforce the DABB’s Decision only in local courts
• Negotiation in essence
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FIDIC: Arbitration
• 21.6: Arbitration
• Final forum for Dispute Resolution states:
“…any Dispute in respect of which the DAAB’S decision…has not become final and binding shall be
finally settled by international arbitration…”
• Arbitrator’s have full power to “…open up, review and revise any certification, [engineer’s] determination
(other than final and binding determinations)…decision of the DAAB…(other than final and binding
decision)…”
• Neither Party limited to the evidence/arguments within previous argument advanced to the DAAB
• Final and binding – FIDIC uses term “finally settled” and ICC Rules 35.6 - “Every award shall be binding on
the parties”
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AIAC: Claims
• AIAC: Initial Claims raised under Specific Clauses
1. Variation: Cl. 11
2. EOT: Cl. 23
3. Loss & Expense: Cl. 24
• All provide an opportunity for Parties/Contract Administrator to resolve issues before:
4. Mediation:
• AIAC: Cl. 35
5. Arbitration
• AIAC: Cl. 34
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AIAC: Variations
• AIAC: Clause 11 Variations
• Defines Variation as any “…change in the design, quality or quantity of the Works…”
• Contract Administrator (CA) may issue instructions requiring a Variation at any time prior to the issuance of
the Certificate of Practical Completion
• CA’s functions include “…exercising his power and administering this Contract impartially…” 2.1(b)(ii)
• Contractor shall execute and be bound by each Variation unless it provides prompt notice that it cannot
readily obtain the “…goods, material, plant or equipment…” to complete the Variation
• Contractor required to complete the works within the CA’s Instructions even if they do not state that the
work is a Variation i.e. complete and dispute whether the Instructions constitute a Variation later
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AIAC: Variations
• 11.6: Valuation of Variations (cont.)
• If the Contractor fails to provide all Documents and Particulars relating to the Variation within 30 days it
may submit the same at the Final Account stage
• If the Parties agree with the Valuation then the “…valuation…becomes conclusive…”
• If either Party disputes the CA’s valuation of the Variation they may refer the Dispute to arbitration
• Contractor must provide all Documents and Particulars within 28 days of completing the Variation
• If the Contractor fails to provide a “written notice” or “relevant particulars” for EOT Claim within the 28 Days
then the CA is not obliged to assess and grant the EOT “…until after the Practical Completion of the
Works…”
AIAC: Extension of Time
• AIAC: Clause 24 Loss & Expense Caused by Matters Affecting the Regular Progress of the Works
• 24.1: Contactor may make a Claim for “…direct loss and expense…” (L&E) caused by an Employer’s
Event if it “…could not be reimbursed by a payment under any other provision in the Contract…”
• “written notice” of his intention to advance L&E Claim no later than 28 days after becoming aware of
event
• Detailed L&E Claim including “…relevant particulars…” and evidence no later than 28 Days after the
event has ended
Loss & Expense
• If the CA is of the opinion [impartial - 2.1(b)(ii)] that the Contractor has fulfilled its obligation for an
L&E Claim then the CA sets out the reasons in his determination and the value is added to the
Contract Sum
Mediation
• AIAC: Clause 35 Mediation
• 35.1: Despite the Parties right to commence Arbitration under 34 the Parties may refer any dispute relating
to the Contract to Mediation
Advantages Disadvantages
Confidential and Parties have control Purely consensual – not required to take part as a
matter of law
Cheap and quick process – may complete in a day Parties require realistic expectations to succeed
• Arbitration shall be commenced after Practical Completion, Termination, Abandonment. Few exceptions –
not permitted to refer dispute to arbitrate:
• Questions of whether the CA has the power to issue instructions – 2.6 includes procedure to resolve
issue and requires Contractor to follow the instruction i.e. keep working
• Dispute or difference under 31 (Outbreak of Hostilities) or 32 (War Damage) – clauses include specific
remedies
• Questions regarding Certificates/Payment etc resolved under Construction Industry Payment and
Adjudication Act 2012 (CIPAA) i.e. Statutory Right to Adjudication
• Arbitration award is final and binding on the Parties – supported by the Malaysian Arbitration Act 2005
Thank You: Any Questions?
Contact
John Coghlan
Principal
E: johncoghlan@cels.global