SIGNIFICANT CASE LAW ON THE FIDIC FORMS OF CONTRACT - Development of a FIDIC case law?

By Rechtsanwalt Dr. Götz-Sebastian Hök

The dispute clauses under FIDIC forms of Contract 1957 - 1999 edition (Clause 67 FIDIC, 1 Edition, Sub-Clauses 20.2 et seq.
FIDIC 1999 edition) provide for first dispute adjudication (until 1999 the Engineer had authority to give a decision) and
second arbitration under the ICC rules. This approach is also known as a multi-tier dispute clause. It keeps every contract
detail confidential and should avoid disclosure of Details unless both parties agree otherwise.

I. Court Decisions (worldwide) on FIDIC

Thus, court decisions on the interpretation and construction of FIDIC clauses from state courts are extremely rare. All the
more so since the little amount of court authorities dealing with FIDIC clauses is important and at least very helpful. Below
some of those decisions are reported. These decisions have dealt with:

Sub-Clause 2.5 FIDIC 1999 edition

Sub-Clause 20.1 FIDIC 1999 edition
Sub-Clauses 15.1 and 15.2 FIDIC 1999 edition
Sub-Clause 53.4 FIDIC 1987 edition
Sub-Clause 59.1 FIDIC 1987 edition
Clause 67 FIDIC 1987 edition
Sub-Clauses 20.4, 20.6, 20.7 FIDIC 1999 edition
Clause 14 FIDIC 1999 edition (Silver Book)
Sub-Clause 20.4 FIDIC 1999 edition
Sub-Clauses 20.6, 20.7 and 20.8 FIDIC 1999 edition
Sub-Clause 20.9 FIDIC Gold Book, 2008 edition
It is worth to note that the reported decisions have been made either in common law or in civil law jurisdictions. The
reported cases are from Botswana, England, Falklands Islands, Kenya, Philippines, Singapore, South Africa, Trinidad and
Tobago, Victoria (Australia) involving projects in Botswana, Brazil, Falklands Islands, Gibraltar, Indonesia, Kenya, Namibia,
Philippines, South Africa, Trinidad and Tobago.

1. The case of Obrascon Huarte Lain SA v. Attorney-General for Gibraltar decided by the UK Technology and Construction
Court on 16 April 2014, gives attention to a substantial contract for infrastructure works in Gibraltar carried out under the
FIDIC Yellow Book 1999 edition. Anyone seeking a full narrative history of events may read the comprehensive judgment
of the Justice Akenhead [2014] EWHC 1028 (TCC). In a subsequent decision given on 9 July 2015 the English Court of Appeal
has unanimously dismissed the appeal by Obrascon against the decision of Justice Akenhead (Obrascon Huarte Lain SA v
HM Attorney General for Gibraltar [2015] EWCA Civ 712 (09 July 2015).

The decisions highlight two major aspects under FIDIC forms of Contract. (1) The Courts discussed the rules of the game
as to claims. (2) The Court took the opportunity to examine the meaning of the termination provisions in Clause 15.

It is commonplace that Sub-Clause 20.1 establishes a notice giving requirement which is a condition precedent of a
successful claim under FIDIC. The court considered that this condition precedent in Sub-Clause 20.1 bites once there is
either awareness by the contractor or the means of knowledge or awareness of the event or circumstances justifying a
claim. In its view the Sub-Clause is not to be construed strictly against the contractor but rather "reasonably broadly",
given its serious effect on any potential claim.
Further, the court found that that there was no particular form called for in Sub-Clause 20.1, but only that the notice
should be

in writing
describing the event or circumstances relied on and
notify a claim.
The English TCC held on 16 April 2014 that there is no particular form called for in Sub-Clause 20.1 FIDIC 1999 Edition and
one should construe it as permitting any claim provided that it is made by notice in writing to the Engineer, that the notice
describes the event or circumstance relied on and that the notice is intended to notify a claim for extension (or for
additional payment or both) under the Contract or in connection with it. It must be recognisable as a "claim".

The onus of proof is on the employer to establish that the notice was given too late.

In the circumstances, the court held that one of the contractor's claims (in relation to adverse weather) was time barred
in that the delay for which the Contractor sought relief had occurred more than 28 days before the relevant notice was
given.

A second part of the decision elaborates how the termination Clause 15 should be construed. Sub-Clause 15.2 provides
that the Employer is either

entitled to terminate the Contract if the Contractor fails to comply with an Engineer´s notice under Sub-Clause 15.1 to
make good his failure to carry out any obligation under the contract, or
entitled to terminate the Contract if the Contractor plainly demonstrates an intention not to continue the performance of
his obligations under the contract, or without reasonable excuse fails to proceed with the works in accordance with clause
8, that is to say with due expedition and without delay,
except that termination cannot legally occur if the contractor had been prevented or hindered by the employer from
remedying the failure within the specified time, since a party cannot rely on its own wrong.

In the view of the Court Clause 15 must relate to more than insignificant contractual failures by the Contractor and those
which are actual rather than prospective. It added that the period for a notice to comply must be reasonable in all the
circumstances.

In the circumstances, the court decided that the Employer was entitled to terminate the Contract.

2. The judgment Attorney General for the Falkland Islands v. Gordon Forbes Construction (Falklands) Limited, rendered by
the Falkland Islands Supreme Court on 14 March 2003, gives an account of building works in the Falkland Islands
performed under the FIDIC Red Book, 4 edition, 1987.

The decision is a good authority for the Interpretation of the term contemporary records and the consequences of any
failure to comply with the duty to Keep such records. Contemporary records in Clause 53.4 of the FIDIC Conditions, 4th
Edition (1987), means original or primary documents, or copies thereof, produced or prepared at or about the time giving
rise to the claim, whether by or for the Contractor or Employer.

A second decision as to the construction of the similar Sub-Clause 20.1 FIDIC 1999 edition is available form Trinidad and
Tobago. In National Insurance Property Development Company Ltd (NIPD) v. NH International (Caribbean) Ltd (NHIC) the
High Court of Trinidad and Tobago held on 21 October 2009 that the record keeping requirement under Sub-Clause 20.1
FIDIC 1999 Edition seeks to ensure that the Engineer has the ability to make a proper investigation of the claim by placing
the responsibility for such record keeping on the Contractor as the person making the claim. The requirement here
therefore does not address the making of the claim but rather the substantiation of the claim.
In the view of the Court a failure to comply with the record keeping reuiqrement, that is, (a) the keeping of contemporary
records; (b) allowing inspection of those records by the Engineer and (c) providing a detailed claim at least 14 days after
the initial notice is only to be taken into consideration insofar as it may have prejudiced a proper investigation of the claim.
In other words such breaches would only be relevant at the stage of an assessment of the claim.

3. The case PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation (Indonesia) prompted four decisions by the
Singaporean Courts (2010, 2011, 2014, 2015). The case relates to a contract for the design, the procurement, the
installation, testing and pre-commissioning of a pipeline and an optical fibre cable in Indonesia carried out under the FIDIC
Red Book, 1999 edition. A dispute arose between the parties over certain variation order proposals and requests for
payments submitted by CRW.

