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Studies in Contractual Claims - 8

Commercial claimsmanship - with special reference to the FI DIC form of contract



by Philip Maton, FBIM, MACostE, ACIArb

British Library Cataloguing in Publication Data

Maton, P.

Commercial claimsmanship with special reference to the FIDIC contract. - (Studies in contractual claims 8)

1. International Federation of Consulting Engineers. Conditions of contract (international) for works of

civil engineering construction 2. Civil

engineering - Contracts and specification

L Title ILSeries

624 TA181.NI

ISBN 0-906600-64-2

Published by the Chartered Institute of Building May 1983

Studies in Contractual Claims - 8

Commercial claimsmanship - with special reference to the FIDIC form of contract

by Philip Maton, FBIM, MACostE, ACIArb

The Chartered Institute of Building

Commercial claimsmanship - with special reference to the FIDIC form of contract

by Philip Maton, FBIM, MACostE, ACIArb

INTRODUCTION

'Claims' is a word too often given a pejorative connotation. It is argued that it is an unnecesary and inappropriate export from Europe of a subjective prejudice. In Third World countries there are different circumstances which full justify the contractor deliberately incorporating a claims' philosophy as a fundamental element of his overall commercial policy. This is notably so when contractual relationships are entered into in countries having little or no commercial law, (in the Western sense) and when the contract document itself is in a format which depends directly upon a substantial history of commercial and contractual development and its concomitant library of precedent, such as is the case with the FIDIC form of contract", whose antecedent is the English civil engineering contract. Indeed, FIDIC is so full of 'anglo-saxon' suppositions, concepts and philosophies that, all too often, British personnel operating overseas are led into the trap of implementing their UK practices as if they were just as valid and enforceable in foreign countries.

COMMERCIAL CLAIMS

But what is a 'claim'? One useful definition runs thus

'A claim is a submission by the contractor concerning any matter for which the contract expresses explicit entitlement for his benefit, whether as to time or as to money, or for which he reasonably considers the contract to afford him implicity or tacitly such entitlement'.

From whence it is argued that contractors are fully entitled to present for consideration an enormously wide range of matters; provided that they do not lose sight of the fact that they may well be mistaken with some claims which will be rapidly rejected as unacceptable.

The reason why the expression 'commercial claims' is used, and not 'contractual claims' is that just as a tender or bid is a commercial step en route to the establishment of a commercial and contractual relationship, then so is a claim a further commercial step within the currency of that relationship. A claim, if of sufficient intrinsic importance, may even be a commercial step towards the re-establishment, albeit along dif-

1. FIDIC: the Conditions of Contract (International) for Works of Civil Engineering Construction. Third Edition. March 1977. published by the Federation Internationale Des Ingenieurs Conseils.

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ferent lines, of that same relationship.

A claim presents and records an event or an occurrence which, it alleges brought about circumstances which, in turn, acted to the detriment of the contractor's position. It then seeks to prove that allegation as fact by dint of argument and goes on to demonstrate, by further argument, that the event constituted a matter which the contract permits as grounds for the recovery of lost time or money.

Consequently, the essence of a claim is not its correctness or its contractual propriety, but rather its persuasiveness.

If the parties are entitled to negotiate, haggle, deal and generally manoeuvre themselves and each other around during the post-tender, pre-contract stage why should they not continue to do so, if they wish, post-contract?

In Europe it is commonplace for the signing of the contract to be treated as if it were 'a call to arms'; in most Third World countries they have the rather more sensible attitude in that the contract is no more than a momentary statement of the parties' respective positions at one stage in a continuing, negotiating process. That process begins with the initial tender and does not end until the moment of the actual payment of the final account.

Is not this attitude dangerous? Does it not reduce the contract to the status of an historical document whose relevance is now open to doubt? No, this is not so. Explicitly, contracts require the parties to operate within the local context, in the sense of the local law.

Implicitly, they also require the parties to operate with due regard to the local context in the broader sense - 'the local mercantile usage'. Perhaps the approach diminishes the importance of the consultant's role post-contract? No: the reverse is more likely to be the case for he continues and must continue to act (insofar as his own consultancy contract and the construction contract each permits) in the role of the independent, disinterested expert and

2. FIOrc 67: a reference to Clause 67 of FIOrc.

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has, through FIDIC 672, a quasi-arbitral role of great importance to play in the event of any disputes between the parties.

