An Overview of FIDIC 2022 Reprint

In November 2022, Fédération Internationale des Ingénieurs Conseils (the International Federation of Consulting Engineers - “FIDIC") made a number of amendments in the Second Edition of Red, Yellow and Silver Books with effect as of January 2023 ("2022 Amendments”).

Among these amendments, some are for abbreviation purposes or for providing a better understanding, while some have major importance in understanding the General Conditions and hence are worth to scrutinize in detail. The information provided herein is prepared based upon the amendments made on the Silver Book, so the terminology used below is in line with the Silver Book, which is only for convenience purposes given the nuances between the three books.

This preference over the terminology has no substantial effect over the narrative of this article given all amendments are conceptually identical in all three Books, excluding the amendment mentioned in relation to the Guide in the last page of this article, which is specific to Yellow Book and Red Book.

What Is a “Claim” and a “Matter”?

 Definition of “Claim” as amended with 2022 Amendments is as follows:

“Claim” means a request or assertion by one Party to the other Party (excluding a matter to be agreed or determined under sub-paragraph (a) of Sub-Clause 3.5 [Agreement or Determination]) for an entitlement or relief under any Clause of these Conditions or otherwise in connection with, or arising out of, the Contract or the execution of the Works.”

The wording within the parentheses is newly incorporated into the definition to exclude matters subjected to agreement or determination under Sub-Clause 3.5 [Agreement or Determination]. To understand and elaborate on this exclusion of a “matter” from scope of a Claim, one needs to take a look at the recently amended Sub-Clause 3.5 as well.

Accordingly, below paragraph is added with 2022 Amendments to Sub-Clause 3.5 [Agreement or Determination] as the second paragraph:

“Whenever these Conditions provide that the Employer’s Representative shall proceed under this Sub-Clause 3.5 to agree or determine either:

(a) Any matter, as provided in Sub- Clauses 11.2, 13.3.1, 13.5, 14.4, 14.5, 14.6.3, 15.3, 15.6, and 18.5, identifying in the same Sub-Clause the date of commencement of the corresponding time limit for agreement under Sub-Clause 3.5.3 [Time limits]; or

(b) any Claim,

The following procedure shall apply:

[…]”

Previously, this provision was simply referring to “any matter or Claim”, which rendered the difference between the scopes of “Claim” and “matter” vague. Currently, the amended paragraph lists matters within the scope of this clause by reference to specific sub-clauses. This list is helpful in clarifying the scope of what is deemed as a matter, especially in the presence of the amended wording of the definition of a Claim. The referred sub-clauses are relevant to agreement or determination of (i) causes of a remedial work (SC 11.2), (ii) EOT (extension of time) and/or Contract Price adjustments due to a Variation (SC 13.3.1), (iii) incorrect or not agreed daywork statements (SC 13.5), (iv) revised schedule of payments (SC 14.4), etc. When the referred provisions are reviewed, it is clear that the list does not include any claim between the Parties at the time the matter is submitted to the Employer’s Representative and the Employer’s Representative encouraged the Parties to reach an agreement or made a determination on the matter. The inference to derive from this analysis is that the concept of "matter" is envisaged to identify the issues which do not officially amount to a "Claim" but bear the potential to turn into a "Claim".

Prior to 2022 Amendments, the word “matter” was in need of an explanation and now the concept is much clearer with specific references to related sub-clauses in a limited nature. Consequently, by reading the definition of “Claim” and the added paragraph to Sub-Clause 3.5, it can be said that in means of the General Conditions, a Claim is a request or an assertion for an entitlement or relief under the Contract between the Parties, but not relevant to any other third party, and does not include “matters” submitted to the Employer’s Representative as listed under second paragraph of Sub-Clause 3.5. Emphasis of the concept of “matter” and carving it out of the scope of a “Claim”, is one of the changes bearing substantial importance brought with 2022 Amendments.

What Is a “Dispute”?

Definition of “Dispute” is also amended with 2022 Amendments and the latest version is as follows:

“Dispute” means any situation where:

(a) one Party has made a Claim, or there has been a matter to be agreed or determined under sub-paragraph (a) of Sub-Clause 3.5 [Agreement or Determination];

(b) the Employer’s Representative’s determination under Sub-Clause 3.5.2 [Employer’s Representative’s Determination] was a rejection (in whole or in part) of:

(i) the Claim (or there was a deemed rejection under sub-paragraph (i) of Sub-Clause 3.5.3 [Time limits]); or

(ii) a Party’s assertion(s) in respect of the matter

as the case may be; and

(c) either Party has given a NOD under Sub- Clause 3.5.5 [Dissatisfaction with Employer’s Representative’s determination].

