160729030242

Adrias Tan
MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Senior Legal Counsel, Hyundai Engg & Construction Co Ltd
Managing Claims Under FIDIC
Adrias Tan
Senior Legal Counsel, Hyundai Engineering & Construction Co Ltd

Fellow, Chartered Institute of Arbitrators
Fellow, Singapore Institute of Arbitrators
Fellow, Singapore Institute of Builders
Member, Society of Construction Law, UK
Member, Society of Construction Law, Singapore
Associate Member, Singapore Academy of Law
Associate Lecturer, Royal Melbourne Institute of Technology (SIM Singapore)
Panel of Arbitrators, SIArb
2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

ADRIAS TAN
Claim and Procurement

After Contract Award: How to minimise
Claims and, if the Claims are disagreed, how
to avoid contested Claims from becoming
disputes?
Pursuing Claims (if you havent managed to
avoid them!)
Civil v Common Law comparison: different
approaches to Claim Quantification
The Requirements for Notices of Claim
Can the Conditions Precedent for notices
always be enforced?
What constitutes detailed particulars of a

Claim?

Claims Differentiated from Variations
Contractual Provisions on Variations
Alterations and Modifications to Original
Scope and Extent of Permanent Works
Contractual Provisions on Claims

Compensation not anticipated in Original
Contract
Cost Implications from Variations

Evaluation and Remeasurement
Cost and Time Implications from

Claims
Express contractual provisions entitling
submission of claims

Contractual Basis for Variations
Changes in quantities of any item of work
included in the Contract
Changes to quality and other characteristics
of any item of work
Changes to levels, positions and/or
dimensions of any part of work
Omission of any work unless it is to be carried
out by others
Any additional work, Plant, Materials or
services necessary for Permanent Works,
including any associated Tests on Completion,
boreholes and other testing and exploratory
work
2016Changes
Adrias Tan MSc BSc(Hons)
LLB(Hons) FCIArb FSIArb or timing of execution
to sequence

Contractual Basis for
Claims
Delayed drawings or
instructions
Right of access
Setting out
Unforeseen physical
conditions
Fossils
Testing
Extension of Time for
Completion
Loss and Expense due to
Variations
Suspension of
works
Evaluation and
Measurement
Omissions
Value
Engineering
Interference
with tests on
completion
Changes in
legislation
Employers
Risks
Minimising and Avoiding Claims

Commercial Risks and Monetising
Profits
Complexity of Claims
Changes in Design Intent and Employers
Requirements
Ambiguities in Contract Documents
Contracting Strategies
Lump Sum EPC
Reimbursable
Mixed or Hybrid Design/Bid/Build
Procurement, etc
Dispute Adjudication Board
Resolving disputes at early stages
Pursuing Claims
Administration and Management of
Contract
Familiarity with Contract Documents,
Forms of Contract
Familiarity with Contractual procedures
and protocol
Claims Management
Notices and Timelines
Substantiation of Information
Notices and Correspondence

Timeline Condition Precedent
Notices for Actual and Potential Delay
2016 Adrias Tan
Contemporary
Records
Different Approaches to Claim

Common Law Approach
Timescales: Directory or Mandatory

Requirements
Bremer Handelgesellschaft v Vanden
Avenne Izegem
Notice precedent held binding if precise
time is stipulated
Express language used on forfeiture of
rights due to non compliance with
condition precedent
Multiplex Construction v Honeywell

Control Systems
Condition precedent allows Employer
opportunity to withdraw instructions with

Civil Law Approach
More Lenient Non compliance with time

bar not fatal
UAE Civil Code Article 243(2)
With regard to the rights (obligations)
arising out of the contract, each of the
contracting parties must perform that
which the contract obliges him to do

If the wording of a contract is clear, it may
not be departed from by way of
interpretation to ascertain the intention of
the parties

Civil Law Approach
UAE Civil Code Article 318
No person may take the property of

another without lawful cause, and if he
takes it he must return it
Doctrine of Unjust Enrichment

The Employer precluded from relying on a
time bar provision to avoid payment to the
Contractor for works performed and for
works from which the Employer has
benefitted particularly if the only reason
for withholding payment is the lateness of
the Contractors claim
Requirements for Notices of Claim

Notice in Writing
Notice served under Clause 20.1
Within 28 days after he became aware,
or should have become aware, of the
event or circumstance
When should the Contractor be aware:
Imputed Knowledge or Objective standard
Question: who is the arbiter of when the
Contractor should have become aware, the
Engineer or Contractor?
Event or Circumstance Giving Rise to

Claim
Fully detailed claim, monthly updated
particulars, extension of time required
Enforcing Condition Precedent

