(c) when a Notice or communication is deemed to have been received and/or

take effect;
(d) whether a Notice or other form of communication should be identified as such;
and
(e) whether it should refer to the provision(s) of the Contract under which it is
issued.
(3) GB/08 had introduced, for the first time in a FIDIC contract, a definition of a ‘Notice’
as well as a requirement for it and other forms of communication to be identified as
such and include a reference to the Clause under which it is issued. (247) RB/17 has
kept the requirement for a Notice or other form of communication to be identified
as such, but dispensed with the requirement, in the case of a Notice, that it includes
a reference to the provision(s) of the Contract under which it is issued.
(ii) Related Clauses / Sub-Clauses: 1.4 [Law and Language], 4.3 [Contractor’s
Representative] and 4.9.1 [Quality Management System]. (248)
P 288
(iii) Analysis:
(1) Requirements for Notices and communications
Compared to RB/99, the new Sub-Clause contains a greatly expanded list of types of
communication. Some of the items may seem surprising as they do not constitute
communications in the common sense of the term; that is, a means of sending or
receiving information. For example, ‘agreement’, ‘disagreement’, ‘No-Objection’,
‘record(s) of meeting’, ‘record’ or ‘Review’ (249) do not fall within the common meaning of
a communication as none is a means of sending or receiving information. Consequently, it
may make little sense to say, as in the third paragraph, that they ‘shall not be
unreasonably withheld or delayed’.
After stating that a Notice or other communication ‘shall be in writing’, sub-paragraph (a)
provides that it shall be a paper-original or an electronic original or both as stated in the
Conditions. (250) If it is a paper-original, it must be signed by the authorised person
specified in item (i) of sub-paragraph (a). If it is an electronic original, it must be
generated from any of the systems of electronic transmission in the Contract Data. If no
such system has been stated, it must be acceptable to the Engineer.
Sub-paragraph (b) requires that each Notice be identified as a Notice. When it comes to
other forms of communication, there is a further requirement for it to refer to the
provision(s) of the Contract under which it is issued. However, this requirement does not
apply to Notices (251) as, according to FIDIC, the consequences of failing to serve a valid
Notice are potentially severe (e.g.: application of the deeming provisions if served late;
P 289 or the time bar of a Claim). (252) In FIDIC’s view, by requiring that a Notice be
identified as a Notice, it should be sufficiently recognisable and nothing more should be
necessary.
Sub-paragraph (c) allows the Party or the Engineer giving the Notice or sending the
communication to decide upon the method of transmission, namely, whether by hand,
mail, courier or electronically. If the Notice or communication is to be sent by hand, mail
or courier – electronic communications are not mentioned (253) – the delivery should be
done against receipt. (254)
Sub-paragraph (d) deals with the addresses for recipients’ communications. It is
obviously important that such addresses of the Parties and the Engineer are stated in the
Contract Data (as this sub-paragraph provides) and are updated as appropriate by
Notices.
As ‘day’ is defined in Sub-Clause 1.1.25 to mean any (working or non-working) calendar day
from midnight to midnight, (255) a Notice or other type of communication may therefore –
subject to applicable law – validly be sent or received on any day of the year, without
restriction as to the time of day. (256)
Any Notice or other communication should be in the language of communications (257)
stated in the Contract Data using, it is recommended, the defined terms in the
Conditions, which provide a sort of lingua franca (common language) for communications.
(258)
P 290
Only the Contractor’s Representative – not a delegate – has authority to give or receive
Notices and other communications on behalf of the Contractor. (259)
(2) When Notices and communications have effect
The second paragraph, which has no analogue in RB/99, is important. It states that where:
a Notice or NOD or other communication is to be delivered, given, issued,
provided, sent, submitted or transmitted, it shall have effect when it is
received (or deemed to have been received).
at the recipient’s current address for communications stated in the Contract Data. In case
of a Notice or communication in a paper form, the return receipt will show when such
Notice or communication has become effective. An electronically transmitted Notice or
communication is deemed to have been received on the day after transmission, provided