The parties referred the dispute to the DAB which had been appointed in accordance with the Contract. The DAB heard
the dispute and made several decisions, all of which were accepted, save for one, which required PGN to pay CRW the
sum of US$ 17,298,834.57 in respect of this DAB decision (n° 3) dated 25 November 2008 PGN submitted a Notice of
Dissatisfaction ("NOD") and refused to pay the relevant amount.

CRW subsequently brought a first arbitration against PGN in an attempt to enforce the DAB decision. The arbitral tribunal
comprising three arbitrators, gave a majority final award holding that the DAB decision in question was binding and that
PGN had an obligation to make immediate payment for the sum of US$17,298,834.57 to CRW.

Still the matter remained unresolved. Thus, CRW filed an application to the High Court of Singapore in order to register
the award as a judgment in Singapore. In response, PGN applied to the Court to set aside the registration order. Moreover,
PGN also applied to Court to set aside the arbitral award pursuant to Section 24 of the Singapore International Arbitration
Act and Article 34(2) of the UNCITRAL Model Law.

The High Court found on in favour of PGN and set aside the ICC award which had been obtained by CRW under Article
34(2)(a)(iii) of the UNCITRAL Model Law (PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation [2010] SGHC
202).

Upon appeal of CRW the Court of Appeal of Singapore confirmed the decision given by the High Court (CRW Joint
Operation v. PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 33).

In 2011 CRW started a second arbitration by adjusting its approach specifically to meet PGN’s earlier argument. It did so
by placing before the 2011 arbitral tribunal both, the primary dispute and the secondary dispute. In response, PGN
adjusted its argument to meet CRW’s new approach. This time, PGN argued that the parties’ arbitration agreement and
Singapore’s international arbitration legislation do not permit an arbitral tribunal to compel PGN to comply promptly with
the DAB decision unless the same arbitral tribunal– in the same award and not merely in the same arbitration – also hears
and determines the primary dispute on the merits.

Again, also the 2011 tribunal has, by a majority decision, rejected PGN’s argument. It therefore issued an interim or partial
award compelling PGN to comply with the DAB decision.

Again PGN applies to set aside the (new) tribunal’s interim or partial award and, with it, the order permitting CRW to
enforce that award.

This time the High Court Singapore granted relief to CRW and dismissed PGN´s application to set the (second) ICC award
aside (PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (Indonesia) and another matter [2014] SGHC 146).
By majority decision the Court of Appeal upheld this High Court decision (PT Perusahaan Gas Negara (Persero) TBK v CRW
Joint Operation [2015] SGCA 30).

The first PGN case provides guidance on the distinction between Sub-Clause 20.6 and Sub-Clause 20.7. Whether a DAB
decision should be enforced by means of arbitration under Sub-Clause 20.6 or Sub-Clause 20.7 currently depends on
whether a valid Notice of Dissatisfaction had been submitted and consequently, whether the DAB decision is as referred
to under FIDIC "final and binding" (which means that no NOD had been submitted) or merely "binding" (which means that
a valid NOD had been submitted).

The second PGN case demonstrates that properly applied the FIDIC form of Contract does not leave claimants alone as it
had been argued sometimes. Actually there is not really a gap. Rather it was always and is still possible to enforce a binding
DAB decision which has not yet become final through arbitration by means of an interim award (see ICC Award N° 10619).
The High Court Singapore has clearly demonstrated on how a claimant should proceed in order to enforce a merely binding
DAB decision (PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (Indonesia) and another matter [2014]
SGHC 146). The Court of Appeal confirmed that on no basis was the Interim Award as given a provisional award. On the
contrary, it was a final determination of whether PGN had an immediate and enforceable contractual obligation to comply
with DAB decision No 3 even though it had issued an NOD in respect of that decision.

4. In the unreported South African decision of Esor Africa (Pty) Ltd/Frankl Africa (Pty) Ltd JV and Bombela Civils JV (Pty)
Ltd, SGHC case no. 12/7442, a dispute arose in out of contract for certain piling and lateral support work on the Gautrain
rapid rail link Project to be executed by Esor Africa (Pty) Ltd / Franki Africa (Pty) Ltd JV (the Contractor). The dispute was
referred to a single member DAB in terms of Sub-Clause 20.4 of the FIDIC Conditions of Contract 1999 (First Edition). The
DAB gave its decision which was in favour of the Contractor. The Employer refused to make payment in terms of the
decision relying, inter alia, on the fact that it had given a notice of dissatisfaction. Subsequently the Contractor approached
the Court in order to seek for an order compelling compliance with the decision.

The matter came before Spilg J who observed that he found the wording of the relevant contractual provisions to be clear
and that their effect is that whilst the DAB decision is not final

“the obligation to make payment or otherwise perform under it is…

In granting an order for specific performance Spilg J concluded that

“[I]n order to give effect to the DAB provisions of the contract the respondent cannot withhold payment of the amount
determined by the adjudicator, and in my view is precluded by the terms of the provisions of clause 20 (and in particular
clauses 20.4 and 20.6) from doing so pending the outcome of the Arbitration".

The Court found the key to comprehending the intention and purpose of the DAB process to be the fact that neither
payment nor performance can be withheld when the parties are in dispute:

“the DAB process ensures that the quid pro quo for continued performance of the contractor’s obligations even if
dissatisfied with the DAB decision which it is required to give effect to is the employer’s obligation to make payment in
terms of a DAB decision and that there will be a final reconciliation should either party be dissatisfied with the DAB
decision…”

The court further held that the respondent was not entitled to withhold payment of the amount determined by the
adjudicator and that he
 “is precluded by the terms of the provisions of clause 20 (and in particular clauses 20.4 and 20.6 from doing so pending
the outcome of the Arbitration.”

Esor Africa (Pty) Ltd / Frankl Africa (Pty) Ltd Joint Venture v. Bombela Civils Joint Venture (Pty) Ltd (38844/11) [2012]
ZAGPJHC 54 (decided on 11 April 2012).

5. The case of Tubular Holdings (Pty) Ltd v. DBT Technologies (Pty) Ltd decided by the South Gauteng High Court
(Johannesburg) on 3 May 2013 concerned a similar case like the above. Once again a DAB had made a decision pursuant
to Sub-Clause 20.4 of FIDIC 1999 edition which did not become final since one of the parties had expessed its
dissastisfaction with the decision of the Dispute Adjudication Board handed down on 5 December 2012. The Court ordered
that the respondent had to forthwith give effect to the DB decision ([2013] ZAGPJHC 155).

Du Plessis AJ construed Sub-Clause 20.4 FIDIC 1999 edition as follows:

The effect of these provisions is that the decision shall be binding unless and until it has been revised as provided. There
can be no doubt that the binding effect of the decision endures, at least, until it has been so revised. It is clear from the
wording of clause 20.4 that the intention was that a decision is binding on the parties and only loses its binding effect if
and when it is revised. The moment the decision is made the parties are required to “promptly” give effect to it. Given
that a dissatisfied party has 28 days within which to give his notice of dissatisfaction it follows that the requirement to
give prompt effect will precede any notice of dissatisfaction.

