Construction Law/notice requirement in fidic contract
QUESTION: In FIDIC contracts where there is a notice requirement and the notice is given but the notice given is under the wrong head for eg. lets say notice was supposed to be given under 8.4( notice is to be given under 20.1) but it is given under 19.2(Force Majeure event) . what will be the consequence ???
ANSWER: Dear Satyam,
This is a classic case of overlooking.
If the notice is served under wrong clause, it would become an irrelevant notice under the clause it is issued - even though it is done by mistake or type error.
For an outsider / mediator / arbitrator, it would be seen that the person does not understand to interpret the contract..
Hoever, if the dispute is about this notice only, the consequence would be, ----the notice would become null and void even though the other party has not responded to it.
But, if this is one of the supporting documents of a major claim / dispute, the merit of the case would be considering the other documents by ignoring the effect of the wrong notice or even the arbitrator may include the intention in ints true sense while recording his award.
I hope i have adequately answered your question.
--- r sivaraman
---------- FOLLOW-UP ----------
QUESTION: Dear Sir,
Thank you for taking time and answering my question.
Sir further i would like to ask that in case of major claim/dispute the merit of case would be considered ignoring the effect of wrong notice .. sir to support this what arguments / legal principles / contractual provisions/legal doctrines/ precedents are there?
eagerly waiting for your response ... thank you once again for you earlier response ..
Dear Mr Satyam,
better than outside reference, your contract (which is the starting point of all), the correspondence between owner and contractor, instructions by Engineer, progress reports, photographs etc would be more than sufficient.
The arbitrator shall validate them on the merit of the case and relate the context under which the notice would have been issued (but inadvertent error was caused in cross referring the clause) and then record his logics in his award.
wish you all the best..
-- r sivaraman