A client called me. She was frustrated that the words "fair", "impartial", "independent" are easy to spell and sprinkle into a variety of contract terms but are much harder to understand and implement when the contract terms are being used. It transpired that her frustrations were focused primarily with how an engineer makes a determination under the FIDIC forms of contract. Typically, it is Clause 3.5 of the FIDIC based contracts that deal with the engineer's obligation to make determinations. This states: "Whenever these Conditions provide that the Engineer shall proceed in accordance with this Sub-Clause 3.5 to agree or determine any matter, the Engineer shall consult with each Party in an endeavour to reach agreement. If agreement is not achieved, the Engineer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances."
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