It is worth to note that South African Courts seem to continuously enforce merely binding DAB decisions. In a further case
involving a JBCC contract relied on the previous case law in Tabular Holdings and Esor Africa (see Stefanutti Stocks (Pty)
Ltd v. S8 Property (Pty) Ltd (20088/2013) [2013] ZAGPJHC 388 (23 October 2013)).

6. The case Sedgman South Africa (Pty) Ltd & Others v. Discovery Copper Botswana (Pty) Ltd decided by the Queensland
Supreme Court ((2013] QSC 105) on 30 April 2013 related to a contract for a new processing plant in Botswana 80km south
west of the town of Maun carried out under the FIDIC Silver Book, 1999 edition.

The lesson from the Sedgman case is that the FIDIC terms and conditions should be read together with the existing
guidance provided by FIDIC, and against the genesis of the clauses. Further, jurisdictional issues should be dealt with in a
way which gives effect to the Parties’ contractual bargain. Moreover, the Silver Book payment provisions do not need to
be re-interpreted.

7. The case of Hutuma-RSEA Joint Operations, INC., v. Citra Metro Manila Tollways Corporation decided by the Supreme
Court Manila on 24 April 2009, gives attention to a contract for a Skyway in Manila carried out under the FIDIC Silver Book
1999 edition.

The Court held that that the adjudication Sub-Clause 20.4 was not enforceable. It found that

the incorporation of an arbitration clause in the EPCC is sufficient to vest the Construction Industry Arbitration Commission
(CIAC) with jurisdiction over any construction controversy or claim between the parties.
the arbitration clause in the construction contract ipso facto vested the CIAC with jurisdiction and
this rule applies, regardless of whether the parties specifically choose another forum or make reference to another arbitral
body.
Therefore, the Court concluded that since the jurisdiction of CIAC is conferred by law, it cannot be subjected to any
condition; nor can it be waived or diminished by the stipulation, act or omission of the parties, as long as the parties agreed
to submit their construction contract dispute to arbitration, or if there is an arbitration clause in the construction contract.
The parties will not be precluded from electing to submit their dispute to CIAC, because this right has been vested in each
party by law.

8. By contrast Kenyan Courts seem to strictly follow the FIDIC regime. In Midroc Water Drillining Co Ltd v. Cabinet
Secretary, Ministry Of Environment, Water & Natural Resources & 2 others [2013] eKLR the High Court of Kenya at Nairobi
made a decision on 17 December 2013 on a dispute which arose out of a FIDIC 1987 edition contract. The defendant
argued that the suit was premature.

In this regard, the court took the view that Clause 67 of the FIDIC Conditions of Contract, 1987 edition, is any other method
of dispute resolution that is not excluded by Article 159 (2) (c) of the Constitution of Kenya. The said method of dispute
resolution is also envisaged under Section 59 C of the Civil Procedure Act Cap 21 (laws of Kenya) which provides as follows:

“(1) A suit may be referred to any other method of alternative dispute resolution where the parties agree or the court
considers the case suitable for such referral (emphasis mine)

(2) Any other method of alternative dispute resolution shall be governed by such procedure as the parties themselves
agree to or as the Court may, in its discretion order.”

It then continued to say:

..., what cuts across all the editions of the FIDIC Conditions of Contract is that the dispute between the Employer and the
Contractor must be referred to the Engineer when a dispute arises in the first instance. The various editions provide for
distinct methods of resolution of the disputes, firstly to the Engineer. If the parties are not satisfied with the decision of
the engineer the matter may proceed for determination by way of amicable settlement and if a party is once again
dissatisfied, the matter may be referred to Dispute Adjudication Boards and finally to arbitration as the last dispute
resolution mechanism therein. The sequence really depends on the edition of the FIDIC Conditions of Contract.

The Court finally made in order to stay and directed the pending proceedings be stayed and that parties commence
settlement of their dispute in accordance with FIDIC Conditions of Contract as calling upon the court to intervene in the
dispute between the plaintiff and the defendants was premature. In the view of the Court parties are at liberty to invoke
the jurisdiction on this court only as has been provided by the Arbitration Act or any other relevant law as they clearly
opted for a mode of settlement of their disputes in other fora other than the court, by their very execution of the FIDIC
conditions of contract.

9. The case Doosan Babcock Ltd v. Comercializadora De Equipos Y Materiales MABE Limitada ([2013] EWHC 3010 (TCC))
decided by the UK Technology and Construction Court on 11 October 2013 involved an application by the claimant for an
interim injunction to restrain the respondent ("MABE") from making demands for payment under two performance
guarantees.

The Contract was for the supply of two boilers for a power plant in Brazil. MABE relied on a provision in the contract which,
it said, permitted it to withhold a Taking-Over Certificate where the unit has been used by the employer only as a
temporary measure. In spite of the fact that the two units had, since they were taken into use, exported more than 7,500
hours of power at various loads to the local grid, MABE maintained that their current use was a temporary measure.

The contract was based on the FIDIC form of contract with some modifications. Sub-Clause 20.2 provided that disputes
shall be adjudicated by a Dispute Adjudication Board ("DAB"). It provided also (by amendment) that the DAB was to be
appointed by the parties within 42 days of the contract Commencement Date, but the Court was told that this had not
happened. The Court then observed that Sub-Clause 20.6 provides that in the case of any dispute in respect of which the
DAB's decision had not become final and binding, the dispute was to be finally settled by international arbitration. In the
case at hands the place of arbitration was stated to be London. By clause 20.8, if no DAB been has been appointed, the
dispute can be referred directly to arbitration.

Sub-Clause 4.2 concerned the Performance Security. Here the entirety of the original wording of the FIDIC form had been
deleted and new wording substituted. Under the wording of the FIDIC standard form the Employer can only make the
claim under the performance guarantees in certain specified situations. Here, by the substituted wording these restrictions
had been removed and so the Employer had an unfettered right to make a demand under the performance guarantees
subject only to their terms. The form of the performance guarantees was provided in a schedule to the contract. There
was a separate performance guarantee for each of the two units.

By the terms of the guarantees the provider of the guarantee undertook to pay MABE:

"… on receipt of your first demand on us in writing stating that [the Claimant] has not performed its obligations in
conformity with the terms of the Contract."

When MABE gave reasons to the Contractor to believe that MABE planned to call the guarantees it applied for an
injunction. It argued that the MABE was in breach of Contract since the Engineer withheld the Taking-Over Certificate
which he was supposed to issue in accordance with Sub-Clause 10.2.

The Court held, that in the circumstances the Claimant was entitled to interim relief, at least for a short period.

10. The matter National Insurance Property Development Company Ltd (NIPD) v. NH International (Caribbean) Ltd (NHIC)
relates to a Contract for the construction of the new Scarborough Hospital in Tobago. NIPD engaged NHIC to construct a
new hospital in Tobago. The contract between the parties incorporated the standard FIDIC General Conditions of Contract
for Construction 1999 (the “FIDIC Red Book, 1999”). A dispute arose as to the proper interpretation of two clauses in the
FIDIC General Conditions of Contract for Construction 1999. The Parties referred the disputes to arvitration in accordance
with the terms of the Contract.

