International Construction Law Review
TIME BARS – FAIR RISK ALLOCATION OR INCREASED AMBIGUITY?
IRIS BIENERT*
Civil Engineer
ABSTRACT
This article addresses the evolution of time bar provisions from the FIDIC 1999 to the FIDIC 2017 Edition (Red Book) and evaluates their adaptability across civil and common law systems and the alignment of the changes with the original intent of time bars. Through an analysis of English and Welsh, Emirati and German cases, this article identifies and evaluates risks associated with the amended time bar provisions. The findings suggest that while the amendments have enhanced fairness for both parties, they have also introduced a higher level of administration, potentially affecting contract management practices in civil and common law environments.
I. INTRODUCTION
“Time bars and how to avoid them”,1 “Claims time bars – beware the time zone trap!”,2 –
the construction law world is filled with discussion around time bars, often feared by contractors as they generally bar them from claiming costs and/or delays once the time specified in the contractual time bar clause has lapsed.
The Fédération internationale des ingénieurs-conseils (FIDIC) is considered one of the pioneers in the concept by introducing fixed time bars in the 1999 Edition of its standard form contract suite.3 Under FIDIC 1999, contractors4 have an obligation to notify and communicate problems to the employer as early as possible under time restrictions. Often regarded as a burden by the contractor, time bars on contractual claims
* Iris Bienert (email: iris.bienert12@gmail.com) is a civil engineer and Construction Law Masters student at Melbourne Law School with international work experience in Germany, France, Australia and Switzerland as engineer, project manager and contract manager. An earlier iteration of this article was submitted as part of coursework International Construction Law within the Master’s programme. Iris extends her gratitude to Dr Donald Charrett, Fellow at the Melbourne Law School, for his support and Robert Werth, FIDIC adjudicator, for his continuous encouragement and advice over the years.
1 Bayrad, C, “Time bars and how to get around them”, (2017) Institute of Construction Claims Practitioners
2 Leighton, J, “Claims time bars – beware the time zone trap!”, (2021) North Standard 1.
3 Relevant Edition of Red Book referred to as “FIDIC 1999” or “FIDIC 2000”.
4 Lower-cased terms in this article have the same meaning given to them in the FIDIC contract.
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