Time-bar clauses under FIDIC standards

This webinar took place on 21 September 2023 and was organised by Ciarb's Iberian Chapter. Time-bar clauses in FIDIC contracts was the focus of this event. Particularly Contract Clause 20.1, 'Contractor's Claim' in the FIDIC 1999 contracts. This clause specifies that the claiming party must notify the Engineer describing the event "as soon as practical, and no later than 28 days after the Contractor became aware or should have become aware of the event or circumstance." The significance of the 'notice of claim' versus the 'fully detailed claim' was discussed during the event. Additionally, there was consideration of whether these two types of claims should be treated differently as condition precedents under both the FIDIC 1999 contracts and the FIDIC 2017 contracts.
The panellists delved into the recent DIFC judgment of Panther Real Estate Development LLC v Modern Executive System Contracting LLC to provide insights and analysis. In this judgment, the judge held that the submission of a notice of delay "ran from the date when the Contractor was aware or ought to have been aware of an event or circumstance that could give rise to a claim for an extension of time, regardless of whether there was or had been any actual delay by that time."
This DIFC judgment was analysed and compared to the English High Court decision in Obrascon Huarte Lain SA v Attorney General for Gibraltar. In the latter case, the judge interpreted that the contractor has the choice of giving notice of delay when it becomes evident that a delay would result from the event or at a later date when the delay had already begun to be incurred. Furthermore, the event included comments on the influence of the DIFC judgment on subsequent arbitral decisions and the principle of good faith within the region. The aim was to engage in a comprehensive discussion, considering different perspectives and recent legal developments related to the time-barred clauses in a contract under FIDIC clauses.
Speakers:
Natalia Barroso
Antonio Amusategui Batalla
Abdelkader Khalladi
Slava Kiryushin
Mehmet Karakoc