NIPDC and NHIC appealed the arbitrator’s findings as to Sub-Clauses 2.4 and 2.5 of the Red Book respectively. The appeals
proceeded first through the High Court (decided by the Trinidad and Tobago High Court on 14 November 2008) and Court
of Appeal in Trinidad and Tobago and ultimately to the Privy Council in the United Kingdom.

The interesting part of the decisions dealt with the construction of Sub-Clause 2.4. The Sub-Clause reads as follows:

The Employer shall submit, within 28 days after receiving any request from the Contractor, reasonable evidence that
financial arrangements have been made and are being maintained which will enable the Employer to pay the Contract
price (as estimated at that time) in accordance with Clause 14 [Contract Price and Payment]. If the Employer intends to
make any material change to his financial arrangements, the Employer shall give notice to the Contractor with detailed
particulars.

Hence, Sub-Clause 2.4 of the Red Book required NIPD to submit, upon request by NHIC, “reasonable evidence that financial
arrangements have been made and are being maintained which will enable [NIPDC] to pay the Contract Price”. Moreover
Sub-Clause 2.5 provides:

“If the Employer considers himself to be entitled to any payment under any Clause of these Conditions or otherwise in
connection with the Contract … the Employer or the Engineer shall give notice and particulars to the Contractor. …
The Notice shall be given as soon as practicable after the Employer became aware of the event or circumstances giving
rise to the claim. … The particulars shall specify the Clause or other basis of the claim, and shall include substantiation of
the amount and/or extension to which the Employer considers himself to be entitled in connection with the Contract.

The Employer shall only be entitled to set off against or make any deduction from an amount certified in a Payment
Certificate, or to otherwise claim against the Contractor, in accordance with this Sub-Clause.”

On 28 April, 2005, NHIC invoked clause 2.4 and requested the evidence under Sub-Clause 2.4. Having claimed that it had
not received the requested evidence, on the 31st May, 2005 NHIC issued a 21 day notice under clause 16.1 threatening
NIPD to suspend/reduce work. NHIC claimed that it was therefore entitled to reduce its rate of work from the 23rd June,
2005, and did so.

Clause 16 entitled NHIC to suspend work (or reduce the rate of work) under the Contract and to terminate the Contract if
NHIC did not receive the reasonable evidence required by Sub-Clause 2.4 within a specified period of time subject to
certain notice requirements being met. Hence, the question was whether NHIC was entitled to evidence that NIPD had
made and maintained financial arrangements enabling NIPD to pay the Contract Price as estimated at that time.

The initially involved arbitrator had held that such evidence was missing since NIPD omitted to provide NHIC with the
evidence that relevant cabinet approval had been obtained. The arbitrator construed Sub-Clause 2.4 such that Sub-Clause
2.4 did not simply require evidence that the Employer was able to pay, but that financial arrangements had been made
and were being maintained which would enable the Employer to pay. In his view, proper weight had to be given to all the
words which were included in Sub-Clause 2.4. Then, the Arbitrator found that the mere fact that an Employer was wealthy
was inadequate for the purposes of Sub-Clause 2.4. Accordingly, in his view the mere evidence that the Government of
Trinidad and Tobago had very substantial funds did not by itself satisfy Sub-Clause 2.4.

The arbitrator then continued to conclude that emerging from the evidence before him as regards the significance of
Cabinet approval was that (quite properly and for very good public policy reasons), the Government cannot pay large sums
of public money in respect of costs overruns on construction contracts unless Cabinet approval was given in advance, or
perhaps, retrospectively. The issue of Cabinet approval therefore could not be ignored in respect of Sub-Clause 2.4. In the
arbitrator´s view it was at some point an essential element of any arrangement to pay.

The High Court held that NIPD failed to demonstrate that the Arbitrator proceeded on any wrong principle of law or
construction.

The Privy Council partially disagreed with the arbitrator and the Courts in Trinidad and Tobago. While the Privy Council
endorsed the arbitrator’s view of Sub-Clause 2.4 and upheld his finding that NIPD’s failure to provide evidence of Cabinet
approval entitled NHIC to terminate the contract it disagreed with the arbitrator finding with regard to Sub-Clause 2.5. In
the view of the Privy Council Sub-Clause 2.5 does not only prohibit the Employer from setting off any sum against any
amount certified in a Payment Certificate”, and therefore (dissenting from the previous views in arbitration and domestic
litigation) prevents the Employer from exercising his right of set-off in any other way”, and in particular also “against
amounts that are not certified”. The Privy Council held with regard to Sub-Clause 2.5:

"... Its purpose is to ensure that claims which an employer wishes to raise, whether or not they are intended to be relied
on as set-offs or cross-claims, should not be allowed unless they have been the subject of a notice, which must have been
given “as soon as practicable”. If the Employer could rely on claims which were first notified well after that, it is hard to
see what the point of the first two parts of clause 2.5 was meant to be. Further, if an Employer’s claim is allowed to be
made late, there would not appear to be any method by which it could be determined, as the Engineer’s function is linked
to the particulars, which in turn must be contained in a notice, which in turn has to be served “as soon as practicable”.
"… the natural effect of the closing part of clause of 2.5 is that, in order to be valid, any claim by an Employer must comply
with the first two parts of the clause, and that this extends to, but, in the light of the word ‘otherwise’, is not limited to,
set-offs and cross-claims."

Thus, it emerges from the Privy Council decision that Employers are recommended:

to give claim notices promptly

to be accompanied by particulars specifying the basis of the claim
11. In the case Knowman Enterprises (Pty) Ltd v. China Jiangsu International Botswana (Pty) Ltd and Others involving a
subcontract under FIDIC 1987 edition by notice of motion filed in the High Court of Botswana the subcontractor sought
the following Order:

that the Main Contractor be strictly restrained and enjoined itself or through its servants or agents directly or indirectly
from terminating the sub-contract between the parties relating to ... or from taking any action whereby the Subcontratcor
is hindered or disturbed in its functions thereunder pending the final determination of all matters of dispute between the
Subcontractor and the Main Contractor.

The Subcontractor argued that since the Engineer approved the subcontract, the Sub-contractor was a nominated
subcontractor as contemplated by Clause 59.1 FIDIC Red Book 1987, 4th edition of the Contract between the Employer
and the Contractor. The Contractor on the other hand contended that, the the Subcontractor was not a nominated sub-
contractor as contemplated by Clause 59.1 FIDIC 1987 but a mere domestic subcontractor who is governed by the
conditions of the agreement under the subcontract. The Court ordered that the Engineer appeared for the purpose of
clarifying the distinction between a nominated contractor and a domestic contractor.