Doctrine of Consensus ad Idem
If the Contractor fails to give notice of a
claim within such period of 28 days, the
Time for Completion shall not be
extended, the Contractor shall not be
entitled to additional payment, and the
Employer shall be discharged from all
liability in connection with the claim
Rationale
Contractor notifies Employer, to enable
Employer to avert unintended
consequences
potential disputes resolved early

Failure to comply with timescale party

Multiplex Constr v Honeywell Control
Systems
Contractual terms requiring a contractor
to give prompt notice of delay serve a
valuable purpose; such notice enables
matters to be investigated while they are
still current. Furthermore, such notice
sometimes gives the employer the
opportunity to withdraw instructions
when the financial consequences become
apparent per Justice Jackson
Notice triggered not only upon Contractor
becoming aware of relevant event or
also when Contractor
2016circumstance,
Adrias Tan MSc BSc(Hons) LLB(Hons)but
FCIArb FSIArb

Non Compliance Not Fatal
If the Contractor fails to comply with

this or another Sub-Clause in relation to
any claim, any extension of time and/or
additional payment shall take account of
the extent (if any) to which the failure
has prevented or prejudiced proper
investigation of the claim
Whether enforcing time bar amounts to a
penalty in the face of an Employers Valid
Delay Factor or a Valid Variation
Onus of proof that the time bar should be
imposed generally lies with the Employer

Obrascon Huarte Lain SA v HMs AG
for Gibraltar
Technology and Construction Court (TCC)
in London adopted a relaxed
interpretation of this requirement, ruled
that the 28-day period for notifying a
claim for EOT only begins following the
onset of actual delay flowing from the
event or circumstance which caused it
Judge Akenhead J remarked that he could
see no reason why Clause 20.1 should be
construed strictly against Contractor:
"can see reason why it should be
reasonably
broadly, given its
2016construed
LLB(Hons) FCIArb FSIArb

for Gibraltar
notice of a claim for EOT does not have to
be given pursuant to Clause 20.1 until
there actually is delay, although
Contractor can give notice when it
reasonably believes that it will be
delayed
Clause 8.4: entitlement to extension
arises if and to the extent that the
completion is or will be delayed by
various listed events, such as variations
or unforeseeable conditions
ofLLB(Hons)
time
can be claimed either
2016Extension
FCIArb FSIArb

for Gibraltar
Clause 20.1: event or circumstance
described in can mean either the incident
(variation, exceptional weather or one of
the other specified grounds for
extension), or the delay which results or
will inevitably result from the incident in
question
Clause 8.4: Wording is is or will be
delayed by, and not: is or will be
delayed whichever is the earliest

Chiemauer Membran-und Zeltbau
GmbH v New Millennium Experience
English Court of Appeal held that such
condition precedent is not enforceable
Depending on commercial sense and
intentions of contracting parties, and
even for some condition precedent
clauses, a court or arbitral tribunal may
refuse to interpret it literally
Detailed Particulars of a Claim

Chiemauer Membran-und Zeltbau
GmbH v New Millennium Experience
Contractor to submit Fully Detailed Claim
within 42 days of event or circumstance
Contractor can propose for the Engineers
approval an extended time period to
submit a detailed claim
Cause and effect of Delay, Culpable and
Concurrent Delay, reasonable measures
taken to mitigate delay
Particulars include correspondence,
meeting minutes, site records,
photographs, narratives, schedules, etc

Updated construction program showing
Engineers Obligations
Engineer has 42 days to Approve or
Disapprove with Detailed Comments
Engineer can propose for the Contractors
approval an extended time period to
respond
Request any necessary further
particulars
Engineer unreasonably delaying a
response to a Claim or requesting
unnecessary further particulars
Clause 3.5: consulting with Contractor, try
to reach an agreement. If not possible to
reach agreement, make a fair
2016determination
Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb
Engineer Failure to Respond within 42
days
No express sanctions for the Engineers
failure to provide a timely response
Effect is Contractor unduly relieved of his
contractual obligations; Contractor not
kept aware of his contractual rights and
entitlements arising from such valid
claims and notifications
Prevention Principle
Where Engineer fails to provide a timely

response or fails or refuses to grant an
extension of time inspite of the Valid
Delay Factor
Employer precluded from holding
Contractor to completion date, due to
Employer or his authorised
Representatives act or omission
preventing Contractor from completing by
that date
Completion time becomes at large;
obligation to complete by specified date
byLLB(Hons)
implied
obligation to
2016replaced
FCIArb FSIArb
Roberts v Bury Improvement
Commissioners
well established principle at common law

