I recently read an interesting article by Joseph Durkin, Senior Vice President at Burford Capital. The article discusses notices, with a focus on the Saudi Arabian jurisdiction.

This region is known for using FIDIC. And under FIDIC, once aware of an event which provides entitlement to claim, the Contractor must submit a notice of claim within 28 days. If notice is not given, the Contractor loses all entitlement. Now, in a common law jurisdiction, the situation is simple. If the Contractor has signed an agreement which says that if they do not submit a notice, the court will uphold the Contract. As a result, the Contractor will not be entitled to anything. In civil jurisdictions, however, things may not be quite so straightforward.

The article refers to the findings of tribunals in Saudi Arabia, Dubai, Qatar and Kuwait. In these jurisdictions, the parties must act in good faith. The article explains that in some circumstances, however, the notice provisions have not been upheld either entirely or partially by arbitral proceedings or in the courts. The important phrase here, however, is “in some circumstances”. In some cases, the situation is certainly not clear cut-and in other circumstances, the time bar has been upheld. Whilst the article draws on Middle East experiences, it doesn’t matter where in the world you are working, this situation is fairly typical of civil law jurisdictions.

Given the uncertainty of such a situation, isn’t it better to simply give notice within the time frame rather than be forced to spend time and a lot of money challenging a decision via legal proceedings?

10 Tips for Notices

Preparing and sending a notice of claim is not an onerous task, so here are my 10 top tips for getting notices right:

1. Ensure that the document is identified as a notice.

2. Ensure that the notice is delivered to the address(es) stated in the Contract.

3. Ensure that the notice is delivered by the means stated in the Contract.

4. Ensure that the notice is copied to the Employer.

5. Make reference to the clause(s) of the Contract which require the notice to be given.

6. Briefly describe the circumstances of the event giving rise to the notice.

7. Record relevant dates in the notice.

8. Restrict the contents of the notice to the requirements of the clause that requires the notice to be given. Do not go into detail of the effect of the event. The time to do this is when you submit the particulars of the claim.

9. Avoid accusatory language and finger pointing. A simple statement of the facts cannot be argued and is less likely to elicit a defensive response.

10. If you are unsure whether the event will have an effect on the time for completion or will incur additional cost, send a notice anyway. If, having later examined the circumstances more thoroughly, you decide not to submit a claim, then it’s a simple matter to write to confirm the situation.

Interested in learning more about notices under FIDIC? Check out our FIDIC e-courses where we cover this topic and much more regarding your obligations, rights and remedies under these popular contracts. 

You may also be interested in adding these books to your bookshelf: FIDIC 1999 Notices and FIDIC 2017 Notices.