International Construction Law Review
THE PREVENTION PRINCIPLE AND THE RISK OF EMPLOYER-CAUSED DELAY UNDER THE 2017 FIDIC SUITE OF CONTRACTS
Ngo-Martins Okonmah*
Senior Associate, Aluko & Oyebode
INTRODUCTION
Since the publication by the Fédération Internationale des Ingénieurs Conseils (“FIDIC”) of the 2017 Edition of the FIDIC Suite of Contracts, there have been discussions about its key features and how they differ from those of the 1999 FIDIC Suite of Contracts.1 Many commentators have pointed out the distinction between the notification and claims management provisions under the 1999 and 2017 FIDIC Suite of Contracts.2 However, these provisions have not been analysed from the perspective of the risk of Employer-caused delays.
This article analyses the claims provisions in the 2017 FIDIC suites of Contracts from the perspective of the allocation and transfer of the risk of Employer-caused delays. The analysis will compare the distinct approach adopted in 1999 and 2017 FIDIC Suites of Contracts highlighting the issues, implications and proposing recommendations in relation to the way the discretionary power accorded the Engineer under sub-clause 20.2.5 of the 2017 FIDIC Form should be applied in the allocation of Employer-caused risk between the parties.
AN OVERVIEW OF THE PREVENTION PRINCIPLE
A discussion of the prevention principle is relevant because its operation or implication operates to reallocate risk and determine liability for delays resulting from Employer’s default. This Section provides an overview of the prevention principle under English law (and indeed most common law countries) and its effect on the allocation of risk of Employer-caused delay.
* Ngo-Martins is a senior associate in the law fi rm of Aluko & Oyebode, Nigeria and coordinates the firm’s construction and engineering practice. He holds an MSc. Construction Law and Dispute Resolution from King’s College London and has built specifi c expertise in the fi elds of construction law and arbitration. He has prior work experience acting as arbitrator and counsel in both domestic and international arbitration administered under the ICC Rules, with seats in Switzerland, London, Miami, Florida and Nigeria. He is the Founder and Executive Director of Africa Construction Law and sits on the Board of Directors of Africa Arbitration Academy.
1 See Glover, J and Hughes, S, Understanding the FIDIC Red and Yellow Books (3rd Edition, Sweet & Maxwell, 2018), 497–521; Chaplin, R and Studholme, A, “Construction Law Guide to: FIDIC”, [2018] 29(6) Construction Law Journal 14.
2 Glover et. al., (fn 1) 515; Chaplin et. al. (fn 1).
Pt 2] The Prevention Principle and the Risk of Employer-Caused Delay
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