‘agreement’ and requires such agreement to be recorded in writing.

The FIDIC Contracts

Guide (2000) had stated with regard to the identical sub-paragraph in RB/99 that an
‘agreement’ does not need to be subject to Sub-Clause 1.3 [Communications]. (232) This is
no longer true as the first paragraph of Sub-Clause 1.3 [Notices and Other
Communications] of RB/17 explicitly refers to an ‘agreement’ as a type of communication
which is subject to Sub-Clause 1.3 (and repeats that it must be ‘in writing’).
Sub-paragraph (d) states that the term ‘written’ or ‘in writing’ means handwritten, type-
P 282 written, printed or electronically made, and resulting in a permanent record. Emails
are likely to satisfy the requirement to be ‘in writing’ as they can result in a permanent
record (e.g., if they are saved in an electronic database or printed out). However, in order
to avoid any disagreement as to whether emails are a valid form of communication, the
Parties should agree on a method of electronic transmission in the Contract Data as
noted in Sub-Clause 1.3(a)(ii), and on the electronic addresses to which communications
should be sent.
Sub-paragraphs (e) and (f), dealing with the interpretation of the words ‘may’ and ‘shall’,
are a welcome development. They clarify that ‘may’ refers to a Party’s or a person’s
option to act and ‘shall’ refers to an obligation to perform the duty referred to.
Sub-paragraph (g) explains that ‘consent’ means that a Party or the Engineer ‘agrees to or
gives permission for, the requested matter’. The Guidance notes that, in keeping with the
dictionary, (233) ‘consent’ does not mean ‘approve’ or ‘approval’ which, under some legal
systems, may be interpreted as accepting or acceptance that the requested matter is
wholly satisfactory with the result that the requesting party may no longer have any – or
have only reduced – responsibility or liability for it. (234)
Sub-paragraph (j) clarifies that ‘execute the Works’ and ‘execution of the Works’ comprise
the construction and completion of the Works and remedying defects as well as design (if
the Contract specifies that the Contractor shall design some part of the Works). Thus,
‘execution of the Works’ is used as a generic term replacing the lengthy references in
RB/99 to execution and completion of the Works and the remedying of any defects. (235)
(iv) Related Law: The interpretation rules in Sub-Clause 1.2 are not the only ones that will
apply. Practically, every country’s system of law has rules providing how contracts are to
be interpreted. Therefore, the rules on contract interpretation of the law governing the
Contract under Sub-Clause 1.4 [Law and Language] will complement the rules in Sub-
Clause 1.2. (236)
P 283
(v) Improvements:
(1) Numerous Sub-Clauses use the term ‘at the sole discretion of’ a Party, (237) ‘at the
Employer’s sole discretion’, (238) ‘at the sole discretion of the Employer’, (239) or ‘at
[the DAAB’s] sole discretion’. (240) A law dictionary defines ‘sole discretion’ as
meaning: ‘[a]n individual’s power to make decisions without anyone else’s advice or
consent’. (241) If this is the intended meaning, (242) it would be better if this were
clearly explained rather than left to inference.
(2) While FIDIC has stated that time periods specified in days ‘commence on the
beginning of the day following the date of the act which constitutes the starting-
point’, (243) this important point should be in the General Conditions and not just in
the Guide. But it does not entirely resolve the ambiguity about time periods. When
referring to time periods stated in days, RB/17 often refers to terms, such as
‘before’, ‘after’, ‘within’, ‘not less than’, ‘not more than’ and ‘not later than’.
Difficulties may arise in practice with regard to computation of these time periods.
For example, if a Party or the Engineer has to do something under the Contract
‘within 7 days’ after a certain event or circumstance, (244) would the seventh day of
the period be considered to be ‘within’ the seven-day period or only the sixth day?
(245)
P 284
In order to avoid uncertainty, Parties may consider adding an additional sub-
paragraph in Sub-Clause 1.2 stating not only that the day when the respective event
or circumstance has occurred or will occur is not to be taken into account in the
calculation of the time period (as FIDIC has specified), but that, in such a case, the
last day of the time period will be deemed included in such period. (246)
(3) As gender-neutral wording has already been introduced into RB/17, consideration
should be given to deleting sub-paragraph (a) of Sub-Clause 1.2. In addition, the
references to ‘he/she’, ‘his/her’ and/or ‘himself/herself’ should be replaced by ‘it’,
‘its’ and ‘itself’, which are more modern and concise (and consistent with the usage
both in The World Bank’s COPA and this commentary on RB/17).
--ooOOoo--

