Construction Law/Claims

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Question
Thank you for your earlier informative contribution. Still on FIDIC 1999 :
1. what are the odds of an arbitrator throwing out a case because a wrong claims notice or procedure was not followed ? in this case Main Contractor should have filed a 2.5 Employers Claim but instead filed a 20.1 Contractors Claim ?
2. It appears to me that the Employers counterclaim has neither any contractual nor legal basis but was triggered solely by our demand for payment due to us. what is the position of FIDIC 1999 on such obvious act of bad faith ? any clauses .
3. The same Employer went to the extent of falsifying the measurement record in a desperate bid to cheat us from our money. What does FIDIC 1999 say about ethics amongst the contracting parties ? we filed a police report about the fraud attempt.
4. thank you and i would welcome your usual helpful comments.

Answer
Dear Jackie,


Thank you for coming back.

Firstly, I would strongly suggest you read the Red FIDIC Book '99, so you understand what are the rules. Do not simply rely on these answers, they will not be sufficient to keep you at bay.

Or at least hire a specialised claims/ contract manager.

To answer your queries:

1. First you must go to disputes adjudication, then to amicable settlement and only then to arbitration.

Odds should be quite high, but depends on your Position Papers, on how you build your case. Sure enough, aside showing the case should be dismissed because of wrong procedure, you should also dismantle their claim for lack of merit and failure to demonstrate the quantum.

2. Then proceed with demonstrating that in your Position Paper in the adjudication process. FIDIC does not say anything about that, FIDIC refers to clear conditions on how to handle the contract - read the book!

3. Nothing to do with FIDIC. A Party takes a stand, the other present the counterargument. It will be right the one making best its case. Read the book!

4. You're welcome, read the book!

Good luck! After you read the book!

Construction Law

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Florin NICULESCU

Expertise

Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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