The introduction of Western practices and mercantile usage into Third W orId projects by many consultants when reviewing claims and adjudicating upon disputes is understandable, given the antecedents of FIDIC, but nonetheless this is mistaken. Such an action presupposes that the contract freezes the relations between the parties and assumes the existence of a wholly comprehensive, commercial law which is almost invariably not the case. Any flexibility as between the parties is proscribed. Such an action need present no problem in the West with its set patterns in commercial life and with its almost total, contractual infrastructure. In the Third Warld, it does produce a situation, postcontract, which is neither related nor relevant to local circumstances.

The employer has, after all, delegated to the consultant the duties of watching and supervising the works and of adjudicating upon disputes. But this does not mean that the employer has abdicated his own position in so doing. The wise contractor will, therefore, never lose sight of the continuing existence of the employer to whom he will always send copies of any 'significant' correspondence, whatever the contract may say to the contrary!

Now, apparently, the point is reached where we are advocating that the contractor is at liberty to claim, as often as he likes, for anything and everything under the sun, regardless of the terms of the contract which are supposed to bind the parties. On the contrary, a contract does not merely express the willingness of the parties in defining those areas on which they agreed, clause by clause, and thereby act to limit their very willingness but rather, by virtue of its simple existence, it demonstrates the fact of their willingness - a distinction . in defintion of some subtlety but one of paramount importance. If the contractor wishes to prove himself still willing, and wants the employer to remain equally willing, then that, of itself, will act as a strainer, and will help to filter out wholly unnecessary or inherently contentious claims. That is, if the persuasive character of individual claims is fundamental to the success of the total claims' operation, then an excess of zeal in the presentation of claims will, self-evidently, be counterproductive.

The tender negotiations were steps en route to the contract and required, on the contractor's part, fine commercial judgement and a thorough acquaintance with the company's philosophy; at least one very senior executive must therefore have actively managed those negotiations. Similarly, claims, as a series of steps en route to the final account, must be handled with finesse and within the context of

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overall company policy. They, too, must be managed at a very senior level. if only to demonstrate to the other party the seriousness with which claims are viewed by the contractor.

INEQUITABLE CONTRACT TERMS AND POLICIES

It is the existence of the contract itself and not its text which demonstrates the willingness of the parties. It is not the text, since that, by attempting to define the parties' willingness in detail, acts thereby to limit, or even to diminish their willingness.

That contracts (even those having FIDIC as a base or an antecedent) should prove to be a draconian and inequitable is, therefore, not so illogical as might appear to be the case at first glance. For is not the quality of the parties' willingness and, thence, their trust, each for the other, mirrored in the text? The less trusting the parties, the less will they be willing; the less they are willing, the more will the text be draconian and inequitable.

As an example, one can single out, with propriety, contractual texts proposed by the Socialist Peoples' Libyan Arab Jamahiriya (Libya). These are based directly upon FIDIC but with massive policy amendments imposed upon it, such that FIDIC's fundamental philosophy and principles are almost wholly reversed. Of course, it must be acknowledged that Libya is implementing extensive and radical structural, political change; that is its sovereign perogative. However, if it wishes to buy specific, technological and technical expertise in an international market, then it is likely to do better if it accepts, at least to a degree, standard international practices and procedures.

Libya is not the only state with highly individual ideas on contract draftsmanship, nor is 'equity' a wholly Western concept. This matter is discussed further below.

Potential employers should, however, note with care that the more inequitable a contract might be said to be, the more tenderers or bidders must 'insure their risks' by increases in their tender or bid price. The greater the apparent inequitability, the more disproportionate will be the 'insurance factor', and the higher will go the tender price.

Alternatively, a tenderer who has not understood that basic inequitability and who tenders too low relative to the degree of inherent risk, will be demonstrating a form of incompetence fundamental to contract and construction management. The prospective employer is then on the horns of a dilemma, though admittedly one of his own making: whether to accept the lowest initial price and to buy a whole lot of problems for the future or to accept a higher initial price which has presumably catered adequately for the contractual risks involved.

Employers or owners are inevitably citizens of the country where the project is to take place and they are frequently government organisations; they are thus in a decidedly superior position vis-a-vis the contractor who is usually not only a foreigner, but also a stranger to the country.