The Engineer explained that the only purpose for which the Engineer´s consent or approval is required in terms of Clause
4.1 FIDIC 1987, is to ensure that the sub-contractor chosen by the main contractor is competent to do the work. The
Engineer specifically said his consent or approval of a domestic sub-contractor did not elevate such sub-contractor to the
status of a nominated contractor. Moreover the Engineer revealed that if the Subcontractor were a nominated sub-
contractor the termination of the Subcontractor´s contract would not lie within the power of the main contractor but with
the employer and therefore an attempt to terminate by the main contractor would be of no legal consequence.

Held by the High Court of Botswana (at Francistown) on 28 February 2007 (AHFT-000 005 of 2007) that on the balance of
probabilities the Subcontractor was not a nominated sub-contractor as contemplated by Clause 59.1 of the FIDIC Contract.

It should be noted that Clause 59.1 FIDIC 1987 as well as its homologue in Sub-Clause 5.1 FIDIC Red Book 1999 edition do
not establish privity of contract between the employer and the any type of subcontractor. Such effect would require
express wording and in principle a tripartite contract unless the law gives effect to a contract pour autrui (contract for the
benefit of a third party or stipulatio alteri) . Actually the law may give effect to a contract whereunder a third party who is
not a contracting party may enforce the contract. The general rule in Dutch-Roman law was that such stipulations were
not enforceable (Hutchinson/Pretorius, The Law of Contract, 2nd edition, at page 226). However, South African Courts
have shown their willingness to enforce such stipulation pur autrui (cf. Movie Camera Company (PTY) Ltd v. Van Wyk and
Another (8333/2001, 2284/2002) [2002] ZAWCHC 72; Eldacc (Pty) Ltd v. Bidvest Properties (Pty) Ltd (682/10) [2011] ZASCA
144 (26 September 2011)). The authority in respect of subcontracting seems to be the case Lillicrap, Wassenaar and
Partners v. Pilkington Brothers (Pty) Ltd 1985 (1) SA 475 (A) which involved a structural engineer and its liablity as a
subcontractor. Here the Court held that the tripartite relationship between Pilkington (as employer), Salanc (as main
contractor) and Lillicrap (as subcontractor) had its origin in contract. However Pilkington (the employer) had to follow the
contractual chain via Salanc (main Contractor) to Lillicrap (subcontractor).
12. The Swiss Supreme Court (Bundesgericht (German)-Tribunal federal (French)-Tribunale federale (Italian)) has held on
7 July 2014 (file number 4A_124/2014) that as a matter of principle FIDIC dispute adjudication clauses (20.2 to 20.4) are
valid and enforceable. Therefore it concluded that the Parties have to refer the dispute to a DAB before they may involve
an arbitral tribunal. In the view of the Court the mere fact that no Dispute Adjudication Agreement was signed does not
justify the conclusion that there is no DAB in place as referred to in Sub-Clause 20.8 FIDIC 1999. However, in the light of
the specific circumstances it upheld the decision of the Arbitral Tribunal to accept jurisdiction ratione temporis to address
the request which the contractor had actually filed to arbitration.

Actually the impatient and dissatisfied Contractor filed a request for arbitration without having referred the dispute to a
DAB. In his view he was no longer supposed to comply with Sub-Clauses 20.2 et seq. FIDIC since until July 2012, thus after
15 months of exchange of communication between the Parties did not accomplish the appointment of an operational
DAB. Actually, though in July 2012 the Parties were successful in appointing a three member DAB the DAB was not yet
operational in that still no Dispute Adjudication Agreement was signed.

The Supreme Court concluded that the wording in Sub-Clauses 20.2 et seq. do not suggest that the Parties are obliged to
sign a DAA and that the Contractor did not act in bad faith when he referred the dispute to arbitration. Rather it held that
after 15 months of unsuccessful negotiations the Employer was in bad faith to object the arbitral tribunal´s jurisdiction.
Albeit the Court confirmed that Sub-Clauses 20.2 et seq. provide for mandatory adjudication it was of the view that Sub-
Clause 20.8 suggests that exceptions are allowed. In the circumstances it therefore held that the arbitral tribunal had
jurisdiction to decide on the dispute.

From the practical point of view the award provides for guidance as to difficulties which may arise with regard to to the
appointment of DAB mmebers and the execution of the DAA (Dispute Adjudication Agreement). For instance the
Contractor failed for good reasons to mobilize FIDIC for the purpose of establishing the DAA. The FIDIC President is avilable
in accordance with Sub-Clause 20.3 to appoint DAB members. Thereafter it is within the exclusive competence of the
parties and each DAB member to negotiate and agree on terms and conditions of the DAA. Ex parte Agreements may be
admissible to the extent one of the parties transingently fails to cooperate.

13. In the English case of Peterborough City Council v. Enterprise Managed Services Ltd1) the English TCC was involved in
an application by the Defendant (“EMS”) for an order to stay the action brought in the court by the Claimant (“the Council”)
in respect of a dispute arising out of a FIDIC Silver Book contract made between the Council and EMS by which EMS agreed
to design, supply, install, test and commission a 1.5 MW solar energy plant on the roof of a building owned by the Council.
The Conditions of Contract included the regular FIDIC dispute adjudication clause while the Parties substituted arbitration
for litigation.

Actually the claimant commenced court proceedings in the English TCC arguing that it was entitled to in effect opt-out of
the requirement in Sub-Clause 20.2 of the FIDIC Silver Book where it did not wish to have a dispute resolved by the DAB
and to refer the dispute directly to court (which had been chosen by the parties as the final determination procedure,
rather than arbitration).

The Claimant argued that he was allowed to deviate from the FIDIC dispute resolution machinery in relying on Sub-Clause
20.8 which provides that a dispute may be referred directly to arbitration (or, in this case, litigation) in circumstances
where “there is no [DAB] in place, whether by reason of the expiry of the [DAB’s] appointment or otherwise.” In his view
the “or otherwise” part of Sub-Clause 20.8 was applicable. Moreover he relied on the argument that the parties could not
be under a mandatory obligation to achieve the appointment of a DAB and that the phrase “or otherwise” was wide
enough to include a state of affairs where a DAB was not in place because the Dispute Adjudication Agreement had not
been concluded between the parties and the DAB, a position with which the Swiss Supreme Court2) recently concurred.
The TCC held, that the Claimant´s action had to be stayed. Accordingly the Court left the Parties to resolve their dispute
in accordance with the contractual machinery, a position which is perfectly in line with other English case law which
typically upholds contractual Alternative Dispute Resolution clauses3). The Court confirmed that the FIDIC dispute
resolution clauses are valid and enforceable. In the view of the Court Sub-Clause 20.8 should not be construed to widely.

