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Contract Administration, Dispute Boards, Project Management

The Board You Keep or the Board You Call: A Choice Made Long Before Anyone Argues

By Dr Samer Skaik

There is a box in the contract data of every works contract that gets filled in by someone who will never have to live with the consequences.

It is usually completed late in the tender preparation, often by a procurement officer working through a template under time pressure, sometimes by copying whatever was in the last one. It determines whether the project will have a dispute board sitting alongside it from the beginning, or whether one will be assembled at some future moment when things have gone wrong.

I have asked a number of public officials who made that decision on their project. In most cases the honest answer is that nobody made it. It was inherited. …

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Construction Law, Contract Administration, Project Management

Telling a Contractor to Speed Up: The Instruction Employers Keep Getting Wrong

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By Dr Samer Skaik

A project falls behind. The Employer becomes anxious. Somebody suggests that the Engineer should instruct the Contractor to accelerate, and a letter goes out.

What happens next depends entirely on a distinction that is rarely drawn at the time the letter is written, and the cost of getting it wrong runs in both directions. I have seen Employers believe they had purchased acceleration when they had bought nothing at all, and I have seen Contractors treat a routine progress instruction as a blank cheque and spend accordingly.

The provision at the centre of this is Sub-Clause 8.6 in the 1999 editions, renumbered 8.7 in 2017. It is worth being precise about what it does, because it is almost the opposite of what people assume. …

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Construction Law, Contract Administration, Dispute Boards, Project Management

What Does a Dispute Board Actually Cost? A Straight Answer for Public Employers

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By Dr Samer Skaik

Of all the questions I get asked by public sector clients, this is the one that arrives most often by private message rather than in the meeting.

People are slightly embarrassed to ask it. There is a sense that enquiring about the cost of a dispute mechanism is somehow unserious, or that it reveals you have not read something you should have read. So the question gets asked quietly, usually after the formal session has ended, and it is almost always phrased the same way: what does one of these actually cost us?

It is an entirely reasonable question and I wish more people asked it earlier and out loud. A project manager who cannot answer it cannot get the budget line approved, and a budget line that is not approved is one of the most common reasons a board never gets appointed at all. So let me try to answer it plainly. …

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Construction Law, Contract Administration, Dispute Boards, Project Management

When the Banks moved onto FIDIC 2017: What Public Employers Inherited With the New Contract

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By Dr Samer Skaik

A few years ago I sat in a workshop with the contract management team of a national roads agency. They were good at their jobs. Several of them had been administering donor-funded works contracts for well over a decade, and between them they had probably handled more claims than some law firms see in a generation.

About an hour in, one of the senior engineers said something that stopped the room. He said: we have been running this contract the way we ran the last four, and I am starting to think it is not the same contract.

He was right. It was not. …

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Construction Law, Contract Administration, Dispute Boards, Project Management

The Programme Nobody Agreed To: Sub-Clause 8.3 and What Silence Actually Means

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By Dr Samer Skaik

Ask three people on a FIDIC project what status the programme has, and you will usually get three answers.

The planner thinks it is a management tool. The contractor’s commercial manager thinks it is the baseline against which every delay claim will eventually be measured. And the Engineer, if pressed, will often say that it was never approved, which is a curious thing to say about a document the whole project has been working to for two years.

All three are partly right, and the confusion is not their fault. Sub-Clause 8.3 is one of the shortest provisions in the contract carrying one of the heaviest practical loads, and it does not answer the question everyone actually wants answered: is this thing binding? …

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Construction Law, Contract Administration, Dispute Boards, Project Management

The First Four Weeks: How Public Infrastructure Employers Set a Project Up to Avoid Disputes

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By Dr Samer Skaik

The call usually comes about eighteen months in.

Someone from an implementing agency, often a project manager who has inherited the file from a predecessor, explains that things have gone badly wrong. The ground turned out differently from the investigation report. The utility diversions never happened. The contractor has submitted a claim with a number in it large enough that it has now been seen by people several floors above the project office. And somewhere in the conversation comes the question I have learned to brace for: we think the contract requires us to have a dispute board — how quickly can one be set up? …

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Construction Law, Contract Administration

Risk Allocation Under FIDIC: Employer’s Risks versus Contractor’s Risks in Clause 17

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Every FIDIC contract is, at its core, a risk allocation instrument dressed up in construction terminology. Clause 17 is where that allocation is made explicit, dividing the universe of things that can go wrong on a project into two camps: risks the Contractor bears because it priced them, insured them, or is simply best placed to manage them, and risks the Employer bears because no reasonable contractor could have priced or controlled them. Getting this distinction wrong at tender stage, or misapplying it during the works, is one of the most common sources of disputes on international projects.

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Construction Law, Contract Administration, Dispute Boards, Project Management

Parties’ Strategies for Selecting High-Performance Dispute Boards

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In construction projects, the effectiveness of a Dispute Adjudicaiton Board (DB)—or Dispute Avoidance & Adjudication Board (DAAB)—is often determined long before the first project site meeting takes place. The process of appointing board members is a critical phase, acting as the foundation for how effectively a project will manage disagreements and maintain progress.

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Construction Law, Contract Administration, Dispute Boards, Project Management

How to nominate a dispute board member (DAAB) under FIDIC contracts?

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Disputes are almost a given in international construction projects. That’s why the FIDIC contracts include a smart system for resolving them quickly and fairly through Dispute Avoidance/Adjudication Boards, or DAABs. One of the most talked-about resources in this area is the FIDIC President’s List of Approved Dispute Adjudicators — basically a go-to directory of well-respected experts.

If you’re an employer, contractor, engineer, or legal advisor working on FIDIC-based projects, knowing how this list works — and how flexible the appointment process really is — can save you a lot of time, money, and headaches. In this guide, we’ll walk you through the key points in plain language. …

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Construction Law, Dispute Boards

Virtual Site Visits for Dispute Boards under FIDIC Contracts

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The COVID-19 pandemic accelerated the digital transformation of many industry practices, including how Dispute Adjudication Boards (DABs) conduct site visits under FIDIC contracts. What began as a necessity has proven to be a pragmatic and efficient alternative to physical site visits. This post explores the contractual basis, emerging best practices, real-world case studies, and the benefits of virtual site visits, advocating for their continued use in the future. …

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Construction Law, Contract Administration, Dispute Boards

DAAB Jurisdiction under FIDIC 2017: The Distinction from Admissibility

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The FIDIC 2017 suite of contracts (Red, Yellow, and Silver Books) introduced the Dispute Avoidance/Adjudication Board (DAAB) as a key improvement in dispute resolution. This post explains how DAAB jurisdiction is established, how the DAAB makes decisions on jurisdiction and admissibility, and the important difference between these two concepts. Special focus is given to time-barred claims under Sub-Clause 20.2, based on the FIDIC 2017 General Conditions, the DAAB Procedural Rules, and relevant legal commentary. …

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Construction Law, Contract Administration

Termination under FIDIC: For Cause and For Convenience under Clauses 15 and 16 (1999 vs 2017)

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Termination is the most drastic remedy available under any construction contract, and the FIDIC forms are no exception. Bringing a contract to a premature end exposes both parties to substantial financial consequences, demobilisation costs, claims for loss of profit, and frequently protracted disputes over whether the termination was lawful in the first place. The FIDIC suite addresses termination through two parallel regimes — Clause 15, which governs termination by the Employer, and Clause 16, which governs suspension and termination by the Contractor. A wrongful termination can convert the terminating party from an aggrieved innocent into a repudiating defendant overnight, so the procedural discipline these clauses demand is not optional ceremony but the very thing that determines who wins.

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