International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
We start with two papers about the status of Dispute Adjudication Boards. In the first Mr Frederic Gillion of Fenwick Elliott LLP, London, considers the “Enforcement of DAB Decisions under the 1999 FIDIC Conditions of Contract” (at page 388). He writes with particular reference to a recent case in the Singapore courts: CRW Joint Operation v. PT Perusahaan Gas Negara (Pesero) TBK. The Singapore High Court gave its decision in July last year.1 There was an appeal. The judgment of the Court of Appeal was given on 13 July this year.2 It dismissed the appeal and upheld the decision of the lower court to set aside a final award (by a majority) in an ICC arbitration (Case No 16122). That award had ordered immediate payment of an amount which a DAB had decided was due but in respect of which a notice of dissatisfaction had been given so that it did not become final. The Court of Appeal said that the decision of the arbitrators in the majority was “unprecedented and, more crucially, entirely unwarranted”. Mr Gillion’s article discusses the decisions in a thorough analysis and brings out problems in clause 20 of the Red Book, although, as Mr Gillion says, in certain respects the position is clearer in the FIDIC Gold Book. The Court set aside the award primarily on the grounds that the merits had not been considered. It held that there should have been a rehearing of the dispute for a final award to be made. Mr Gillion discusses four options that might be available to a party in whose favour a binding, but not final, Dispute Board decision has been made:
However, as he also observes, the problem really lies in the wording of clause 20 of the FIDIC Conditions. There needs to be some revision which would, as Mr Gillion says, “bring more certainty to what is currently an ambiguous section of the 1999 suite of FIDIC contracts and would no doubt give parties more faith in the DAB process and its outcome”.
Mr Gillion’s excellent paper and the judgment of the Court of Appeal need to be read carefully and closely. The Court had the benefit of full and well–informed argument. Its judgment referred to numerous articles. It approved passages in two seminal papers which we have published: by
The International Construction Law Review [2011
386