Rather, Mr Justice Edwards-Stewart concluded that the words “or otherwise” should be viewed narrowly with the effect
that Sub-Clause 20.8 does not give either party “a unilateral right to opt out of the DAB process, save in a case where at
the outset the parties have agreed to appoint a standing DAB and that, by the time when the dispute arose, that DAB had
ceased to be in place, for whatever reason. In respect of other cases like in the case at hand the Court was of the view
that a DAB is already in place once it has been appointed. For the Court it emerged clearly from the words “final and
conclusive” in sub-clause 20.3 that the process of appointment is complete once the nominating body has “appointed”
the adjudicator. The Court clarified that that must mean the identification of a particular person as the adjudicator because
the appointing body cannot make the Dispute Adjudication Agreement for the parties. In the Court´s judgment, therefore,
a DAB is already “in place” once its member or members have been duly appointed in this way because from that moment
onwards a dispute can be referred to it. Moreover the Court rejected Claimant´s argument that the failure to agree on a
Dispute Adjudication Agreement demands the application of Sub-Clause 20.8. Rather the Court could not see why a Party
refusing to sign the Dispute Adjudication Agreement could not be compelled to do so by an order for specific performance
at the suit of one or more of the other parties. It held that, in the absence of any agreement between the parties, the
effect of incorporating the Appendix to the Conditions as the terms of the Dispute Adjudication Agreement was that all
the relevant terms of that agreement would be in place save for agreement of the adjudicator’s fees. In my view, there
would be an implied term of that agreement - reflecting the common intention of the parties to it - that the adjudicator
would be entitled to his or her reasonable fees and expenses.

The TCC decision does not consider the recent Swiss Supreme Court decision but it clearly deviates from the Swiss views
on the adjudication clauses.

14. In the English case Honeywell International Middle East Ltd v. Meydan Group Llc4) the English TCC (HHJ Akenhead)
held on 30 April 2014 for the reasons set out in the judgment that it did not consider that the aggrievd Party (Meydan =
Employer) had raised any ground which had a real prospect of success in relation to its application to set aside the Order
by which Honeywell (the Contractor) was given leave to enforce the Award in the same manner as a judgment or order of
the court to the same effect.

The case was decided on the following merits:

On 17 September 2007 Meydan entered into a contract ("the Arabtec Contract") with a main contractor Arabtec-WCT JV
("Arabtec") under which Arabtec agreed to carry out certain works at the Meydan Racecourse, including an extra low-
voltage ("ELV") system in the hotel, grandstand, boat house and the Dubai Racing Club which were all located there. On
29 June 2008 Meydan nominated Honeywell as the nominated subcontractor to be appointed by Arabtec under the
Arabtec Contract to install an ELV system. Honeywell was subsequently engaged as a sub-contractor by Arabtec although
no formal written agreement was entered into. Honeywell commenced work at the site on 19 July 2008.

The Arabtec contract was terminated in January 2009 but Honeywell continued to work at the Meydan Racecourse. In
DIAC arbitration case 02/2009 Arabtec commenced proceedings against Meydan. On 10 March 2009 Meydan sent
Honeywell a letter of acceptance informing them that they had been awarded a contract to execute and complete the
supply, installation, testing and commissioning of the ELV system at the Racecourse. On 17 March 2009 Honeywell wrote
to Meydan and confirmed their acceptance of the terms and conditions in the letter of acceptance but noted certain points
arising out of those provisions. On 17 May 2009 TAK wrote to Honeywell, responding to the comments in Honeywell's
letter of 17 March 2009. The letter indicated that it was copied to Meydan.
On 7 June 2009 an agreement incorportaing FIDIC Conditions of Contract was signed between Meydan and Honeywell for
the execution and completion of the supply, installation, testing and commissioning of the ELV System at the Racecourse
("the Contract"). The Contract indicated that it was signed by Mr. Fakhri Valikarim above Honeywell's seal or stamp.

The FIDIC Contract incorporated at Clause 20.6 the following provision in relation to Arbitration:

"Unless settled amicably, any dispute shall be settled by international arbitration. Unless otherwise agreed by both
Parties:

(a) the dispute shall be finally settled under the Rules of Commercial Conciliation and Arbitration 1994 of the Dubai
International Arbitration Centre

(b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules,

(c) the arbitration shall be conducted in the language for communication defined in Sub-Clause 1.4 [Law and Language],
and

(d) the venue of the arbitration shall be Dubai."

Under the Honeywell Contract Honeywell obtained a Dubai Arbitration Award issued on 1 March 2012. By Order made on
12 November 2012 Mr. Justice Akenhead gave a leave to enforce the Dubai Award. Subsequently Meydan submitted a
request to set aside the Order. On 4 March Justice Ramsey informed the Parties that on the basis of the evidence and
submissions he dismissed Meydan´s application to set the order aside.

Among other things Meydan had submitted that in the absence of ratification by the Court of Appeal or the Court of
Cassation in Dubai the arbitral Award was neither enforceable nor binding under UAE law. However, the English Court
held that Honeywell was successful in ratifying the Award in the Dubai court of first instance and that the 1958 New York
Convention does eliminate the "double Exequatur" requirement. Thus, there was no requirement "for anything to occur
in the local Courts for an Award which is final and binding" under the Dubai Rules. A further issue was whether the Contract
between the Parties was unenforceable as a result of purported bribery. In this respect the English Court held that in
accordance with English law bribery is clearly contrary to English public policy and therefore contracts to bribe are
unenforceable while contracts which have been procured by bribes are not unenforceable. It therefore concluded that
Meydan´s application had no real prospects to be successful.

15. The Namibian case Roads Authority v. Kuchling (A 188/2015) [2016] NAHCMD 32 (22 February 2016) involved a road
Project under the FIDIC Red Book. A DAB had been appointed and was in place. The court upheld an interim DAB decision
which confirmed the DAB´s jurisdiction with regard to a dispute which the Contractor had referred to it. The Namibian
High Court (Main Division, Windhoek) found that the DAB was entitled to make the interim decision on the preliminary
issues. In the view of the Court the DAB did not misconceive its duty under the reference and did not breach any procedural
rules under the agreement or rules of natural justice. Actually the Employer had brought an application for an order to
refer DAB’s interim decision to Arbitration. A rule nisi was granted by agreement between the parties. Upon the return
day court found that the interim decision has not brought finality to the dispute under the reference and so the decisional
process under the DAB has not come to an end. The Court found further that the Employer had failed to establish that the
DAB had violated procedural rules under the agreement when it refused to permit its interim decision to be referred to
Arbitration. Form the Court´s perspective the DAB’s refusal could not be considered as violating its procedural duty to act
fairly and to adopt procedures suitable to the dispute, avoiding unnecessary delay and expense. Consequently, the Court
concluded that Employer had not established any contractual right which the court was ready to protect by stopping the
internal adjudicating process and referring the interim decision to Arbitration. Rather the Court found that what the
Emplyoer sought for will produce the very consequence the Employer’s counsel fears, namely, unnecessary delay and
expense. Consequently, rule nisi was discharged and the application was dismissed with costs.

The Court very clearly observed what the role of the DAB is. It shall "resolve disputes between the parties to the
agreement through adjudication proceedings". Hence, the application which was brought to stop an internal and domestic
adjudication proceedings from continuing before a duly established Dispute Adjudication Board (‘the DAB’) was about to
fail.

