Académique Documents
Professionnel Documents
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Sarwono Hardjomuljadi
Dr, Ir, MSC (Civ), MSBA (Bus), MH (Law), MDBF (ADR), ACIArb (Arb), ACPE(Eng).
FIDIC Affiliate Member , FIDIC Accredited Trainer, FIDIC Adjudicator
DRBF Country Representative for Indonesia
Vice Chairman, Indonesia National Board for Construction Services Development
sarwonohm2@yahoo.co.id & info@sarwonohm.com
www.sarwonohm.com
Elizabeth A Martin and Jonathan Law (2006): Oxford Dictionary of Law, Oxford
University Press
It was even more strongly put in the judgement by Sir Gorell Barnes in
1907 when he said
What a man intends and the expression of his intention are two
different things. He is bound and those who take after him are bound by
his expressed intention. If that expressed intention is unfortunately
different from what he really desires, so much the worse for those who
wish the actual intention to prevail.
[1]
FIDIC (2006), General Condirtions of Contract for Construction, Terjemahan Sarwono Hardjomuljadi et al dengan lisensi dari FIDIC, 2008
D05 0.740741
A12 0.722222
D04 0.716049
A11 0.709877
Sarwono Hardjomuljadi
Faktor 1.1
Constructive Change Faktor 2.1 Oral
Order Change Order by
Employer
Faktor 1.2
Variation Order
Faktor 2. 2
Possession of Site
and Availability
Faktor 1.3 : Inadequate
site investigation KLAIM
Jika kontraktor menang, pengguna jasa harus mengeluarkan biaya ganti rugi
kepada kontraktor, sbaliknya jika pengguna jasa yang menang maka
pengguna jasa tetap harus membayar biaya dari sengketa yang terjadi,
karena terjadinya kemungkinan kualitas yang jelak dan/atau terjadinya
keterlambatan penyelesaian pekerjaan yang pada akhirnya mengakibatkan
terlambatnya revenue yang diharapkan dari pengoperasian asset tersebut.I
Question:
Could it be considered as an Unforeseeable Physical Condition ?
May the contractor submit a claim for this condition?
..
The Employer shall give the Contractor right of access to, and possession of, all parts of the Site
within the time (or times) stated in the Contract Data
If no such time is stated in the Contract Data, the Employer shall give the Contractor right of
access to, and possession of, the Site within such times as required to enable the Contractor to
proceed without disruption in accordance with the programme submitted under Sub-Clause 8.3
[Programme]. This Sub-Clause 2.1. is the most often Sub-Clause used by the contractor as the
basis of their claims.
The Employer shall give the Contractor right of access to, and possession of, all parts of the Site
within the time (or times) stated in the Contract Data, should be carefully interpreted because it
may be interpreted as the whole Site within a specific time mentioned in the contract data and/or
in the tender proposal.
The second paragraph of Sub-Clause 8.3 mentions about the time and disruption and also
that The Contractor shall submit a detailed time programme to the Engineer within 28 days after
receiving the notice under Sub-Clause 8.1 [Commencement of Works]. It means that the action
in the Sub-Clause 8.3. is done after the Sub-Clause 8.1. has been fulfilled. There are four
precedent conditions to be fulfilled before the issuance of the instruction on Commencement of
Works.
Sub-Clause 1.9 Delayed Drawings or
Instructions
The Contractor shall give notice to the Engineer whenever the Works are
likely to be delayed or disrupted if any necessary drawing or instruction is
not issued to the Contractor within a particular time, which shall be
reasonable
Engineer
response
Article 1 (10)
Alternative Dispute Resolution (or ADR) shall mean a mechanism for the
resolution of disputes or differences of opinion through procedures agreed upon
by the parties, i.e. resolution outside the courts by consultation, negotiation,
mediation, conciliation, or expert assessment.
DISPUTES
LITIGATIO
ADR N
by negotiation by conciliation
by arbitration
by cosultation by mediation by expert assesment
assisted
by mediation by conciliation by expert by arbitration
assesor
INDONESIAN LAW No 18/
1999
Act No 29 Year 2000
84 days
(Clause 20.4 Para
4)
Agree
Decisio d
Final
n and
binding
28 days Disagree 28 days
(Clause 20.4 Para 5) d (Clause 20.4 Para 5)
Yes
Notice of
Dissatisficatio Amicable
n to other Setlemen
Party t
56 days No
(Clause 20.5 Para 1)
Commence
of Arbitration
Law No 30
Year 1999 FIDIC GCC
High Court Art 72 Clause 20
District Court
District Court District Court
MEDIATION
Arbitration Arbitration
CONSULTATION
NEGOTIATION
Decision
CONCILLIATION
by the
Dispute
Dispute
Board
Board
EXPERT ASSESMENT Parties
COST
TIME
CERTAINTY
RELATIONSHIP
Based on the questionnaire distributed to 25 Employer Staff, 15 Engineer Staff and 25 Contractor Staff
Sarwono Hardjomuljadi
Dr, Ir, MSC, MSBA, MH, MDBF, ACIArb, ACPE.
FIDIC International Accredited Trainer
FIDIC Approved Adjudicator
Country Representative of Dispute Resolutuion Board Foundation
National Board for Construction Services Development