International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
In July last year the Singapore High Court gave judgment in a case involving PT Perusahan Gas Negara (Persero) TBK and CRW Joint Operation (Indonesia). In 2010, the same parties had been involved in litigation, also in Singapore, concerning an award made in an arbitration held around 2009. That arbitration had been about whether to give effect to a decision of a Dispute Adjudication Board. The claimant (CRW) had then been unsuccessful so in 2011 it started a second arbitration in which it asked for a partial or interim award to enforce the same decision of the Dispute Board. This time it was successful. The judgment is called, for convenience, “Persero II” [2014] SGHC 146. However, there is to be an appeal. Nevertheless, given the interest in the subject of the enforcement of binding but not final decisions of DABs, we thought it appropriate to begin this issue with two full and detailed articles from two commentators, Mr Christopher Seppälä, Partner, White & Case LLP Paris, and Legal Adviser, FIDIC Contracts Committee and Mr Frédéric Gillion, Partner, Pinsent Masons LLP, both of whom have written for us on the subject before.
Mr Seppälä originally led the field with his criticism of the decision of the Singapore Court of Appeal in “Persero I ” ([2012] ICLR 4). Two years later, we start the year with the same author in the same place (page 4) with his further contribution which is entitled “Singapore Contributes to a Better Understanding of the FIDIC Dispute Clause: The Second Persero Case”. Mr Seppälä welcomes the latest decision. First, he believes that, at least in Singapore, a contractor will now be able to apply to enforce a binding, but not final, decision of a DAB decision as long as it does so by way of an interim or partial award and takes care to submit the merits underlying the decision to the same arbitration, which, although not ideal, is not necessarily a major inconvenience. He says: “the one-dispute approach best advances the objective of the Red Book's security of payment régime”. Second, he considers the decision should provide valuable guidance to tribunals outside Singapore.
Mr Gillion's contribution is at page 26: “Persero II: ‘Pay Now, Argue Later’ in the Context of DAB Decisions – What Approach Best Advances the Purpose of FIDIC's Security of Payment Regime? (Long titles are a feature of this issue.) Mr Gillion differs from Mr Seppälä. In his contribution Mr Gillion argues that the one-dispute approach would unnecessarily complicate the enforcement of DAB decisions since a party should not have to take the onerous and time-consuming step of bringing an arbitration about the merits of the underlying dispute when all that is needed is prompt payment the DAB decision. Mr Gillion explains why a party should be entitled to refer only the failure to pay to arbitration without more. A “two-dispute approach” would better advance FIDIC's security of payment regime by requiring the debtor to pay now, but allowing it later either in the
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