NEC3’s opening clause says the parties must act in a spirit of mutual trust and co-operation. If, however, a contract needs co-operation to make it work, an express obligation may not be necessary, because the law may imply one. So where the appointment of the Engineer (under a fourth edition of the FIDIC Red Book) expired, the Engineer refused to give a decision under clause 67 and no new Engineer was appointed, did the contractor have to wait until the end of the contractual, postdecision, 84 day period before starting an arbitration?

No, said the court. The case law and construction textbooks were clear, that there is an implied duty of co-operation, in such a case, to do whatever may be necessary to enable the other party to perform their part of the contract, e.g. to reappoint the Engineer or appoint a new one. An alternative approach was to say that a person cannot take advantage of the nonfulfilment of a condition, the performance of which they themselves have hindered (e.g. by preventing the Engineer from issuing a decision). The Employer could not therefore rely on the 84 day period as a condition precedent to the contractor going to arbitration.

Al-Waddan Hotel Ltd v Man Enterprise SAL (Offshore) [2014] EWHC 4796