Knowledge Hub Archive - February 2017

FIDIC 1999 Books - Commentary on Clause 16

Written by Andrew Tweeddale | 21/02/2017

Click through to read Corbett & Co's helpful commentary on FIDIC 1999 book Clause 16....

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A Surprise Award of Third Party Funding Costs

Written by Joanne Clarke | 08/02/2017

Third party funding is increasingly used by claimants in international arbitration even though the cost can be significant. To the surprise of many, the English Commercial Court recently held in Essar v. Norscot that a winning claimant could recover from the losing respondent the cost of obtaining third party funding as a cost in the arbitration. So, what exactly is third party funding and what are the implications of Essar v. Norscot for parties involved in international arbitration....

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The Employer's Agent

Written by Victoria Tyson | 08/02/2017

The Engineer is deemed to act for the Employer and is essentially the Employer’s agent under the FIDIC Red Book 1999. He is not a wholly impartial intermediary, unless such a role is specified in the Particular Conditions, and there is no general obligation under the FIDIC Red Book 1999 for the Engineer to act independently or impartially. However, when he is required to make a determination under Sub-Clause 3.5, he is obliged to make it a fair determination and when he is obliged to issue an Interim Payment Certificate under Sub-Clause 14.6, or a Final Payment Certificate under Sub-Clause 14.13, he must fairly determine the amount due....

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Quick Step: Emergency Arbitration v DAB

Written by Sara Ehsani | 08/02/2017

In 2012, the ICC Rules of Arbitration introduced “Emergency Arbitration”, a procedure that parties may follow to seek urgent interim relief before the constitution of an arbitral tribunal. These provisions will remain unchanged in the new ICC Rules of Arbitration which will come into force in 2017. In 2015, 24 applications for Emergency Arbitration were received by the ICC, of which 10 were filed prior to commencement of arbitration1. In this article we consider whether Emergency Arbitration is inconsistent with the Dispute Adjudication Board in the FIDIC Red Book 1999....

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The Risk of Relying on the Obrascon case’s ruling on Sub-Clause 20.1 Claim Notices

Written by Gabriel Mulero Clas | 08/02/2017

Contractors are sometimes concerned about the politics of their FIDIC 1999 Sub-Clause 20.1 notices. Some Contractors may consider that serving Sub-Clause 20.1 notices may send the wrong message, particularly in the honeymoon period when the works have just begun. However, the consequences of failing to serve a timely claim notice are so dire that doubtless the issue is regularly on every Contractor’s mind. The case of Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar1 in the Technology and Construction Court of England and Wales provided some welcomed relief to many Contractors worldwide who may now attempt to rely on its finding on the timing of claim notices when postponing service of these crucial notices....

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