Exclusion of “claim” from the definition of Dispute

Pursuant to the definition, a Dispute may arise from a “Claim” or a “matter” (without reference to specific incidents for “matter”) and the Employer’s Representative’s rejection of such Claim or a Party’s assertion. It is worth to underline that in the earlier drafting of this definition, the claim was just written as “claim” without specifically referring to the defined Claim, but now it is written with a capital letter to refer to the defined terminology for “Claim”. Therefore, not any claim, but only the issues that qualify as a Claim in line with the defined terminology may qualify as a Dispute.

The exclusion of “claim” from the definition is further explained under the Second Edition Guide comments in a manner to emphasize that a “Dispute” as defined and used in the 2017 Books is confined to disputes only in between the Parties:

“It should be noted that this definition of ‘Dispute’ refers to a Claim but not to a claim. As explained in the guidance above for the definition of “Claim”, claim under the 2017 Books has a different meaning to that of Claim. Therefore, ‘Dispute’ as defined and used in the 2017 Books is confined to disputes between the Parties. It excludes any dispute arising from a claim made by a Party against a third party under the Performance Security, under a guarantee, under an insurance policy, or in connection with intellectual/industrial property rights.”

The commentary makes it clear that the purpose to exclude other claims from the definition was so that only the Claims between the Parties would be subjected to Dispute resolution procedures under the Contract.

Conditions for a Claim or a matter to qualify as a “Dispute”

Previously, emergence of a Dispute was conditional to (i) making of a Claim by one Party to the other Party or determination of a matter by the Employer’s Representative and (ii) rejection of the claim by the other Party or by the Employer’s Representative. Prior to 2022 Amendments, the definition of Dispute also included a statement that “a failure by the other Party to oppose or respond to the claim, in whole or in part, may constitute a rejection if, in the circumstances, the DAAB or the arbitrator(s), as the case may be, deem it reasonable for it to do so.”

Considering this wording is now removed from the definition of “Dispute”, it can be said that by deviating from the former structure, FIDIC now deems it a condition that a Claim or a matter should first be submitted to and rejected by the Employer’s Representative, for a contractual Dispute to exist. Hence, making of a Claim and rejection of the same by the other Party is not sufficient to conclude on the existence of a Dispute, and Employer’s Representative’s rejection is a must for the Parties to initiate Dispute settlement procedures.

These conditions on existence of a “Dispute” seem to be in line with the detailed claim procedure laid out under FIDIC 2017 Revision, and accordingly, a matter or a Claim may be qualified as a Dispute, only after being rejected by the Employer’s Representative.

Exceptions to conditions required for a matter or a Claim to qualify as a “Dispute”

There are further amendments introduced by FIDIC 2022 Amendments with regard to emerging of a Dispute. By incorporating a whole new paragraph into Sub-Clause 21.4 [Obtaining DAAB’s Decision], certain exceptions are listed to above mentioned conditions in order to enable the Parties to directly apply Dispute settlement provisions, without having the need for the Employer’s Representative’s rejection of the matter or the Claim. The newly introduced wording under Sub-Clause 21.4 [Obtaining DAAB’s Decision], is as follows:

“In addition to the situation described in the definition of Dispute under Sub- Clause 1.1.29 above, a Dispute shall be deemed to have arisen if:

(a) there is a failure as referred to under sub-paragraph (b), or a nonpayment as referred to under subparagraph (c), of Sub-Clause 16.2.1 [Notice];

(b) the Contractor is entitled to receive financing charges under Sub-Clause 14.8 [Delayed Payment] but does not receive payment thereof from the Employer within 28 days after his request for such payment; or

(c) a Party has given:

(i) a Notice of intention to terminate the Contract under Sub-Clause 15.2.1 [Notice] or Sub-Clause 16.2.1 [Notice] (as the case may be); or

(ii) a Notice of termination under Sub- Clause 15.2.2 [Termination], Sub- Clause 16.2.2 [Termination], Sub- Clause 18.5 [Optional Termination] or Sub-Clause 18.6 [Release from Performance under the Law] (as the case may be);

and the other Party has disagreed with the first Party’s entitlement to give such Notice;

which Dispute may be referred by either Party under this Sub-Clause 21.4 without the need for a NOD (and Sub-Clause 3.5 [Agreement or Determination] and subparagraph (a) of Sub-Clause 21.4.1 [Reference of a Dispute to the DAAB] shall not apply).”