Employers also employ experts in the form of consultants. How often is it not the case that a contractor is faced with a contract which he neither knows (say, FIDIC) nor understands; where the languages are, say, English and Arabic and he is German or Korean? Yet, time and time again, contractors who are, presumably, good, trained managers, fail to take advice on local mercantile usage and the contractual risks.

Some recent contracts, based on FIDIC, included the following, delightful non-standard clause: 'Notwithstanding any previous reference to approval by the engineer, the following shall be subject to approval in writing by the employer:

(a) Extensions to the contract period.

(b) Variation orders causing additional obligations on the part of the employer.

Not one of the contractors involved saw the dangers lurking in that clause, as they should have done.

Taking (b) first: obligations additional to what? The contract lays out the method of evaluating variations or change orders, and how the time effect, if any, is to be assessed. So, theoretically, no additional obligations can be created. Moreover, it is always understood that the engineer has no authority to vary the parties' obligations under the contract, so the employer's prior approval does not arise.

What would be necessary in such a case would be the agreement of both parties, not just the approval of one. In the event, the employer has interpreted the phrase to mean any obligation which he finds to be additional to the absolute minimum which he feels he can get away with!

What if the engineer sees a variation as being essential, no matter for what reason? He first has to obtain the employer's approval. If the employer agrees, but very late relative to the programme or to the actual progress of the work, then case (a) arises. An extension under FIDIC 44 is permissible but, first, the employer's approval must be obtained. What if the employer refuses his approval, or grants it finally, but so late that the contractor has, meanwhile, been paying swingeing penalties?

Further, as to the phrase 'approvals by the engineer'; neither (a) nor in case (b) is there any reference in the related FIDIC clauses (44 and 51 respectively) to 'approval'.

Thus, the clause under review is not only structurally dubious, it is also very badly drafted.

Needless to say, events subsequent to the signature of the contract in question amply demonstrated the inadequacy of the draftsmanship.

It is fundamental to the point under discussion that one defines with sufficient precision what is and what is not equitable. To do that one must first consider the 'concept of equity'.

It has been said, and with some justice, that equity, as an abstract entity, is a true parameter; in one situation or set of circumstances it has a fixed value or meaning, whereas in different circumstances it may well have a different meaning.

Certainly, in real life situations, such an apparent anomaly as different concepts of equity can be seen in operation. Think of an argument about whether something is 'fair' or 'reasonable' which takes place between a Kuwaiti (Moslem) employer, a Thai (Buddhist) contractor and an Italian (Roman Catholic) consultant. This is not to criticise in any way any one of those nationals or their respective religions, or yet their respective individual or religious concepts as to what is equity; rather, it is to recognise that those various concepts will differ widely from one another.

Sad to say, even at a genuinely international level, many contractors not only do not know what the differences are - which is, perhaps, excusable - but do not even recognise that those differences exist - which is not.

TENDERING

It is a truism to say that the quintessence of the successful management of contracting is an effective analysis, in advance, of the resources to be allocated, the timing of that allocation, the probable risks to be encountered and when these risks might reasonably be expected to happen. The link between resource allocation and risk forecasting is so close as to allow one to predicate the view that risk management is one of the resources to be mobilised.

Risks cannot always be quantified in advance to any great degree of accuracy, but their qualities can usually be assessed sufficiently well with a little patience and a lot of thoroughness in research. Thus, even if the 'size' of a risk cannot be fixed, it should, nevertheless, be possible for its 'location', in time, to be estimated with reasonable precision.

Tenderers frequently spend vast sums on an advance analysis of the construction tasks ahead of them (as to methods, machines, materials and men), but only too frequently is it evident that they in-

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vested inadequate tendering resources in an investigation of potential management risks or problems, including the contractual ones.

The experience of consultants worldwide shows clearly that the properly studied and correctly defined pricing of a tender is not tantamount to producing a tender so high that it will prove unacceptable or uncompetitive. Rather, it produces an ambience of competence and commercial awareness, and a tender figure sensibly related to the proposed task. Usually it presages a less litigious approach to claims and a more rapid agreement of the final account. All of which redounds to the credit of all concerned.

As a final point it should be said that a careful analysis pre-contract can be highly useful in the subsequent substantiation of claims. For, to have successfully analysed the contract, one has also had to understand it; claims will then the better founded because of it.

PRESENTATION OF CLAIMS

FIDIC lays down basic procedures in relation to claims. It says, for instance, in the case of suspension of the works, FIDIC 40(1): 'that the contractor shall not be entitled to recover an extra cost unless he gives written notice of his intention to claim to the engineer within 8 days of the engineer's order'.

