Arbitration Update - The new FIDIC certifications: will they pass the test?
Thursday 24 June 2021
Gabriel Mulero Clas
Corbett & Co International Construction Lawyers, London
In March 2020, the International Federation of Consulting Engineers (FIDIC) launched its new venture FIDIC Credentialing Ltd (FCL) tasked with rolling out certification programmes for industry professionals.1 While, at first glance, some may view it as an overambitious money-making enterprise, it has the potential to help with some very real problems with the current use of FIDIC forms. This article mainly focuses on one of these programmes to ascertain whether it will address these problems.
The stories about seemingly obvious and therefore very dispiriting misapplications of FIDIC contracts in the field are all too common. Even when governed by the same law, the inconsistent interpretation of some of the better known FIDIC clauses is at times too unpredictable to truly guarantee the level of certainty employers and contractors expect. With the anticipated increase in the use of FIDIC forms worldwide, particularly the 2017 editions by multilateral banks, the demand for professionals whose standardised knowledge of the FIDIC suite will increase, which would promote certainty.
In an attempt to bridge this gap, the FCL introduces five certification programmes (with more potentially to come), all in their early stages.2 Two of these would be of interest to any relevant industry professional, including lawyers: the Certified Adjudicator and the Certified Trainer. The other three seem suited to engineers, programme managers and other such professionals: the Certified Contract Manager, the Certified Consulting Engineer and the Certified Future Leader. The Certified Adjudicator programme seems ahead of the pack in its development, with legacy members of the FIDIC President’s List of Approved Dispute Adjudicators currently receiving training to certify into the new programme. It should be available to new candidates later in 2021.3 The other programmes are following close behind with certain application details still outstanding for each, although they are also all promised to be available later in 2021.4
Fortunately, the people behind these programmes at every level are all of the highest calibre.5 The Management Board is headed by Sir Vivian Ramsey, the Certification Board is headed by Professor John Uff CBE QC and the Operations Team is led by Dr Nelson Ogunshakin (FIDIC CEO) and Thanos Totsikas (General Manager of Credentialing). In all, the 26 people directly involved feature a robust set of experiences and backgrounds, which is encouraging.
The Certified Adjudicator programme is certainly a welcome solution, considering how stale the FIDIC President’s List has become since its last assessment in 2015. As of March 2020, the List included a total of just 60 names from 19 countries6 of which, for example, only four are women, one is black, one is Latin American and a mere 14 are identified as living outside of Europe.7 The Certified Adjudicator programme should therefore be a resounding success insofar as diversity is concerned if it results in a more inclusive President’s List with members from a wider variety of countries and backgrounds.
However, with the promise of an expanded list of adjudicators, the FCL should be careful not to dilute too much the quality of the membership, which is currently quite high. The certification and recertification processes,8 which the FCL will implement (and for which they aim to receive International Organization for Standardization [ISO] accreditation),9 seem especially robust, but only time will tell whether quality will be maintained at a desirable level.
On prerequisites alone, the bar is set quite high, including, in summary: a relevant professional qualification; ten years of industry experience; five years of senior level experience in construction disputes; understanding of the FIDIC forms and documents; and attendance at a training course. There is also a list of competences and other requirements, such as letters from referees in the industry.
In addition (and most notably), there will be a multiple-choice test and a two-day assessment, each designed to test FIDIC, construction law and dispute board knowledge, drafting and decision-making skills, ethical standards, management of meetings, hearings and site visits, and more. The two-day assessment will include ‘overnight written assignments based on real dispute scenarios, role plays, award writing and essay style assignments.’10 It will certainly be no easy task to reach the FIDIC President’s List.
Once on the List, each member will have to renew their certification every year, requiring five days in FIDIC dispute resolution cases and eight hours of professional development. Each of the other programmes have, to varying degrees of similarity, their own testing and renewal schemes.11 At the head of these, a Professional Code of Conduct Committee will investigate and assess complaints regarding anyone certified in any of the programmes.12
Despite the reassurance that this level of quality control should give FIDIC contracting parties, one aspect of the process puts the lack of diversity issue in question. There is an initial investment of CHF 2,100 (approx. US$2,280) on application and certification fees alone, which may represent a significant barrier to entry to many potential candidates in emerging markets. Then, there will be a yearly recertification fee of CHF 500, which should more than cover the cost of checking that a certified adjudicator’s yearly paperwork is in order. Meanwhile, the fees for the Certified Trainer programme are currently indicated, albeit subject to confirmation, as CHF 2,100 for application and certification, CHF 250 for yearly renewal and CHF 1,500 for recertification every three years.13 Thirty per cent of the current FIDIC President’s List members are also on the current FIDIC Trainers list.14 Therefore, those who aspire for both certifications, which judging from the current spread are not too few in number, will have to spend CHF 4,200 just to start and then CHF 1,250 per year on average. With such pricing strategies, the certified adjudicators’ and trainers’ lists may perhaps not expand and diversify as quickly and as proportionately as one would hope.