From review of the added text, if the issue is related to termination or non-payment, the claiming Party may directly apply to the Dispute Avoidance and Adjudication Board (“DAAB”) under Sub-Clause 21.4 without first submitting the matter or the Claim to the Employer’s Representative for agreement or determination. In fact, this is logical, as in the case of a nonpayment, there is no issue to be determined by the Employer’s Representative or there is nothing to be agreed about by the Parties. Simply, a payment entitled by the Contractor is not paid by the Employer or the contract is terminated for the counterparty’s default, but the counterparty denies the terminating Party’s entitlement to terminate. Therefore, it is convenient for the Parties in terms of time efficiency in such circumstances that the matter or Claim can directly be submitted to the DAAB, and to arbitration thereafter.

Amendments Regarding the Dispute Avoidance and Adjudication Board

Sub-Clause 21.2 [Failure to Appoint DAAB Member(s)] of General Conditions of Contract is amended in a manner to reflect that unless otherwise is set forth under the Contract, FIDIC shall be the appointing authority, if the Parties fail to appoint the member(s) of the DAAB. Accordingly, in such a situation, any of the Parties may apply to Presidency of FIDIC or a person appointed by the President of FIDIC by requesting appointment of DAAB members. While making the appointment, FIDIC may consider but is not limited to making the selection among the persons named in the Contract Data. The fees of so appointed members will also be stated in the terms of appointment by FIDIC. Pursuant to the 2022 Amendments, such appointment shall be final and conclusive, and the DAAB Agreement shall be deemed to have been signed by the Parties and the DAAB members.

There are many amendments made also in the General Conditions of the DAAB Agreement, which are mostly for clarification purposes. However, it is useful to highlight the amendment made in Sub-Clause 4.1 (c), which changes one of the conditions for being appointed as a DAAB member. In the former drafting, it was set forth that the DAAB Member should in the ten years before signing the DAAB Agreement, not have been employed as a consultant or otherwise by any of the Parties and/or their personnel, except in such circumstances as were disclosed in writing to both Parties before signing of the DAAB Agreement. Currently, the ten years independency term is decreased to five years. This is interesting given the debate over measures of impartiality and independence of adjudicators and arbitrators.

Amendments Made in the Guide

With 2022 Amendments, FIDIC also released amendments to the Guidance for the preparation of Particular Conditions. Most of amendments are for clarification purposes and avoidance of some errors. Nonetheless, one amendment that is worth mentioning herein relates to Sub-Clause 18.1 [Exceptional Events] of Yellow Book and Red Book, which actually represents a significant change in FIDIC’s approach.

With regard to an amendment made in Guide for Yellow Book and Red Book Sub-Clause 18.1 [Exceptional Events] is amended in its entirety as follows:

“In respect of sub-paragraph (f) of this Sub-Clause, it should be noted that any event of “exceptionally adverse climatic conditions” (as referred to in sub-paragraph (c) of Sub-Clause 8.5 [Extension of Time for Completion] will not constitute an Exceptional Event unless it is of such severity or magnitude that the conditions stated in subparagraphs (ii) and (iii) of this Sub-Clause 18.1 [Exceptional Events] are fulfilled. Therefore, unless both such conditions are fulfilled, there is no right for either Party to suspend the Works in the case of an event of “exceptionally adverse climatic conditions”, although if this type of event has the effect of delaying completion and taking-over of the Works or Section the Contractor shall be entitled to EOT under sub-paragraph (c) of Sub- Clause 8.5 [Extension of Time].”

Through the amended paragraph, the Guide emphasizes that although in principle, exceptionally adverse climatic conditions do not constitute an Exceptional Event, if such conditions were so severe and in the magnitude that could not reasonably have been provided against before entering into the Contract and could not reasonably have been avoided or overcome by the affected Party, these conditions may represent an Exceptional Event. Otherwise, as set forth under Sub- Clause 8.5, such climate conditions will only represent a reasoning for EOT (extension of time).

This is a major change of approach, as previously the Guide was mentioning that any event of exceptionally adverse climatic conditions is excluded from the definition of what constitutes an Exceptional Event, and there was no right for either Party to suspend the Works for such conditions. In other words, it was not possible to claim that any such events were in fact preventing the affected Party’s performance in a manner to entitle the affected Party to consequences of Exceptional Events. The Guide continued by stating that such conditions may still have a delaying effect on the performance of the Works (although not representing an Exceptional Event and entitling the affected Party to suspend the Works), so such conditions may entitle the affected Party to EOT (extension of time) only.

Currently, the amended Guide provides a more logical approach to exceptionally adverse climatic conditions, since the criteria is determined as how severe and how preventive such conditions are. This is due to the fact that if it is impossible to perform under such conditions, then it would not be correct or fair to insist that there is no Exceptional Event and no entitlement to consequences of Exceptional Events regardless of the severity of the climate conditions.

References:

• FIDIC Conditions of Contract for EPC /Turnkey Projects (2017, Reprinted 2022 with Amendments).
• FIDIC Guide (2017, Reprinted 2022 with Amendments)