1.3 Notices and Other Communications

Wherever these Conditions provide for the giving of a Notice (including a
Notice of Dissatisfaction) or the issuing, providing, sending, submitting or
transmitting of another type of communication (including acceptance,
acknowledgement, advising, agreement, approval, certificate, Claim, consent,
decision, determination, disagreement, discharge, instruction, No-objection,
record(s) of meeting, permission, proposal, record, reply, report, request,
P 285

24
© 2024 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 P 285 Review, Statement, statement, submission or any other similar type of
communication), the Notice or other communication shall be in writing and:
(a) shall be:
(i) a paper-original signed by the Contractor’s Representative, the
Engineer, or the authorised representative of the Employer (as the
case may be); or
(ii) an electronic original generated from any of the systems of
electronic transmission stated in the Contract Data (if not stated,
system(s) acceptable to the Engineer), where the electronic original
is transmitted by the electronic address uniquely assigned to each
of such authorised representatives,
or both, as stated in these Conditions; and
(b) if it is a Notice, it shall be identified as a Notice. If it is another form of
communication, it shall be identified as such and include reference to
the provision(s) of the Contract under which it is issued where
appropriate;
(c) delivered by hand (against receipt), or sent by mail or courier (against
receipt), or transmitted using any of the systems of electronic
transmission under sub-paragraph (a)(ii) above; and
(d) delivered, sent or transmitted to the address for the recipient’s
communications as stated in the Contract Data. However, if the recipient
gives a Notice of another address, all Notices and other communications
shall be delivered accordingly after the sender receives such Notice.
Where these Conditions state that 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 under sub-paragraph (d) above. An electronically
transmitted Notice or other communication is deemed to have been received
on the day after transmission, provided no non-delivery notification was
received by the sender.
P 286
All Notices, and all other types of communication as referred to above, shall
not be unreasonably withheld or delayed.
When a Notice or NOD or certificate is issued by a Party or the Engineer, the
paper and/or electronic original shall be sent to the intended recipient and a
copy shall be sent to the Engineer or the other Party, as the case may be. All
other communications shall be copied to the Parties and/or the Engineer as
stated under these Conditions or elsewhere in the Contract.
Wherever these Conditions provide for the giving of a Notice or another type of
communication (including, among other things, agreement, approval, certificate, Claim,
consent, decision, determination, instruction, Review, Statement ‘or any other similar
type of communication’), such communication must be in writing, and in the form of: (i) a
paper-original signed by an authorised person; or (ii) an electronic original generated
from any of the systems of electronic transmission stated in the Contract Data (if not
stated, system(s) acceptable to the Engineer); or (iii) both, as stated in these Conditions.
A Notice must be identified as such. If it is another form of communication, it must be
identified as such and include a reference to the provision(s) of the Contract under
which it is issued where appropriate. A Notice or other communication must be
delivered by hand (against receipt), or sent by mail or courier (against receipt) or by
electronic means as in (ii) above.
A Notice or other communication shall have effect when received (or deemed to have
been received) at the recipient’s current address. If transmitted electronically, it is
deemed to have been received on the day after transmission provided that no non-
delivery notification was received by the sender.
Notices and other communications must not be unreasonably withheld or delayed.
A Notice or certificate issued by a Party or the Engineer shall be sent to the intended
recipient with a copy to the Engineer or the other Party, as the case may be. All other
communications shall be copied to the Parties and/or the Engineer as stated in the
Contract.
P 287
Commentary
(i) Main Changes from RB/99:
(1) Sub-Clause 1.3 in RB/99 identified six types of communication (‘approvals,
certificates, consents, determinations, notices and requests’) to which it applied.
The new Sub-Clause contains a greatly expanded list of types of communication.
(2) The new Sub-Clause also deals for the first time with:
(a) whether a Notice or other communication in a paper form must be a paper-
original;
(b) who should sign a Notice or communication in paper form;

25
© 2024 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.