International Construction Law Review
ENFORCEMENT OF DAB DECISIONS UNDER THE 1999 FIDIC CONDITIONS OF CONTRACT: A RECENT DEVELOPMENT: CRW JOINT OPERATION v. PT PERUSAHAAN GAS NEGARA (PERSERO) TBK1
FREDERIC GILLION
Partner, Fenwick Elliott LLP 2
1. INTRODUCTION
A couple of years ago, Christopher Seppälä, legal adviser for the FIDIC Contracts Committee, published a very useful commentary3 on ICC Case No 10619. That case was then and appears to be still now the only reported case under the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (“ICC”) where an arbitral tribunal ordered payment by an interim award of the sum set out in an engineer’s decision which had been the subject of a notice of dissatisfaction and was as a result “binding” but not “final”.4
By that award, the arbitral tribunal held in effect that decisions of the engineer under clause 67 of the FIDIC Conditions of Contract for Works of Civil Engineering Construction, Fourth Edition, 1987 (“the 1987 Red Book”), could be enforced by an interim or partial award5 ordering the losing party to pay immediately the amount assessed by the engineer in his decision.
Considering the implications of that case for the 1999 suite of FIDIC Books where the engineer’s decision is replaced by a decision of a Dispute Adjudication Board (“DAB”), Mr Seppälä’s view was that because the
1 [2011] SGCA 33.
2 The views expressed in this article are entirely those of the author and not necessarily those of the firm.
3 Christopher R Seppälä, “Enforcement by an Arbitral Tribunal of a Binding but Not Final Engineer’s or DAB’s Decision under the FIDIC Conditions” [2009] ICLR 414.
4 ICC Case No 10619 of 2001 (Italian contractor v. African employer), Interim Award, an extract of which can be found in (2008) 19 ICC International Court of Arbitration Bulletin, No 2, 85. In an earlier ICC case, an arbitral tribunal had, by a partial award, ordered payment of final and binding decisions of the engineer under clause 67 of the FIDIC Conditions of Contract, Second Edition, 1969 (ICC Case No 3790 of 1983 (French contractor v. Libyan Employer), Partial Award (1984) IX ICCA Yearbook 119).
5 Mr Seppälä rightly comments in his article that, since Article 2 (iii) of the ICC Rules does not distinguish between a partial and an interim award “[t]hey mean the same thing and any such award is final as to the issue or matters which it decides”. However, local courts may see things differently and consider that an interim award is only a provisional measure incapable of being enforced under the laws of their country. This is addressed further below.
Pt 4] Enforcement of DAB Decisions under 1999 FIDIC Conditions
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