FIDIC / Legal Reference: FIDIC Red Book Clause 3.5 (1999) / Clause 3.7 (2017)
A formal decision issued by the Engineer on a claim or dispute submitted by either the contractor or employer. Under FIDIC 1999, the Engineer is required to act fairly and impartially between the parties when making a determination — a role that is frequently contested in practice.
What it means in practice
When a contractor submits a claim under Clause 20, the Engineer must respond with a determination. Under Clause 3.5 of the 1999 Red Book, the Engineer must consult with both parties and then make a fair determination. If the Engineer fails to respond within 42 days of the claim, the claim is deemed rejected — triggering the contractor’s right to refer the matter to the DAB.
The 2017 edition renamed the process under Clause 3.7 and tightened the Engineer’s obligation to act neutrally, acknowledging criticism that engineers employed by the employer cannot realistically act impartially. The 2017 edition also introduces a deemed agreement mechanism where no response within the response period is treated as rejection.
Where disputes arise
The dual role of the Engineer — employed and paid by the employer while required to act impartially — is a persistent source of dispute. Contractors frequently challenge determinations as biased or inadequately reasoned. Employers sometimes argue that the Engineer’s determination is final if not challenged within the DAB referral period.
UAE Context
In UAE-seated arbitrations, Engineer’s determinations are treated as interim decisions pending DAB or arbitral review. The Engineer’s role under UAE-governed FIDIC contracts is interpreted consistently with common law principles of impartiality.
Related terms
Challenging an Engineer’s determination or defending one in arbitration requires specialist FIDIC expertise. e-Basel provides expert witness and claims advisory services across UAE construction disputes.
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