Engineer’s Determination under FIDIC Red Book 2017: Navigating Ethical Tensions between Neutrality and Loyalty

Subclause 3.7 of the FIDIC Red Book 2017 directs the engineer to act neutrally when determining claims, while Subclause 3.1 elsewhere deems the engineer the employer’s agent. This institutional duality generates ethical and legal tensions that affect fairness, cost, schedule, and enforceability. The paper examines that tension through doctrinal analysis; a comparative review of FIDIC 1999, FIDIC 2017, and new engineering contract (NEC) [with targeted reference to joint contracts tribunal (JCT) certifier jurisprudence and selected civil-law good-faith duties]; and a normative-ethics synthesis drawing on deontology, consequentialism, and virtue ethics. The 2017 neutrality innovation narrows but does not eliminate the agency/adjudicator conflict. Tribunals and boards expect even-handed consultation, reasoned determinations, and disciplined use of notice mechanisms (including finality absent a valid notice of dissatisfaction, NOD), yet the undefined nature of neutrality and the engineer’s economic ties to the employer preserve residual bias risks. Professional codes (FIDIC/ICE/RICS) endorse impartial conduct but lack subclause-specific operational tools; digital record-keeping and smart-contract concepts can reinforce transparency without substituting for human judgment. The paper offers a clause-specific legal definition of neutrality under Subclause 3.7; consolidates FIDIC/NEC contrasts; translates ethical theory into practitioner instruments; and proposes actionable devices an engineer’s declaration of impartiality, a 42/42/28 decision flow with a reasons matrix, and a conflict-check/recusal protocol alongside drafting guidance for particular conditions and professional codes. Adopting this toolkit should reduce disputes, accelerate payment and time decisions, and enhance the integrity and enforceability of engineer determinations.