Engineering Determination in FIDIC contracts - Due consultation
Two similar but different condition precedent situations …
While it may be sufficient for the Parties to ATTEMPT to settle the dispute amicably before the commencement of arbitration (SC 20.5) …
It is not sufficient for the Engineer to ATTEMPT to reach an agreement between Parties before proceeding to making a determination!
Engineer shall consult with each Party in an ENDEAVOUR to reach agreement (SC 3.5).
Attempt and Endeavour are not exact synonyms.
Endeavour means to try hard to do or achieve something.
There is much more of a process and a much more sincere attempts and determination in Endeavour that are not necessarily in Attempt.
According to #fidic conditions of contract Engineer is obliged to make the effort to encourage parties to reach agreement before making a determination.
The Engineer may know how his/her determination, which is in accordance with Contract, would look like, however, the Engineer may also know that his/her determination may not be in the best interest of the project/parties.
An agreement would be much more appropriate.
A key constructive role of the Engineer that is almost missing in practice.
What would you say about an Engineer who jumps into making determinations and makes no effort to encourage parties to agree?
Would the Engineer be considered in breach of its duty in such cases?