NEWSLETTER-2019-metin

82 NEWSLETTER 2019 The advantage of this clause is that, the Employer’s damage is calculated based on the number of days the project was delayed. At this point, the Employer is not obliged to establish that the Contractor is at fault. Performance Damages The control of the project is in the hands of the Contractor and the Contractor is under an obligation to deliver the project in accordance with the specifications provided by the Employer. The Contractor provides guaranteed standards and performance and should adhere to these. Whether the Contractor has provided a plant that complies with the specifications will be determined following certain tests. Where the plant does not perform according to these standards, (even after the Contractor is afforded an opportunity to make good the non- performance) then performance damages become payable. Again, these damages may be in the form of liquidated damages. In the Silver Book, non-performance damages are stipulated in Clause 12.4 (Fail - ure to Pass Tests after Completion). Termination Termination is perhaps the most powerful remedy that the Em- ployer has against a Contractor 4 . The relevant clause that sets out the Employer’s right to Termination is Clause 15 (Termination by Employe) which lists the circumstances where the Employer will be entitled to terminate the Contract. This clause foresees that a 14 days’ notice should be given to the Contractor. However, in certain circum- stances the Employer may terminate the contract immediately. The Employer also has a right to terminate the contract at its con- venience pursuant to Clause 15.5 (Employer’ Entitlement to Termina- tion) . According to this provision, the Employer shall not terminate the Contract under this Sub-Clause in order to execute the Works for himself or to arrange for the Works to be executed by another contrac- tor. 4 Bremen, James / Grass, Mark : Employer’s Claimants and Remedies in the Guide to Construction Arbitration, https://globalarbitrationreview.com/chap- ter/1145218/employers-claims-and-remedies (Access date: October 2019).