Notice provisions are one of the most heavily contested aspects of extension of time claims in the Middle East. Many otherwise meritorious claims for additional time and prolongation cost have been rejected — by engineers, dispute boards and arbitral tribunals — because the contractor failed to give a timely or adequate notice of the delay event. Understanding how notice provisions operate, and in particular how they may operate as conditions precedent, is therefore essential for any party involved in the administration or analysis of an extension of time claim.
A 'condition precedent' is a contractual requirement that must be satisfied before a particular right or entitlement arises. Where a notice provision is drafted as a condition precedent, the contractor's entitlement to an extension of time depends on the timely service of a compliant notice. If the notice is late, defective or omitted altogether, the entitlement does not arise — even if the underlying delay event was clearly an employer-risk event that genuinely affected the critical path of the works.
The clearest example of this approach is FIDIC Sub-Clause 20.1 of the 1999 Red, Yellow and Silver Books, and Sub-Clause 20.2 of the 2017 editions. These provisions require the contractor to give notice of any claim for additional time or money 'as soon as practicable, and not later than 28 days after the contractor became aware, or should have become aware, of the event or circumstance'. The clause expressly states that if the contractor fails to give such notice within the 28-day period, the time for completion shall not be extended and the contractor shall not be entitled to additional payment. This is widely regarded as a condition precedent in arbitral practice.
NEC contracts adopt a similar but distinct approach. Under NEC3 and NEC4, the contractor must notify a compensation event within eight weeks of becoming aware of it. If the contractor fails to do so, it is not entitled to a change in the prices, the completion date or a key date — unless the project manager should themselves have notified the event. The NEC approach is more onerous in some respects (the time limit is shorter than the typical 28 days under FIDIC) but more forgiving in others (it expressly preserves entitlement where the project manager should have notified).
Whether a particular notice provision actually operates as a condition precedent is a question of contractual interpretation. The general principles, derived primarily from English law and widely applied across Middle Eastern arbitrations, are that the clause must (a) state the precise time within which notice must be served and (b) make plain by express words that, unless notice is served within that time, the right or remedy in question will be lost. Wording that merely requires notice to be given, without specifying the consequences of failure, is unlikely to be construed as a condition precedent.
The content of the notice also matters. Most contracts require the notice to identify the delay event, the date on which the contractor became aware of it, and the contractor's belief that it is or will be entitled to an extension of time and/or additional payment. Some contracts require detailed particulars to be provided within a further defined period — often 42 days under FIDIC. A bare reference to a problem on site, buried in routine correspondence, will rarely satisfy a properly drafted notice provision. The notice should be a separate, clearly headed document that unmistakably puts the employer on notice that a claim is being made.
In the UAE specifically, the position on conditions precedent is nuanced. UAE law contains a doctrine of good faith (Article 246 of the Civil Code) and a general principle that a party should not be permitted to take advantage of its own wrong. There is some scholarly and arbitral debate about whether a strict application of a condition precedent could be regarded as contrary to good faith, particularly where the employer was clearly aware of the delay event in real time and suffered no prejudice from the late notice. However, the prevailing view in Middle Eastern arbitration is that condition precedent provisions in clearly drafted FIDIC-based contracts will be enforced according to their terms, subject only to narrow exceptions.
From a contractor's perspective, the practical implication is straightforward: notify everything, notify it early, and notify it in writing. A culture of contemporaneous notification — supported by clear internal procedures, training of site staff, and a register of notices issued and outstanding — is one of the most cost-effective forms of risk management available to a contractor. The cost of issuing a notice that turns out not to be needed is trivial compared with the cost of losing a meritorious claim because of a missed notice deadline.
From an employer's perspective, notice provisions are an important commercial tool. They allow the employer to be informed of potential claims while the relevant facts are still fresh and while there may still be opportunities to mitigate the impact of the delay event. An employer faced with a late or non-compliant notice is generally entitled to insist on the terms of the contract, but should take care not to engage in conduct (for example, processing the claim on its merits without reservation) that could amount to a waiver of the notice requirement.
At Construction Expert Witness, we regularly assist parties in analysing the adequacy of notices given on Middle Eastern construction projects, the timeliness of those notices, and the consequences of any non-compliance. Our delay experts approach these questions with both technical rigour and commercial pragmatism — recognising that the answer to a notice question can determine the outcome of an entire extension of time claim.