Читать книгу The 2017 FIDIC Contracts - William Godwin - Страница 66

1 1 Unless the Contract otherwise provides, in carrying out his duties or exercising authority in connection with the Contract the Engineer is to be deemed to act for the Employer: clause 3.2, first paragraph.

2 2 Unlike the 2017 Red and Yellow Books, the number of the clause dealing with determinations in the 2017 Silver Book, clause 3.5, remains the same as in the 1999 edition (rather than changing to clause 3.7).

3 3 A note on terminology: in the 2017 Silver Book ‘the Employer’ is normally used when a particular function or role is carried out in fact by the Employer's Representative, except in relation to those matters where the Employer's Representative is not to be taken to act on the Employer's behalf, such as in relation to an agreement or determination under clause 3.5, and this usage is followed below.

4 4 See Section 12.1.4 below.

5 5 See Section 15.2.

6 6 The same final say applies under clause 13.1 where the instruction is stated to be a variation and the Contractor objects, on one of the grounds allowed under that clause: see further Section 11.1.4 below.

7 7 See Section 3.3.3 below.

8 8 These are money or time‐related claims. Clause 20.1(a) covers claims by the Employer for any additional payment from the Contractor, a reduction in the Contract Price and/or for an extension to the Defects Notification Period; a claim under clause 20.1(b) is a claim by the Contractor to any additional payment from the Employer and/or to an extension of time.

9 9 See Section 15.2.5.

10 10 See Section 15.2.13.

11 11 See Section 16.2.

12 12 See Sections 15.2.10 and 16.2.1.

13 13 Although no time within which he should do so is indicated, clause 1.3 in the 2017 editions provides that all notices and other types of communication (referred to in the clause) are not to be unreasonably withheld or delayed.

14 14 See Section 15.2.9.

15 15 It might be possible to challenge the determination itself on the basis, for example, that the process was flawed in that the Engineer, in the Red and Yellow Books, was not acting neutrally, and then argue that this vitiated the determination so that the failure to give a NOD in time was not fatal to the claim since only a valid determination could be the subject of a NOD. An argument of that kind might succeed in some jurisdictions but there is no procedural mechanism under the contracts for disturbing a determination if no NOD is given in time.

16 16 See Section 16.2.6.