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 that no non-delivery notification was received by the sender. (260) Important: this means
that an email sent only on the last day of a notification period will be sent too late.
A practical approach should be taken to the formal requirements applicable to Notices
and other communications in the first two paragraphs of this sub-clause: if it can be
established that a Notice or communication has indeed been received and the notified
Party (including the Engineer) has not been prejudiced, it should not be fatal that one or
more of the formal requirements have not been respected. All of the facts and
circumstances, including the purpose of the Notice, should be considered. (261)
The same Notice may, if properly prepared and given, satisfy the requirements of
different Sub-Clauses. (262) A separate Notice is not necessary for each Sub-Clause
requiring a Notice, so long as the single Notice document satisfies the Notice
requirements of each relevant Sub-Clause.
P 291
(3) ‘Shall not be unreasonably withheld or delayed’
The third paragraph specifies that all Notices and other types of communication ‘shall
not be unreasonably withheld or delayed’, which is important where a sub-clause
requires that some action be taken by reference to some communication, but does not
specify a time period within which this should be done. A Party or the Engineer who is
required to act should do so within a reasonable period of time; otherwise a Party may
be in breach of this provision. What is a reasonable period is a question of fact and will
depend on the particular circumstances of the case. (263)
Whereas the third paragraph applies to all types of communication, as defined in Sub-
Clause 1.3, the corresponding paragraph in RB/99 applied to ‘[a]pprovals, certificates,
consents and determinations’ only; that is, to matters which could be expected to be
communicated by a particular time. The paragraph in RB/99 did not apply,
understandably, to the other two types of communication identified in RB/99 (namely
‘notices’ and ‘requests’) as there was not necessarily an expectation that they be
communicated by a particular time.
As the new Sub-Clause makes no such distinction, it may be unclear when some of the
‘communications’ should ‘not be unreasonably withheld or delayed’. While it may be
understandable that an approval, certificate, consent or determination, for example, not
be ‘unreasonably withheld or delayed’, these words make less sense in relation to, for
example, an agreement, Notice or request, as these things may not have to be
communicated by any particular time, or at all.
While the position is not clear, presumably where the Conditions refer to a
communication being at ‘the sole discretion’ of a Party or person (an expression which is
undefined), (264) this requirement would not apply.
P 292
(4) Sending of copies
The last paragraph specifies to whom copies of a ‘Notice or NOD or certificate’ should be
sent, specifying that the paper and/or electronic original (whatever method of
communication the Parties have agreed upon) shall be sent or copied to the Engineer
and the other Party so that all three (each Party and the Engineer) are kept aware, on a
current basis, of those communications under the Contract. All other communications are
to be copied to the Parties and/or the Engineer as provided in the Contract. (265)
(iv) Related Law: Like other Sub-Clauses, Sub-Clause 1.3 is subject to the governing law,
(266) and certain countries or jurisdictions (e.g., the European Union (267) ) have adopted
legislation concerning electronic signatures, providing that such signatures have the
same weight as physical counterparts.
(v) Improvements:
(1) As stated under (iii) Analysis above, Sub-Clause 1.3 identifies as a communication
numerous matters that do not typically constitute a communication, that is,
something that is sent or received. This issue should be addressed.
(2) Similar to GB/08, (268) a Notice could benefit from a reference to the provision(s) of
the Contract under which it is issued. Concern about the risk that a Notice might be
invalidated because of a failure in a Notice to refer to such provision(s) may be
overcome by adding a provision to the following effect: even if a Notice fails to
comply with all of the requirements of Sub-Clause 1.3, it would still be deemed
P 293 valid if, in light of its content, means of transmission and other relevant
circumstances, the intended recipient could reasonably have been expected to
have been informed of its content, especially if it were not prejudiced by the non-
compliance. By requiring that a Notice include a reference to the provision(s) of the
Contract under which it is issued, a recipient would be alerted to its relevance and,
even should users neglect to include such reference at times, as is to be expected,
this would not be fatal if a provision such as that described above were added.
(3) As they can easily be obtained, receipts should be explicitly required for electronic
communications.
(4) Given the global nature of construction and the increased number of time bars in
RB/17, it could be useful to include an explicit provision as to when Notices and
other communications will be deemed to have been delivered and take effect when
the Parties and/or the Engineer are residing in different time zones. (269) Thus, the