That seems entirely reasonable; if the contractor cannot be bothered to claim, why should the employer be bothered to pay?

FIDIC 44, on extensions to the time for completion, says: 'that the engineer is not bound to take into account any extra or additional work or other special circumstances unless the contractor has written 28 days after such work has been commenced or such circumstances have arisen, or as soon thereafter as is practicable, submitted to the engineer's representative full and detailed particulars of any extension of time to which he may consider himself entitled ... '

FIDIC 52(2), on changes to contract rates or prices arising out of a variation, makes the celerity with which the claim notice is presented a mandatory condition precedent to such changes.

FIDIC 52(5) makes the submission by the contractor to the engineer's representative of a monthly account of claims (of which the particulars must be 'as full and detailed as possible') a mandatory condition precedent to certification for payment, whether interim or final, subject only to a rider as to 'reasonable celerity'.

Thus FIDIC's terms generate a very adequate basic procedure, but so many contractors fail to respect those terms. Note, however, that FIDIC is, by itself,

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only the base document: the 'General conditions, Part 1'. An integral part of any FIDIC contract is its 'Part II, Conditions of Particular Application'. The terms of that Part can have a considerable effect on claims, their notices and their eventual success or failure.

For example, in one recent contract, the draftsman was not satisfied with FIDIC's positive stipulations as to the monthly account of claims preceding certifiction; he went further and added the negative provision that no certification whatsoever could subsequently take place if a claim was incorporated into the monthly account unreasonably tardily or not as early as was reasonable practicable. His addendum was not strictly necessary but, at least, now no contractor could argue that the intent of the terms was not clear, especially when they were read together.

Not long ago an Italian contractor was reminded at a meeting by the consultant that there had been several instances of occurrences affecting the progress of the works which would, in principle, justify the admission of a claim for extensions of time, but that not one single notice of claim had as yet been received. The contractor was quite unconcerned: he would produce a 'large claims' document at the end of the job'(!)

The consultant's only overt reaction to that was to observe mildly that the contract appeared to him to make certain (unspecified) provisions about the timing of notices of claims and of the detailed information which had to follow - the 'full and detailed particulars'. The contractor's reply was that he had every intention of following his usual procedure and not doing what the consultant was advising, which was duly noted in the meeting's minutes. Only the contractor was surprised, subsequently, when at arbitration his claim for extension of time was summarily rejected unanimously by the three arbitrators 'for want of prosecution'.

There is a useful article in the Civil Code of several countries which should be imprinted on the minds of contractors' staff, especially the senior ones: 'The contract is a law unto the parties'. Its terms apply whenever and wherever they are not actually in conflict with the law of the country, and where they do not impinge on the public good or interest.

The contractor's contract manager and his senior quantity surveyor must ensure, jointly and severally, that thorough site diaries are kept and that notices of claim are presented promptly. Each claim should be dealt with separately in correspondence, under its own, unique reference number. The causes and effects of any claim which is to be pursued must be carefully monitored, and detailed records made.

Those records must be presented daily to the engineer's representative (ER) for him to check and sign. He may refuse; but he should not. If the records are inaccurate, he should insist that they be amended. Once they are correct they should be signed, albeit against the rubric: 'For record purposes only' (RPO). Such qualification by him of his signature would be in order, for it is ordinarily the engineer who decides on claims and not his representative. Note the obvious however: if full, approved records do exist, then, upon the admission by the engineer of the principle of the claim, the principal is readily calculable.

While it depends upon the exact text of the actual contract, it is nevertheless usually the consultant's job to evaluate claims, not the contractor's. That should not inhibit the contractor from preparing his own figures and submitting them - in the interests of co-operation. In any case, the monthly account of claims cannot be produced unless the contractor calculates his own claims, if only by way of an estimate.

It is unfortunately the case that consultants are all too frequently dilatory in their agreement of a claim. The contractor should forcibly remind the consultant that a 'proper' cash flow is a reasonable entitlement in a commercial relationship and that he, the contractor, has no intention of forgoing that entitlement.

A fundamental point concerning the substantiation of a claim is that the constant repetition of an allegation (even one as to something highly obvious) does not of itself demonstrate the existence of a fact; it merely demonstrates the persistence of the allegation! If an occurrence generated interference to the progress of the works it may well be selfevident, but the question is whether it created a delay to the ultimate completion date?

