Читать книгу The 2017 FIDIC Contracts - William Godwin - Страница 30

One of the most important general provisions in the 2017 editions is that dealing with notices and other communications in clause 1.3. ‘Notice’ is defined in clause 1.1 of the 2017 contracts to mean a written communication identified as a notice and issued in accordance with clause 1.3. Clause 1.3 of the 1999 editions also contains rules about formal communications under the Contract such as notices, but the 2017 rules are more detailed and require particular attention in view of the greater use of notices and associated time limits in the 2017 editions.

Clause 1.3 in the 2017 contracts requires that any notice to be given under the Contract, or the issuing, providing, sending or the like of other communications (including, for example, determinations or instructions) should be in writing, and either:

1 (a) a paper‐original signed by an authorised representative, such as the Contractor's Representative or the Engineer; or

2 (b) an electronic original generated from a system stated in the Contract Data,¹ or acceptable to the Engineer (or in the Silver Book, the Employer); the electronic original must moreover be transmitted by the electronic address uniquely assigned to the authorised representative.

Further, if it is a notice, the communication must be identified as a notice. If it is another form of communication, it has to be identified as such and include reference to the provision of the Contract under which it is issued, where appropriate.

Other requirements for communications including notices are that they must be delivered, sent or transmitted to the address for the recipient's communications stated in the Contract Data (or to a notified changed address) and that they should not be unreasonably withheld or delayed.

An important additional provision concerns variation instructions. Clause 3.5 of the 2017 Red and Yellow Books and 3.4 of the 2017 Silver Book require that before clause 13.3.1 – dealing with variations by instruction – shall apply, the communication containing the instruction has to state that it constitutes a variation; otherwise, a procedure of notices and counter‐notices, set out in clause 3.5/3.7, is triggered, with the intention of flushing out the issue whether an instruction constitutes a variation at an early stage rather than deferring that question to later. The new variation procedure under the 2017 editions is examined in Chapter 11.