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 Sub-Clause could deal with the issue of where a Notice which is timely and thus
valid in one time zone (e.g., England), but may be delivered late and thus be invalid
in another (e.g., China).
--ooOOoo--

1.4 Law and Language

The Contract shall be governed by the law of the country (or other jurisdiction)
stated in the Contract Data (if not stated, the law of the Country), excluding
any conflict of law rules.
The ruling language of the Contract shall be that stated in the Contract Data (if
not stated, the language of these Conditions). If there are versions of any part
of the Contract which are written in more than one language, the version which
is in the ruling language shall prevail.
The language for communications shall be that stated in the Contract Data. If
P 294 no language is stated there, the language for communications shall be the
ruling language of the Contract.
The governing law shall be the law of the jurisdiction stated in the Contract Data or, if
not stated there, the law of the Country, excluding any conflict of law rules.
The ruling language shall be the language stated in the Contract Data or, if not stated
there, the language of these Conditions. If any part of the Contract is written in more
than one language, the version in the ruling language shall prevail.
The language of communications shall be that stated in the Contract Data or, if not
stated there, the ruling language.
Commentary
(i) Main Changes from RB/99:
(1) Unlike RB/99, the Sub-Clause provides that if no governing law is stated in the
Contract Data (formerly the ‘Appendix to Tender’), the law of the Country (i.e., the
country in which the Site, or most of it, is located) shall govern.
(2) Unlike RB/99, the Sub-Clause expressly excludes any conflict of law rules of the
applicable governing law.
(3) Whereas RB/99 provided that, where the language for communications was not
stated in the Contract (the Appendix to Tender), the language for communications
would be that in which the Contract (or most of it) was written, the new Sub-Clause
specifies that where such language is not stated in the Contract Data, it will be the
ruling language of the Contract.
(ii) Related Clauses / Sub-Clauses: 1.13 [Compliance with Laws], 3.1 [The Engineer], 3.4
[Delegation by the Engineer], 4.1 [Contractor’s General Obligations], 4.3 [Contractor’s
Representative], 4.4 [Contractor’s Documents], 6.4 [Labour Laws], 6.8 [Contractor’s
Superintendence], 6.12 [Key Personnel], 13.6 [Adjustments for Changes in Laws], 18.6
[Release from Performance under the Law], 21.2 [Failure to Appoint DAAB Member(s)] and
21.6 [Arbitration]. Rule 4.1 of the DAAB Rules and Article 6 of the example form of DAAB
Agreement.
P 295
(iii) Analysis:
(1) The governing law (270)
The Sub-Clause provides that the Contract shall be governed by the law of the country (or
other jurisdiction (271) ) stated in the Contract Data (or, if not stated, the law of the
Country), excluding any conflict of law rules. (272)
The purpose of the exclusion is to make clear that only the substantive law (273) of the
country concerned – not its conflict of law rules which are also a part of its law – will
apply. Otherwise, the conflict of law rules of the law of the country which is to apply might
(under the legal doctrine known as renvoi (274) ) provide that the law to be applied to a
particular matter is the law of some other country. (275)
The Sub-Clause assumes that the Contract will be governed by a national law of some
kind. As the tender dossier is prepared by, or on behalf of, the Employer, it will usually
P 296 specify that the governing law is the law of the Employer’s country where the Site, or
part of it, will usually be located. There may be little or no possibility for a tenderer to
renegotiate this issue. (276) Indeed, where the Employer is a State or other public body, it
may be mandatory, under the law of the State concerned, that its law (and language)
apply. (277)
If the law to be applied is that of a less-developed legal system, it may not sufficiently
address the issues that arise under a complex construction contract or do so consistent
with internationally accepted standards. (278) In these circumstances, the Parties may
wish to add in the Contract Data that the national law selected will be interpreted and
supplemented in accordance with internationally accepted principles and rules as
contained in the UNIDROIT Principles of International Commercial Contracts 2016. (279) To
achieve this, the Contract Data should provide:

