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Construction Law/Extension of deadline for Engineer's decision and period of amicable settlement

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Question
Dear Mr.Peter M.Elliott,

Good Morning,

I am working on the Dubai Municipality Mega projects here in UAE and I my question ( 1 & 2) is:

1.Due to complex nature of claim and in order to review and reach a decision which is fair to both Employer and the contractor, can The Engineer request the Contractor to extend the time period for giving the “Engineer’s Decision”.
The clause 67.1 of Dubai Municipality of Contract (almost similar to FIDIC, 4th Edition, 1987) dealing with this states that:

“No later than the eighty-fourth day on which he received such reference the Engineer shall give notice of his decision to the Employer and the Contractor. Such decision shall state that it is made pursuant to this clause”.

Please note that in this case Engineer has sent a written request to Contractor citing the reason as stated above and sought confirmation of Contractor’s agreement to delay the issue of Engineer’s decision by one month, for which contractor sent a written reply stating that he has no objection for the extension.

2.Can the contractor request for extension of deadline for amicable settlement. Contractor has given the notice of intention to commence arbitration with in the time frame stipulated in the Contract and requested for amicable settlement prior to arbitration.

The clause 67.1 of Dubai Municipality of Contract (almost similar to FIDIC, 4th Edition, 1987) dealing with this states that:

”If either the Employer or the Contractor be dissatisfied with the decision of Engineer, or if Engineer fails to give notice of his decision or of the reasons for his decision on or before the eighty-fourth day after the day on which he received the reference, then either the Employer or the Contractor may on or before the seventieth day after the day on which he received notice of such decision, or on  or before the seventieth day after the day on which the said period of 84 days expired, as the case may be, give notice to the other party, with a copy for information to the Engineer of his intention to commence arbitration”.

The clause 67.2 of Dubai Municipality of Contract (almost similar to FIDIC, 4th Edition, 1987) dealing with this states that:

“Where notice of intention to commence arbitration as to a dispute has been given in accordance with sub-clause 67.1, arbitration of such dispute shall not commence unless an attempt has first been made by the parties to settle such disputes amicably. Provided that, unless the parties otherwise agree, arbitration may be commenced on or after  fifty-sixth  day after the day on which notice of intention to commence arbitration of such dispute was given, whether or not any attempt at amicable settlement thereof has been made”

Please note that contractor and the Employer have mutually agreed through written correspondence to extend the duration of amicable settlement for almost 2 years and still negotiations/discussions are ongoing.

UAE laws will apply.

Regards,

Kaushalendra Tripathi

Answer
Dear Kaushalendra Tripathi,

Anything is allowable if the parties agree.  If the parties can agree on extensions, then at least they are agreeing on something, which bodes well for the future.  Goodwill is most important for the settlement of disputes, and certainty is better than haste.  However, one party may lose patience if the process continues too long.

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

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Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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