Dispute Avoidance: FIDIC 2017

Talk to any dispute board member and they will tell you that their primary function should be to assist parties to avoid issues turning into disputes. Although settlement of issues by agreement is always more palatable than having decisions imposed by a third party, contracting parties have not, in my experience, generally embraced the concept of using the skills, experience and expertise of dispute board members to resolves issues by dialogue, discussion and informed opinion. But is all that soon to change

The 2017 editions of the FIDIC Red, Yellow and Silver Book forms of contract incorporate for the first-time provisions that expressly address the avoidance of disputes.

Subclause 21.3 of the new forms provides a process under which the Parties (but not the Engineer), and provided they so agree, may jointly request the Dispute Avoidance and Adjudication Board (“DAAB”) to “provide assistance and/or informally discuss and attempt to resolve any issue or disagreement” that may have arisen between the parties, prior to that issue turning into a formal dispute. The provision also permits the DAAB to invite the Parties to make such a joint request, should it become aware of any such issue or disagreement existing between the parties. The only constraints to the process are that the Parties must agree to a joint request being made, and that a request cannot be made during the period when the Engineer is acting under sub-clause 3.7 of the conditions to agree or determine the relevant issue.

PROFILE

Simon Longley is a Chartered Quantity Surveyor and non-practising Barrister with more than 25 years’ experience in contract, claims and disputes management on major civil engineering, infrastructure, transportation and power projects, both in the United Kingdom and internationally.

Simon has held senior management positions with both contractors and consultants and has worked on projects in Bahrain, Bulgaria/Romania, Finland, Monaco, Nigeria, Oman, Qatar, Saudi Arabia, South Africa, Sri Lanka, Turkey, United Arab Emirates, United Kingdom, and the United States of America.

Simon is regularly appointed as client advisor and representative for alternative dispute resolution (ADR) proceedings, particularly in relation to dispute adjudication board and contract adjudication under the FIDIC and NEC forms of contract, dealing with all aspects of procedure and written and oral advocacy of case.


This publication presents the views, thoughts or opinions of the author and not necessarily those of HKA. Whilst we take every care to ensure the accuracy of this information at the time of publication, the content is not intended to deal with all aspects of the subject referred to, should not be relied upon and does not constitute advice of any kind. This publication is protected by copyright © 2019 Thomson Reuters and Contributors.

It is clear that dispute avoidance is not a mandatory procedural requirement or a condition precedent to dispute adjudication under the FIDIC 2017 books.”
Simon Longley, Partner, HKA
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