At a virtual town hall meeting held by the FIDIC and the FCL in February 2021, the question arose of a discount for young engineers or engineers from emerging markets.15 Anthony Barry (FIDIC President-Elect and the FCL Management Board member) gave assurances that the FCL ‘will try to offer assessments […] as close in cost to […] what is locally economically affordable’,16 and that the FCL will not be ‘charging so much money for a credential that only those in say the top 20 economies in the world can afford it. That would not be right and that would be counter to FIDIC’s objectives.’17 Dr Ogunshakin added that the Certification Board were in discussions to come up with a recommendation.18 Hopefully, the recommendation will cover both certification and renewal fees and every one of the certification programmes.
Although training and certification will not eliminate the risk of misuse of FIDIC contracts, it should hopefully, at very least, weed out the slowest in the pack and raise the bar of the minimum requirements to some level. There is a certain degree of skill required for adjudicators and trainers, for example, that a certification programme is simply not equipped to guarantee. Ensuring wisdom, impartiality and proper experience in adjudicators and the ability to communicate and teach in trainers would require more than a standardised test. Comprehensive monitoring and feedback may be needed to maintain the required standard, but a considerably larger number of resources would be necessary for such a campaign. All in all, some work remains outstanding for the FIDIC and the FCL and one can only wish them the success that the industry needs from them.
Notes
1 FIDIC CEO email to FIDIC members via fidic@fidic.org dated 4 March 2021. See also the FCL’s website at https://fcl.fidic.org, accessed 25 March 2021.
2 Programmes, FIDIC, see https://fcl.fidic.org/programmes, accessed 25 March 2021.
3 Adjudicator certification programme, FIDIC, see https://fcl.fidic.org/our-programmes/adjudicators, accessed 29 March 2021
(click on ‘Dates’ on this webpage).
4 Certified Trainer Programme, FIDIC, see https://fcl.fidic.org/our-programmes/trainers; Contract Manager Programme, FIDIC, see https://fcl.fidic.org/our-programmes/contract-managers, Certified Consulting Engineer Programme, FIDIC, https://fcl.fidic.org/our-programmes/certified-engineers; and Certified Consulting Practitioner certificate, FIDIC, https://fcl.fidic.org/our-programmes/future-leaders, accessed 29 March 2021 (click on ‘Application requirements’ and ‘Dates’ on these webpages).
5 Governance, FIDIC, see https://fcl.fidic.org/governance; About us, FIDIC, see https://fcl.fidic.org/about-us; and, ‘New era for certification and professional development as FIDIC Credentialing is launched’, FIDIC News, 2 March 2021, see https://www.fidic.org/node/32516 accessed 25 March 2021.
6 FCL town hall - recording, FIDIC Digital, 1 March 2021, see https://vimeo.com/518039034#t=16m16s, accessed 25 March 2021.
7 President’s List of Approved Dispute Adjudicators. FIDIC, see https://fidic.org/president-list, accessed 25 March 2021.
8 Adjudicator certification programme, FIDIC, see https://fcl.fidic.org/our-programmes/adjudicators, accessed 25 March 2021 (click on ‘Application requirements’, ‘Fees’, ‘Assessment details’ and ‘Dates’ on this webpage for details on information in the following four paras).
9 FAQs, FIDIC, see https://fcl.fidic.org/faqs, accessed 25 March 2021 (click on ‘Are the certification programmes accredited?’ on this webpage).
10 Adjudicator certification programme, FIDIC, see https://fcl.fidic.org/our-programmes/adjudicators, accessed 25 March 2021 (click on ‘Assessment details’ on this webpage).
11 Certified Trainer Programme, FIDIC, see https://fcl.fidic.org/our-programmes/trainers; Contract Manager Programme, FIDIC, see https://fcl.fidic.org/our-programmes/contract-managers; Certified Consulting Engineer. FIDIC, see https://fcl.fidic.org/our-programmes/certified-engineers; and Certified Consulting Practitioner certificate. FIDIC, see https://fcl.fidic.org/our-programmes/future-leaders, accessed 31 March 2021 (click on ‘Application requirements’ and ‘Assessment details’ on these webpages).
12 Governance, FIDIC, see https://fcl.fidic.org/governance, accessed 25 March 2021.
13 Certified Trainer Programme, FIDIC, see https://fcl.fidic.org/our-programmes/trainers, accessed 29 March 2021 (click on ‘Fees’ on this webpage).
14 President’s List of Approved Dispute Adjudicators. FIDIC, see https://fidic.org/president-list; and Trainer’s List, see https://fidic.org/trainers-list, accessed 29 March 2021.
15 FCL town hall - recording, FIDIC Digital, 1 March 2021, see https://vimeo.com/518039034#t=1h13m24s accessed 25 March 2021.
16 FCL town hall - recording, FIDIC Digital, 1 March 2021, see https://vimeo.com/518039034#t=1h14m51s accessed 25 March 2021.
17 FCL town hall - recording, FIDIC Digital, 1 March 2021, see https://vimeo.com/518039034#t=1h15m10s accessed 25 March 2021.
18 FCL town hall - recording, FIDIC Digital, 1 March 2021, see https://vimeo.com/518039034#t=1h15m24s accessed 25 March 2021.