Gillion outlines the simplicity of the approach adopted by the Court of Appeal in its enforcement of DAB decisions, namely that the successful party may refer the paying party’s non-compliance with a DAB decision directly to arbitration without having to submit at the same time the merits of the DAB decision and also importantly, without first having to refer the paying party’s non-compliance as a secondary dispute back to DAB. Although the decision may seem to provide “clarity and certainty” as to the steps required by a successful party to enforce a binding but non-final DAB decision, the author argues that in fact it has added more confusion to the debate by endorsing an approach which differs from previous Persero decisions. The article concludes with the author’s articulation of four options that contracting parties might adopt when seeking to enforce a binding but not final DAB decision.

FIDIC has long been recognised for its use across a broad spectrum of international engineering and construction projects. The FIDIC notice provision in particular has been the focal point of ongoing discussion worldwide and so in this edition we welcome a paper by Alina Bilan and Bazil Oglindă (at page 25) titled, “The Notice of Claim under sub-clause 20.1 in a FIDIC Contract governed by Romanian law”. The article conveys the Romanian experience of the FIDIC Notice of Claim provision and carefully analyses the operation of sub-clause 20.1 under the Romanian law, examining the validity of the notice to claim, the legal status of the 28-day period during which notifications may be submitted, the commencement of this term and whether the efficacy of a notice depends on certain actions taken by the employer. The authors explore the compatibility of Notice of Claim provision under sub-clause 20.1 with the existing Romanian law.

While under the common law most practitioners consider sub-clause 20.1 to be a condition precedent time bar clause, non-compliance with which represents a breach of contract, under Romanian law its interpretation is more flexible and imports notions of good faith. Where Romanian law is applicable, the assessment of a notice of claim should consider the parties’ real intention, based on the interpretation principles for legal documents enshrined in the New Romanian Civil Code. The article presents an interesting discussion of the legal character of the 28-day term clause from the perspective of Romanian law, beginning with an examination of the legal effect of a failure to notify in due time. The authors highlight the austere sanction for failure to fulfil conditions of sending a notice within the 28-day term provided under sub-clause 20.1, which is the loss of the contractor’s