BOOK REVIEW: FIDIC 2017: A DEFINITIVE GUIDE TO CLAIMS AND DISPUTES
By Nicholas Alexander Brown. Published by ICE Publishing, November 2021. Pages: 528 ISBN 9780727765314. Price £125.00.
Over the last 20 years, there have been a number of books on the FIDIC suite of contracts. From Nael Bunni’s work on the earlier version of the FIDIC suite to books on the FIDIC 2017 Red and Yellow Books by Jeremy Glover and Simon Hughes QC and by Beau Beaumont, a commentary on the Yellow Book by Jakob Sørensen and a guide to the entire 2017 suite by William Godwin QC, the FIDIC contracts are well covered by commentary. But where Nicholas Brown’s FIDIC 2017: A Definitive Guide to Claims and Disputes stands apart from the field is in its detailed treatment of the provisions that deal with claims and disputes that may arise under these contracts.
Set out over 14 chapters, the book can be divided into three main sections: the first is about the making of claims and their determination by the Engineer; the second is devoted to the Dispute Avoidance/Adjudication Board (“DAAB”) process and the third to the arbitration of disputes (focusing on the ICC Rules) that have not been resolved either by amicable settlement or through the DAAB process.
When one considers that this is a 528-page book1
about just two clauses in the FIDIC 2017 suite, one can begin to appreciate the level of scholarship that has gone into this book.
Let me illustrate with a brief example of a thorny issue that all practitioners will have faced at some time in their career – the effect of late notification on the barring of a claim. FIDIC 2017 deals with this in clause 20.2.1 and, compared to the previous editions, puts the onus on both the Employer and the Contractor to give timely notification at pain of barring of their claims if they fail to so notify. Books that deal with the entire FIDIC contract would spend about a page or so describing what is required by this clause and, those that go a bit further, would possibly discuss issues regarding the enforceability of the barring provision in certain circumstances (such as, where the other party has knowledge) and under certain systems of law (such as, civil law).
Nicholas Brown’s book discusses this clause and its implications over the course of 20 pages. His discussion includes:
- A flowchart of the kind of claims that require to be notified and the timelines for each of them, distinguishing between (what would seem to be) inconstant terminology within the FIDIC contract