Partner, Peter & Kim

Partner, Bryan Cave Leighton Paisner

In certain cases, issuing a notice is a condition precedent to contractual rights and remedies, so that if a notice is not delivered as required under the contract, the effect of non-compliance is that a Party loses such right. The requirements can relate to the form and content of the notice and often require it to be issued within a fixed period, with such requirements commonly referred to as “time-bar” clauses. Sometimes they are coupled with a mutual obligation to respond to the notice within a specified period. The contract would specify that a failure to respond has certain consequences, usually the deemed acceptance of the matter notified. Such clauses are usually referred to as “deeming” provisions.

It is therefore not surprising that construction disputes often deal with issues regarding the validity of notices. Specifically, it is often disputed whether the relevant clause amounts to a condition precedent and, second, whether a valid notice has been issued.

This article will focus on these issues and how they arise in the context of the FIDIC 2017 suite of contracts and clause 20 in particular. This article will then consider the position under English and Korean law on these issues, which, although based on different legal principles, will often lead to the same result. As explained below, when considered in the context of the wider legal principles it can be seen that clause 20 of the FIDIC 2017 suite of contracts embodies a position which maintains the strict requirement