Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Sarwono Hardjomuljadi
Dr, Ir, MSC (Civ), MSBA (Bus), MH (Law), MDBF (ADR), ACIArb (Arb), ACPE(Eng).
FIDIC Affiliate Member , FIDIC Accredited Trainer, FIDIC Adjudicator
DRBF Country Representative for Indonesia
Vice Chairman, Indonesia National Board for Construction Services Development
sarwonohm2@yahoo.co.id & info@sarwonohm.com
www.sarwonohm.com
Elizabeth A Martin and Jonathan Law (2006): Oxford Dictionary of Law, Oxford
University Press
It was even more strongly put in the judgement by Sir Gorell Barnes in
1907 when he said
What a man intends and the expression of his intention are two
different things. He is bound and those who take after him are bound by
his expressed intention. If that expressed intention is unfortunately
different from what he really desires, so much the worse for those who
wish the actual intention to prevail.
[1] FIDIC (2006), General Condirtions of Contract for Construction, Terjemahan Sarwono Hardjomuljadi et al dengan lisensi dari FIDIC, 2008
D05 0.740741
A12 0.722222
D04 0.716049
A11 0.709877
Sarwono Hardjomuljadi
Faktor 1.1 Constructive
Change Order Faktor 2.1 Oral Change Order
by Employer
Persyaratan Umum Kontrak yang tidak adil dan berimbang (unilateral contract)
dapat menyebabkan terjadinya sengketa antara pengguna jasa dan kontraktor,
yang mengakibatkan pengguna jasa di pihak yang dirugikan (employer is the
looser).
Jika kontraktor menang, pengguna jasa harus mengeluarkan biaya ganti rugi
kepada kontraktor, sbaliknya jika pengguna jasa yang menang maka
pengguna jasa tetap harus membayar biaya dari sengketa yang terjadi,
karena terjadinya kemungkinan kualitas yang jelak dan/atau terjadinya
keterlambatan penyelesaian pekerjaan yang pada akhirnya mengakibatkan
terlambatnya revenue yang diharapkan dari pengoperasian asset tersebut.I
Question:
Could it be considered as an Unforeseeable Physical Condition ?
May the contractor submit a claim for this condition?
..
The Employer shall give the Contractor right of access to, and possession of, all parts of the
Site within the time (or times) stated in the Contract Data
If no such time is stated in the Contract Data, the Employer shall give the Contractor right of
access to, and possession of, the Site within such times as required to enable the Contractor to
proceed without disruption in accordance with the programme submitted under Sub-Clause 8.3
[Programme]. This Sub-Clause 2.1. is the most often Sub-Clause used by the contractor as the
basis of their claims.
The Employer shall give the Contractor right of access to, and possession of, all parts of the
Site within the time (or times) stated in the Contract Data, should be carefully interpreted
because it may be interpreted as the whole Site within a specific time mentioned in the contract
data and/or in the tender proposal.
The second paragraph of Sub-Clause 8.3 mentions about the time and disruption and also
that The Contractor shall submit a detailed time programme to the Engineer within 28 days after
receiving the notice under Sub-Clause 8.1 [Commencement of Works]. It means that the action
in the Sub-Clause 8.3. is done after the Sub-Clause 8.1. has been fulfilled. There are four
precedent conditions to be fulfilled before the issuance of the instruction on Commencement of
Works.
Sub-Clause 1.9 Delayed Drawings or Instructions
The Contractor shall give notice to the Engineer whenever the Works are
likely to be delayed or disrupted if any necessary drawing or instruction is
not issued to the Contractor within a particular time, which shall be
reasonable
If the Engineer fails to issue the Drawings within a particular time according to the
Contractors schedule, the Employer should be responsible to give compensation to
the Contractor, providing that the Contractor has followed the procedure and
fulfilled the requirements by giving notice to the Engineer and within the time
frame stipulated in the Contract. This Sub-Clause only mentions within a time
which is reasonable. Both parties should pay attention to this sentence as this
might cause different interpretation lead to dispute.
The Contract Price shall be adjusted to take account of any increase or decrease
in Cost resulting from a change in the Laws of the Country (including the
introduction of new Laws and the repeal or modification of existing Laws) or in
the judicial or official governmental interpretation of such Laws, made after the
Base Date, which affect the Contractor in the performance of obligations under
the Contract.
Rejected Notification
No
14 days (Clause 20.1 Para 5)
Yes (or period proposed by contractor agreed by engineer)
Engineer
response
Article 1 (10)
Alternative Dispute Resolution (or ADR) shall mean a mechanism for the
resolution of disputes or differences of opinion through procedures agreed upon
by the parties, i.e. resolution outside the courts by consultation, negotiation,
mediation, conciliation, or expert assessment.
DISPUTES
ADR LITIGATION
by negotiation by conciliation
by arbitration
by cosultation by mediation by expert assesment
assisted
by mediation by conciliation by expert assesor by arbitration
84 days
(Clause 20.4 Para 4)
Agreed
Decision Final and
binding
28 days Disagreed 28 days
(Clause 20.4 Para 5) (Clause 20.4 Para 5)
Yes
Notice of
Dissatisfication to Amicable
other Party Setlement
56 days No
(Clause 20.5 Para 1)
Commence
of Arbitration
Law No 30
Year 1999 FIDIC GCC
High Court Art 72 Clause 20
District Court
District Court District Court
MEDIATION
Arbitration Arbitration
CONSULTATION
NEGOTIATION
Decision
CONCILLIATION
by the
Dispute
Dispute
Board
Board
EXPERT ASSESMENT Parties
COST
TIME
CERTAINTY
RELATIONSHIP
Based on the questionnaire distributed to 25 Employer Staff, 15 Engineer Staff and 25 Contractor Staff