In such a case, display, by an overlay of the contract programme and the construction progress charts, how the interference had causes, how those causes had effects, how the critical path was affected, and how much of an extension is, therefore, due - and remember that the 'therefore' is obligatory!

It may seem somehow ridiculous to stress such rudimentary points for no sensible builder ever put up a building without foundations. It is, however, incredible how many claims are put up with no foundation at all, whether in fact or in argument. One should always strive to remember that claims have to be persuasive and proof is very apt to be just that, even to consultants!

RESOLVING DISPUTES

A facet of contracting activity which is frequently misunderstood by employers/owners, consultants

(engineers/architects/etc) and contractors is that a claim does not portray, nor represent, nor yet signal a disagreement or a dispute between the parties.

If the claim is founded, at worst, on the contract's reasonable belief as to an implied contractual entitlement, then there can be no question of a disagreement or dispute - not yet, anyway. Indeed, even if the consultant decides that the claim is invalid in principle, even then the most that should be said at such a juncture is that there is a disagreement.

FIDIC 67 lays down the procedure which is available in the event of a 'dispute or difference' as such, and that is not a routine which the contractor ought to elect to implement, except as a last resort, if only because it can be both protracted and expensive.

Something fundamental needs, first, to be reviewed before a drastic cure can be sought for the contractor's ills, and that is the authority of the 'engineer' (as he is called in FIDIC) and of his representative. FIDIC l(l)(d) is where one could expect to find the appropriate definition but it is, at first glance, of little assistance: '... the engineer ... appointed by the employer ... to act as the engineer for the purposes of the contract'.

However, that can tell us a great deal; while the engineer is appointed by the employer, nevertheless he is to act for the purposes of the contract (not, it should be noted, for the employer's purposes, nor for those of the contractor, nor, yet, for his own). The purposes of the contract can only be found by a painstaking survey of, every word of the contract; each time the word 'engineer' appears it is to be noted, together with its context, By the end of such a survey, a picture of the engineer's authority will have emerged, and an understanding of it coalesced.

If a similar survey is conducted individually for the 'employer' and for the 'contractor', it will become quickly apparent that neither of them is credited with authority by the contract. If they had been, it would have permitted them unilateral power, and each is a 'party' with his own, unique, vested interest.

The engineer is demonstrably intended to be 'disinterested' (ie non-partisan, unbiased, without vested interest) and 'authorative' (ie armed with and wielding authority) though, hopefully, not 'authoritarian'!

If a detailed, painstaking word-by-word analysis of the contract is undertaken as to the ER's authority, it will be immediately apparent, from FIDIC 2 (2), that he has none. His 'duties' are watching, supervising (overseeing, not managing,) testing and examining; he does not 'direct'. The stipulation: 'He shall have no authority ... ' is certainly specific enough.

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Granted that the engineer is permitted to delegate to the ER some of his own 'powers' and 'authorities', and granted that, in international projects, simple geographical circumstances demand some such delegation, but at root the system is that the engineer has authority, while his ER has duties; a fundamental distinction.

Thus, at site, it frequently happens that the ER says something which the contractor dislikes or which he believes is outside the ER's scope of authority, ultra vires. The contractor's first step then is to vet carefully the engineer's written terms of delegated authority of his ER. If the ER's action then appears to the contractor to have been without the necessary power, then he should immediately bring it to the ER's attention.

The ER may well disagree, and confirm his instruction, action or decision., In that event, if the contractor is still dissatisfied, he must immediately make a 'reference' to the engineer of the matter, citing FIDIC 2 (2)(b). In the meantime, the contractor may elect not to implement the ER's instruction or not to act upon his decision, but that election must be at the contractor's own risk, for his primary duty remains that of completing on time.

The engineer's subsequent confirmation, reversal or varying of the ER's action; decision, or instruction must be accepted as an engineer's 'instruction' or 'direction', and must be complied with and strictly adhered to by the contractor, by virtue of FIDIC 13.

The matter is one no longer stemming from the ER, but one now emanating from the engineer whose authority even extends to matters 'whether mentioned in the contract or not, touching or concerning the works'. There is, therefore, no other appeal left open to the contractor before he implements the engineer's decision. This is so even if there is a contractual diminution of the engineer's authority under FIDIC 2 (1), for the engineer's action will only require the employer's specific approval in the contractor's unilateral opinion. In such a case the contractor would go ahead and implement the engineer's decision while simultaneously notifying both the engineer and the employer of his opinion.

