Arbitration in resolving engineering disputes, Part (1)
Written by legal advisor Zeina Ahmed
The General Conditions for Contracts of the International Federation of Consulting Engineers are famous for the methods they chose to resolve disputes arising from a contract concluded in accordance with FIDIC mechanisms. Clause (67), the Clause for resolving disputes, is the most famous in that field. FIDIC has adopted arbitration as a judicial method. Special or alternative, to consider disputes arising from the implementation of contracting contracts, and with the developments witnessed in the general conditions of FIDIC contracts, the dispute resolution committee, Article (20/2) of the general conditions of construction contracts FIDIC 1999, became an alternative to the role that the consulting engineer used to play as a decision maker and quasi- Arbitrator, the engineer here is not Arbitrator. The contract dispute resolution clause is of great importance to contractors, as they can choose the method of resolving disputes, either arbitration or ordinary judiciary. When the parties choose the method of arbitration to consider any disputes that may arise resulting from the implementation of the contract, they do so with the motive of quickly resolving and solving disputes—one of the procedures applicable before the judiciary. The importance of arbitration, as an alternative means of resolving disputes, is evident in the exhibition of international contracts of various types, and thus, the general conditions of contracts of the International Federation of Consulting Engineers (FIDIC contracts) have become famous as the only typical form of conditions prepared for international use in civil engineering projects, as they have provided an integrated approach to the means of settling disputes. When studying the Clause on dispute settlement, according to the general conditions of FIDIC contracts, we cannot ignore the dual role that the consulting engineer played - before the last amendment - once as a representative of the employer and again as an Arbitrator in disputes arising from The contract concluded between the employer and the contractor.
The first requirement
The role of the engineer in alternative dispute resolution methods in FIDIC contracts
In addition to the engineer's role as a consultant and representative of the employer, the engineer has a role in deciding on the contractor's claims by the general conditions of FIDIC contracts, the Red Book, after replacing the engineer's role, as a quasi-arbitrator, with the Dispute Resolution Board (DAB).
First branch
Claims
Claims constitute the first discretionary work of the consulting engineer to decide on claims usually made by the contractor due to circumstances arising in the contract that lead to an increase in costs in the works in an attempt by him to compensate for these costs. The general conditions of FIDIC contracts have regulated the origins and dates of these claims. Article (20/1) of the Red Book specifies the contractor's claims and the cases in which they are submitted. The contractor's claim shall be either for an extension of the completion period, additional payments, or both. The contractor can, if he considers himself entitled to an extension of the completion period or any additional payment, by According to the provisions of the Red Book, the engineer must send a notice stating the reasons that prompted him to demand an extension of the completion period or any additional payment, explaining the circumstance that affected the progress of implementation of the contract, and this notice must be given to him as soon as possible, provided that it does not exceed (28) days from the date The contractor's knowledge or necessity of his being aware of the occurrence of the accident or circumstance, at the risk of rejecting his claim if it is delayed beyond this period. His delay in submitting the claim is considered an implicit consent to bear those burdens, and the contractor, to support his claims that may arise from the implementation of the contract, must keep records in which the details are recorded and supporting the claim. When a claim occurs, the engineer monitors the records and can ask the contractor to continue working until he reviews his claim through the records. After that, the contractor must, within (42) days from the date of the occurrence of the circumstance causing the claim, from the date he became aware of it, or from the date on which the claim occurred. It is assumed that he has been informed of the occurrence of the accident. He must send the engineer a detailed and comprehensive report on the facts with their support during this period. Within (42) days from receipt of the claim, the engineer is obligated to evaluate the claim and respond to it, positively or negatively, and justify his decision with a detailed statement. Suppose the contractor has claimed to submit or be decided and paid. In that case, he must include them in the final statement submitted by the contractor within eighty-four days from the date of the engineer's issuance of the final take-over certificate for the works. As for the claims that occur during the defects warranty period, the contractor must guarantee it in the statement he submits within fifty-six days from the expiry of the guarantee period, and this claim is considered the last opportunity before the employer's responsibility expires.
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