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 The Contract shall be governed by the law of [State X] interpreted and
supplemented by the UNIDROIT Principles of International Commercial
Contracts (2016). (280)
The governing law is not the only legal norm by which the Parties are bound. Pursuant to
Sub-Clause 4.1(f), the Contractor must comply with the ‘technical standards’ stated in the
P 297 Specification, as well as with applicable Laws generally. (281) In addition, pursuant to
Sub-Clause 21.6 [Arbitration] and Article 21 of the ICC Arbitration Rules, the Parties are
bound by any relevant trade usages. (282)
(2) The ruling language
The paragraph in the new Sub-Clause relating to the ruling language is only relevant if
there are different versions of the Contract, or of parts of it, in different languages. (283)
In principle, it is desirable for the ruling language, and the language of the country whose
law will govern the Contract, to be the same as it is often difficult to translate accurately
legal concepts from one language (the language of the governing law) to another. But,
even so, it is not uncommon for the language of the law governing a contract to be
different from the language of the Contract. (284)
The Engineer is required to be fluent in the ruling language of the Contract. (285) In
addition, unless otherwise agreed by the Parties, any arbitration under the Contract must
be conducted in the ruling language of the Contract. (286)
The choice of a ruling language other than English (the language of the official and
authentic text of the RB (287) ) may cause difficulties as translating a construction
P 298 contract into another language is a very challenging exercise. (288) If there are
versions of any part of the Contract in more than one language, then in case of
discrepancies, the version written in the ruling language will prevail. However, sometimes
certain parts of the Contract are written in one language only and other parts are written
in a different language. Such situations should be avoided and the Parties should ensure,
where possible, that all the documents comprising the Contract are written or translated
into the ruling language of the Contract from the outset. (289)
(3) The language for communications
The language for communications must be stated in the Contract Data, or, if no such
language is stated there, it will be the ruling language of the Contract. (290) Assistants to
whom the Engineer may delegate authority under Sub-Clause 3.4, the Contractor’s
Representative and any person to whom the Contractor’s Representative may delegate
authority under Sub-Clause 4.3 and Key Personnel under Sub-Clause 6.12 are all required
to be fluent in the language for communications. Persons providing superintendence for
the Contractor under Sub-Clause 6.8 are also required to be fluent in the language for
communications or, at least, to have adequate knowledge of that language. Therefore, the
Parties should consider amending the foregoing Sub-Clauses if any of those persons may
not have sufficient knowledge of the language of communications. (291)
The language for communications will apply to communications not just between the
Parties and/or with the Engineer but also with the DAAB, unless the Parties and the DAAB
agree jointly otherwise. (292)
(iv) Related Law: A discussion of the main differences between civil law and common law
system as they may relate to RB/17 is contained in Section 4 Common Law and Civil Law
Compared of Chapter II Applicable Law above.
P 299
(v) Improvements: As stated in relation to Sub-Clause 1.1 [Definitions] above, the Parties
and the Engineer should be strongly encouraged, if not required, to use the defined terms
in the Conditions in their communications.
--ooOOoo--

1.5 Priority of Documents

The documents forming the Contract are to be taken as mutually explanatory
of one another. If there is any conflict, ambiguity or discrepancy in the
documents, the priority of the documents shall be in accordance with the
following sequence:
(a) the Contract Agreement;
(b) the Letter of Acceptance;
(c) the Letter of Tender;
(d) the Particular Conditions Part A – Contract Data;
(e) the Particular Conditions Part B – Special Provisions;
(f) these General Conditions;
(g) the Specification;
(h) the Drawings;
(i) the Schedules;
(j) the JV Undertaking (if the Contractor is a JV); and
(k) any other documents forming part of the Contract.

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