In the view of the Court, the following applies: if a dispute is referred to a DAB to hear the dispute and the DAB takes a
decision – an interim decision – relevant to the dispute, but has not yet decided on the dispute referred to it, it will be
unacceptable to approach the Courts to stop the DAB proceedings and order a referral of the dispute to arbitration.

16. The English case J Murphy & Sons Ltd v. Beckton Energy Ltd [2016] EWHC 607 (TCC) (18 March 2016) involved a
threatened call on an "on-demand" performance bond under the FIDIC Conditions of Contract for Plant and Design Build
for Electrical and Mechanical Plant and for Building and Engineering Works designed by the Contractor First Edition 1999
("the FIDIC Yellow Book"). The contractor argued that the Employer was only entitled to payment of liquidated damages
in accordance with Sub-Clause 8.7 subject to Sub-Clauses 2.5 and 3.5.

The judge referred as to the width of Sub-Clause 2.5 to a preceding decision in NH International (Caribbean) Ltd v National
Insurance Property Development Company Ltd [2015] UKPC 37. There the question under consideration was whether or
not a claim to set-off or cross-claim by the employer fell within the scope of an identical clause to Sub-Clause 2.5. Lord
Neuberger said this at paragraph 40 :

"…More generally, it seems to the Board that the structure of clause 2.5 is such that it applies to any claims which the
Employer wishes to raise. First, "any payment under any clause of these Conditions or otherwise in connection with the
Contract" are words of very wide scope indeed. Secondly, the clause makes it clear that, if the Employer wishes to raise
such a claim, it must do so promptly and in a particularised form : that seems to follow from the linking of the Engineer's
role to the notice and particulars. Thirdly, the purpose of the final part of the clause is to emphasise that, where the
Employer has failed to raise a claim as required by the earlier part of the clause, the back door of set-off or cross-claims is
as firmly shut to it as the front door of an originating claim."

Unfortunately the case involved the interpretation of bespoke clauses. The Court was requested to consider the fact that
Sub-Clause 8.7 was drafted specifically by the parties for the purposes of the Contract. Clause 2.5 remained simply
unamended from the FIDIC Yellow Book. Since Sub-Clause 8.7 had been amended the issue was whether it should be given
greater weight than Sub-Clause 2.5. Actually the Parties had deleted the words "subject to sub-clause 2.5" from Clause
8.7 which required a decision on whether this meant that prima facie the parties did not intend Sub-Clause 8.7 to be
subject to Sub-Clause 2.5.

Held that in the circumstances, even without agreement or determination of the Engineer under Sub-Clauses 2.5 and 3.5
the Employer was entitled in good faith to assert breach on the part of the Contractor for delay and claim a sum of delay
damages as a consequence of such breach for the purpose of the Bond.

Carr J refused to grant the declaratory and injunctive relief the contractor sought, finding that the employer was entitled
to recover delay damages from the contractor and that the Engineer's agreement or determination of the amount of the
contractor's liability for delay damages was a not a pre-requisite to this recovery [J Murphy & Sons Ltd v. Beckton Energy
Ltd [2016] EWHC 607 (TCC)].

17. A German case involving a FIDIC contract related to the issue of ADR costs.
ADR proceedings are not for free. It might become difficult to involve DABs and/or arbitral tribunals if the applicant is
shortcoming in money.

In the event of ICC proceedings the Parties shall first pay the requested fees to the ICC. Meanwhile it may hold the case in
abeyance and fix an abeyance fee in accordance with Article 2(5) Appendix III. However, if the Parties fail to make the
requested payments the ICC (the Secretary General) may –after consultation with the arbitral tribunal- suspend its work
and set a time limit on the expiry of which the relevant claims shall be considered as withdrawn (Article 36(6) ICC
Arbitration Rules).

In Germany a contractor has suggested that he may deviate from the FIDIC multi-tier dispute clause arguing that he was
impecunious and unable to make the advance payments as requested under ICC Arbitration Rules. He actually placed
before the High Court Frankfurt a request to grant legal aid after having had initiated ICC proceedings in accordance with
the contract. The court dismissed the application by concluding that the applicant had failed to submit evidence for its
indigence and that the underlying arbitration clause was anyway binding and enforceable. Moreover the ICC emphasized
that the ICC proceedings were merely held in abeyance and the principle of lis pendens, well established in the civil
procedure rules of most civilian countries, applies (unreported decision LG Frankfurt dated 3 June 2014).

18. Romanian Cassation Court, 21.11.2102, n° 4613 (S.Y.I.V.T. AS v. Satu Mare SA): In this case the Contract was for a
wastewater treatment plant in Romania funded by the European Union under ISPA 2002 RO 16 P PE 019-05. The contractor
(S.Y.I.V.T. AS) pursued a claim against the employer (Satu Mare SA). In August 2010 a Dispute Adjudication Agreement
was signed with the sole adjudicator. In the subsequent DAB proceedings the Contractor obtained a DAB decision under
Sub-Clause 20.4 FIDIC in respect of which the Employer issued a notice of dissatisfaction. Thereafter the Contractor applied
at the Romanian court at Satu Mare to recognize and enforce the DAB award under the 1958 New York Convention. While
this matter was pending he also referred the matter to ICC arbitration under Sub-Clause 20.7. The local court in Satu Mare,
the Court of Appeal and the Cassation Court have rejected the application.

The Cassation Court dismissed the application concluding that the merely binding DAB decision was not to be treated as
a final arbitral award. Hence the merely binding DAB decision did not fall within the scope of application of the 1958 New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards see also the Report from V. Junger
(http://www.juridice.ro/339846/dispute-adjudication-board-decision-enforcement-under-new-york-convention-
admissibility-in-court-does-it-constitute-an-arbitral-award.html).

II. ICSID Awards

Since ICSID Courts have confirmed that a construction contract may be dealt with as an investment under Bilateral
Investment Treaties (BITs) it has become more and more popular to bring cases to ICSID courts.

ICSID Case ARB/03/29: In the case of Bayindir v. Pakistan a Turkish Contractor and the National Highway Authority of
Pakistan had entered into a contract for the construction of a motorway under FIDIC Conditions 1987, under which
disputes were to be referred to the Engineer and then to arbitration under the ICC Rules. The Employer argued that it had
properly acted and terminated the Contract in accordance with the decisions of the Engineer. The Contractor objected by
contending that the Employer had terminated the Contract for improper motives including external financial constraints.
The first hearing of the case brought under the treaty was concerned with jurisdictional challenges. The Bayindir case was
initiated in 2002 and effectively commenced in early 2004 while the ICSID decision on jurisdiction was given, in favour of
the contractor, in November 2005. After a full hearing on the merits had taken place in May 2008 the Tribunal confirmed
its jurisdiction and gave a final award in August 2009, by which all the claims were rejected based on the burden of proof
rule.
ICSID Case ARB/08/2: The case ATA Construction, Industrial and Trading Company v. Hashemite Kingdom of Jordan,
involved a contract for the construction of a dike on the Dead Sea incorporating a FIDIC form of Contract, 1987, governed
by Jordanian law. A dispute arose when the dike collapsed after completion of the works when the Employer started to
fill the dike with water.