that:
... no person can take advantage of the
non-fulfilment of a condition the
performance of which has been hindered
by himself ... per Blackburn and Mellor JJ
Reason for that rule is that otherwise a
most unreasonable burden would be
imposed upon the Contractor
Employers right to impose liquidated
damages for delay replaced by
2016unliquidated
Adrias Tan MSc BSc(Hons) LLB(Hons)
FCIArb FSIArb
damages,
based on new
Shawton Engineering Ltd v DGP
International Ltd
Court of Appeal held that what is a
reasonable time has to be judged as at
the time when the question arose, in the
light of all the relevant circumstances:
There were variations, but no
contractual mechanisms for extending
time on account of the variations (or the
mechanisms have failed). The effect in
law of the variations was that the
Contractor became obligated to complete
their work within a reasonable time
Shawton Engineering Ltd v DGP
International Ltd
The judge rejected that a reasonable time
should be ascertained by reference to the
Original Contract Periods as extended
only by the agreed periods for variations
The question of what is a reasonable
time within which to complete particular
work is an objective question and is not
dependent upon the actual time which a
person may have agreed to carry out the
work. Parties may have over or under
estimated what time the work would
require.
time which has to be
2016actually
LLB(Hons) FCIArbThe
FSIArb
FLOW CHART Clause 20.1 Claims

Interactive Voting System Multiple Choice Questions
The Engineer is empowered under the
prevailing express conditions to
require that the Contractor submits
claims for evaluation of Variations
pursuant to Clause 20.1 and subject to
the timeline condition precedent before
he is entitled to compensation for the
additional work instructed?
1) AGREE
2) DISAGREE

Interactive Voting System Multiple Choice Questions
If the Engineer delays, refuses or fails
to respond to the Contractors Claims
pursuant to Clause 20.1, the
Contractors rights may be prejudiced
as a result. The FIDIC Forms should
address this lacuna.
1) AGREE
2) DISAGREE

Adrias Tan
MSc | BSc(Hons) | LLB(Hons) | FCIArb | FSIArb
Adrias has more than two decades of practical working experience

in the construction industry, working currently as in-house legal
counsel for an MNC Company. Adrias is professionally trained in
litigation, arbitration, adjudication, mediation and dispute
resolution, and is an accredited arbitrator. He has handled several
institutional and ad-hoc arbitral proceedings, as well as having
tutored in SIArb, and conducted numerous workshops and
seminars on diverse construction, contractual and legal issues
including various Standard Forms of Contracts. He also lectures at
the Royal Melbourne Institute of Technology, at the Singapore
Institute of Management Campus teaching law subjects.
email: adriastan@yahoo.com
sg.linkedin.com/in/adrias-tan-5ab34035

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Adrias Tan

MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Managing Claims Under FIDIC

Senior Legal Counsel, Hyundai Engineering & Construction Co Ltd

2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Managing Claims Under FIDIC

Claim and Procurement

2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Managing Claims Under FIDIC

Claim and Procurement

Contractual Provisions on Claims

Cost Implications from Variations

Cost and Time Implications from

Managing Claims Under FIDIC

Claim and Procurement

Managing Claims Under FIDIC

Claim and Procurement

Managing Claims Under FIDIC

Minimising and Avoiding Claims

Dispute Adjudication Board

2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Resolving disputes at early stages

Managing Claims Under FIDIC

Notices and Correspondence

Managing Claims Under FIDIC

Different Approaches to Claim

Timescales: Directory or Mandatory

Multiplex Construction v Honeywell

Managing Claims Under FIDIC

Different Approaches to Claim

More Lenient Non compliance with time

UAE Civil Code Article 265(1)

UAE Civil Code Article 246(1)

2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Managing Claims Under FIDIC

Different Approaches to Claim

No person may take the property of

Doctrine of Unjust Enrichment

Managing Claims Under FIDIC

Requirements for Notices of Claim

Event or Circumstance Giving Rise to

Managing Claims Under FIDIC

Enforcing Condition Precedent

2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Managing Claims Under FIDIC

Enforcing Condition Precedent

Managing Claims Under FIDIC

Enforcing Condition Precedent

If the Contractor fails to comply with

Managing Claims Under FIDIC

Enforcing Condition Precedent

Managing Claims Under FIDIC

Enforcing Condition Precedent

Managing Claims Under FIDIC

Enforcing Condition Precedent

Managing Claims Under FIDIC

Enforcing Condition Precedent

2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Managing Claims Under FIDIC

Detailed Particulars of a Claim

2016 Adrias Tan MSc BSc(Hons) LLB(Hons) FCIArb FSIArb

Managing Claims Under FIDIC

Managing Claims Under FIDIC