Читать книгу The 2017 FIDIC Contracts - William Godwin - Страница 64

Clause 3.7.5 deals with the procedure where a party is dissatisfied with the determination of the Engineer. In that event, the dissatisfied party may give a notice of dissatisfaction (NOD) to the other party, with a copy to the Engineer. This NOD must state that it is a notice of dissatisfaction with the Engineer's determination in so many words, and set out the reason(s) for the dissatisfaction. The NOD must be given within 28 days after receiving the Engineer's notice of the determination or, if applicable, his notice of the corrected determination under clause 3.7.4 (or, in the case of a deemed determination rejecting a claim, within 28 days after the time limit for determination under clause 3.7.3 has expired); thereafter, either party may proceed to obtain a DAAB's decision under clause 21.4.

If no NOD is given by either party within the above period of 28 days the determination is deemed to have been accepted by both parties and is expressed to become final and binding on them. This is a contractual time bar, therefore, which can render an Engineer's determination final and binding. Unlike a failure to comply, in the case of a money or time claim, with the initial 28‐day notice requirement under clause 20.2 (where in certain circumstances the defaulting party may, in effect, seek an extension of time¹⁴ ), the party who fails to give a NOD to a determination in time has no recourse.¹⁵

Note that if the dissatisfied party is dissatisfied with only part(s) of the Engineer's determination the NOD must clearly identify it/them and the relevant part or parts are to be treated as severable from the remainder of the determination, this remainder then becoming final and binding on both parties as if the NOD had not been given.

The 2017 contracts enable an agreement achieved pursuant to clause 3.7 and an Engineer's determination which has become final and binding to be enforced by providing, in clause 3.7, that if a party fails to comply with such an agreement or with a final and binding determination then the other party may, without prejudice to any other rights he may have, refer the failure itself directly to arbitration under clause 21.6, thus making the agreement or determination enforceable to the same extent as a final and binding decision of the DAAB.¹⁶