The ICSID tribunal held that the majority of Contractor´s claims against Jordan related to disputes arising before the
Turkey-Jordan bilateral investment treaty (BIT) entered into force and were therefore “inadmissible for lack of jurisdiction
ratione temporis”. It therefore dismissed the majority of the claims. In making its award, the ICSID tribunal concurred with
the restrictive approach in Empresas Lucchetti SA et al v. Republic of Peru (ICSID Case No ARB/03/4) decision.

However, the tribunal upheld ATA's claim in respect of the foreclosure of the right to arbitration as a consequence of the
annulment of the preceding arbitral award in the Jordanian Court of Cassation which allegedly had cancelled the
arbitration agreement. This was held to be a breach of ATA's legitimate expectations and of Jordan's fair and equitable
treatment obligation under the BIT, and this related dispute was considered to have arisen only after the BIT came into
force.

The ICSID tribunal ordered Jordan to terminate ongoing court proceedings against ATA and the award gives ATA the right
to restart its commercial arbitration against Arab Potash Company (APC).

III. Arbitral Awards

ICC has pusblished a number of extracts from ICC awards which are relevant to daily construction contract practice. For
instance:

ICC 19581: DAB member failed to disclose that his ex-wife was a decision maker and head of claims and disputes unit of
Employer
ICC 6535, 16262: Tribunal may decline jurisdiction
ICC 16262 no valid appointment because appointing body did not consult with the parties properly
ICC 18320 no details in NOD necessary
ICC 10619: enforcement of Engineer´s decision under FIDIC 1987
In ICC Case 18096 it was common ground under a FIDIC Red Book contract that the Parties had established a DAB.
Subsequently a dispute on the jurisdiction of the DAB arose when the Employer failed to comply with the first DAB decision
and the Contractor initiated a second adjudication on this failure. Subsequently the Employer started the arbitration in
which it applied the tribunal to find that the DAB missed jurisdiction to issue its second decision in that it was allegedly
installed as an ad hoc DAB - rather than as a permanent DAB as recommended by the FIDIC Red Book.

It emerges from the reported facts that the Parties did not change the General Conditions of Contract for Works (Red
Book, 1999 Edition). However the DAB was concluded six years after signing of the contract and the related DAA was for
a lump sum in consideration of the adjudicator´s duty to decide on "one particular" dispute. Nevertheless the arbitrator
found that the Parties did not explicitly derogate from the Red Book default rule providing for a permanent DAB.

Rather the tribunal concluded that pursuant to Clause 7 GCDAA (General Conditions of Dispute Adjudictaion Agreement -
Red Book Version) in the absence of a mutual agreement in this respect the DAA remained unterminated (actually until
the written discharge under Sub-Clause 14.12 GCC would have been issued). Held that in account of the fact that the
Parties did not modify the pertinent provisions of the FIDIC Red Book, the DAA could only be terminated by mutual
agreement of both Parties pursuant to Clause 7 GCDAA and that therefore the jurisdiction of the DAB did not end by
issuance of the first DAB decision.
The award in ICC Case 18096 shows that it is crucial to establish clear and unambiguous terms of reference in the DAA.
The slightest ambiguity may result in further disputes and related extra costs. The FIDIC framework is consistent and
unambiguous if used without modifications and as suggested. In the event of change diligence and care should be applied
in order to adapt the FIDIC forms to the needs. It is worth to note that in practice also adjudicators believe that the late
appointment of the DAB under the Red Book should result in an ad hoc appointment. This is obviously incorrect in that
unlike an ad hoc DAB a permanent DAB provides the Parties with a standby Service and has jurisdiction with regard to
any dispute which may arise, even after termination of contract and/or completion of the Works. It is perfectly possible
and suitable to appoint a standing DAB even at a late stage. Better to have it too late than not to have it!

In ICC Case 16984 the Contractor brought various disputes to the DAB. The DAB made inter alia decisions n° 2 and n° 3
which did not become final and binding because of the existing NODs. The Employer failed to comply with the merely
binding DAB decisions and the Contractor referred this failure to the DAB. In these proceedings the DAB confirmed the
Employer´s breach and made an award on damages. Both parties were dissatisfied with this DAB decision n° 4 (Contractor:
regarding the award on damages; Employer: lack of jurisdiction of the DAB). The tribunal confirmed the Contractor´s views
and held that the Employer was liable for damages as a consequence of its failure to comply with the merely binding DAB
decisions.

ICC Awards on the enforceability of the multi-tier dispute resolution clause

ICC Case 14431: The decision involved a FIDIC Red Book contract whereunder the Engineer acted as the DAB. Held that
Sub-Clauses 20.2 et seq. are to be regarded as mandatory and that under the specific circumstances the arbitration should
be suspended while the parties proceeded with adjudication.

ICC Case 16155: This case related to a FIDIC Red Book contract. The majority decision held that the Employer had foregone
its right to enforce the DAB appointment because it had ignored the Contractor´s efforts to establish a DAB during the
performance of the contract.

ICC Case 16262: Under a FIDIC Yellow Book Contract the tribunal declined jurisdiction because the validly set up DAB was
required to decide on the pending claims prior to arbitration as a condition precedent of arbitration.

ICC Case 16765: Held that Sub-Clauses 20.2 et seq. FIDIC Yellow Book create a multi-tier mechanism to be followed should
a dispute arise between the Parties.

IV. Conclusions

As confirmed by Mr. Chris Seppälä international arbitral awards are not systematically reported (Seppälä, The
development of a case law in construction disputes relating to FIDIC contractcs, in: Gailard/Banifatemi, Precedent in
International Arbitration, 67, at page 68). On the other hand a substantial number of ICC cases have actually involved FIDIC
forms of contract, such as ICC case n° 10619. Mr. Seppälä has observed about 40 awards interpreting FIDIC contracts
(Seppälä, The development of a case law in construction disputes relating to FIDIC contratcs, in: Gailard/Banifatemi,
Precedent in International Arbitration, 67, at pag 69). Further awards are referred to above (see also ICC Dispute
Resolution Bulletin 2015, Issue 1.)

Unlike ICC awards court cases are -depending on the local environment-usually systematically reported. However, of
course court cases may not really contribute to a lex mercatoria since the Courts are supposed to apply the law as
determined by the conflict of laws rules without being required to look at international experience. Though the reference
to international experience may sometimes help to avoid mistakes, it is not a legal requirement.
But at least in developing countries guidance from other jurisditions may be used in order to "illustrate" what the law
could be, albeit these decisions are far away from consituting a binding precedent or legal authority. In so far it might be
helpful to know what the Swiss Federal Supreme Court Bundesgericht) has said with regard to the finding of justice
(German: Rechtsfindung): In particular in traditional transborder legal relations an appropriate finding of justice and gap
filling can not be put in place unless based on comparative law (BGE 126 III, 129, 138).

The recent inflation of FIDIC related court decisions is unfortunately very much concentrating on jurisdictional issues.
Guidance on substantial clauses and the interpretation thereof is still rarely available. But the number of interesting case
law is continuously increasing.