Thus, any decision, certificate, order, instruction award, evaluation or determination of the engineer stands to be enacted by the contractor, without delay if the programme/progress situation warrants it, though not necessarily without the contractor's stated and recorded disagreement.

Should the contractor feel that the decision, certificate, etc, justifies, or might well justify a claim, he should immediately submit a claim notice to that effect, reciting the chain of events giving rise to the possible claim and making due reference to the con-

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tractual clauses which he believes relevant to his case. Also, he should begin at once the process of recording causes and effects, for presentation to the ER for record purposes only.

It is a view commonly held that the mere nonacceptance of a claim heralds a dispute, or that the actual rejection of one does so. It has already been said that this should not be held inevitably to be the case. However, supposing that the contractor and the engineer have finally 'agreed to disagree' fundamentally on a claim, whether as to its principle or as to its principal, then, at that stage, it may be reasonably said that a dispute does exist. The process set out in FIDIC 67 may then be applied.

One point that is very frequently misunderstood is that the engineer's decision on any matter in dispute referred to him does not have to be notified to the parties 90 days after the reference has been made; it has to be notified to them 90 days after one of them has asked him so to do, and the party lodging that request does not necessarily have to be the one that made the reference.

Either party can refer any dispute to the engineer at any time. He can settle the dispute, in his own mind, at any time thereafter. His written notice of his decision, however, has to await a request for that decision.

At this stage, all concerned are aware of the gravity of the situation, for it is one which goes to the root of that same interparty willnjgness from which the contract itself originally grew. If neither party feels that he is being actively and irreparably damaged by the continuing absence of the engineer's 'definitive' decision, then the matter can be allowed to remain in abeyance for the time being, in the hope of an amicable solution being found, perhaps by the parties themselves considering the matter together.

There is one essential ingredient which has to be borne in mind with regard to the engineer's authority in respect of. claims; it is that he is deemed, in the language of the lawyers, to be a 'creature of the contract'. In most jurisdictions, therefore, he will be unable to go outside the explicit terms of the contract for rules by which to judge and settle matters in dispute.

Contractors may correctly assume, in advance, that the engineer's decisions on claims and on disputes are likely to be only as equitable as is the contract itself.

This means that an overtly inequitable contract will, inevitably and properly, produce inequitable decisions (if the contractor does not like it, he should not have signed such a contract in the first place). The engineer's authority in this respect is 'quasi-arbitral', the 'quasi' being fundamental.

It is reasonable, however, to suppose that arbitrators, having a far wider range of authority (including that emanating from their professional expertise in the industry - if they have been correctly selected - as well as from their judicial status) will have the necessary power and judicial capability to correct grossly inequitable results, notwithstanding any inherent inequitability within the contract. For that reason, arbitration should be considered as the probable inevitable outcome of any dispute arising in a contract whose very nature is inequitable. A good many such contracts do exist!

What happens after the engineer's written notice of his decision on a dispute is dependent upon a further 'so-day' rule; if no appeal is made and notified to the engineer within that time, then his decision becomes 'final and binding upon the employer and the contractor'; see FIDIC 67.

The appeal, if made, is effected by submitting a reference for arbitration to the International Chamber of Commerce, whose rules* apply. The details of those rules must be complied with as much as those of the contract. Just as careful a scrutiny of them, therefore, needs to be made as

·Rules of conciliation and arbitration of the International Chamber of Commerce, ICC, 38 Cours Albert ler, 75003 Paris, France.

was (or, as should have been) made of the terms of the contract. Any contractor who can forsee the possibility of an arbitration under the ICC rules should make a point of thoroughly acquainting himself with them well in advance of the event. More than one party in an arbitration has found his eventual reference nullified by tardy notices.

Just as a contractor expects his employees to respect the company's staff handbook and their individual contracts of employment, so must the contractor, as an employee, respect his contract. Without such respect valuable rights expire and rightful profits evaporate.

ACKNOWLEDGEMENT

The articles upon which this paper is based were first published in Middle East Construction. The cooperation of the Editor of Middle East Construction in allowing the reproduction of these articles is gratefully acknowledged.

The views expressed in this paper are those of the author and are not necessarily those of his employers, Appleyard & Trew, Chartered Quantity Surveyors, nor those of the Institute.

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