Table of FIDIC Cases PDF

Corbett and Co's FIDIC Case Law Table
¬ The information and summaries in this table should not be relied upon and are offered as guidance only.
¬ Please note that this table may not be complete and that cases listed may have been overruled or may not be good in law in any specified jurisdiction.
¬ Please take careful legal advice in the jurisdiction(s) relevant to your project or dispute.
¬ If you are aware of any cases or awards that refer to FIDIC which are available to the public and not listed, please let us know at [email protected] .
* Links in italics would require ICC or i-law subscription to access online.
Clauses
Year Case Name Jurisdiction FIDIC Books Summary Link
Cited
1974 International Tank Court of Not specified 67 Since there was yet no arbitration in existence by which the validity of the notice could be Link*
and Pipe S.A.K. v Appeal, determined, the court under the governing law, English law, has jurisdiction to determine the
Kuwait Aviation England and application.
Fuelling Co. K.S.C. Wales
1981 The Corporation of Supreme Not a FIDIC 44; 46 In this case, which did not involve a FIDIC contractual provision, the Court considered the date
Trustees of the Court, Contract - by which a contractor must submit a claim under the contract for costs, losses, damages or
Order of the Sisters Queensland, Refer to delay caused.
of Mercy v Australia Summary Note
Wormald
lnternational Pty
Ltd
1982 Grinaker Supreme Red, Third 51; 51.2 Variations clause similar to cl.51 of FIDIC Red Book 3rd Edition. Held that a mere change in Link*
Construction Court, South edition, 1977 quantities did not amount to a variation. Donaldson J in the English case of Crosby v Portland
(Transvaal) Pty v Africa UDC (1967) had come to the opposite conclusion.
Transvaal Provincial
Administration
1985 CMC Cooperativa European Refer to Refer to A public works contract was financed by the European Development Fund (EDF) through the Link
muratori e Court of Summary Note Summary European Commission (EC). Invitations to tender were based on FIDIC's "Notes on
cementisti and Justice, Europe Note Documents for Civil Engineering Contracts " which contained Instructions to Tenderers
others v whereby they were required to demonstrate experience and technical and financial
Commission of the qualifications for the project. One of the issues was whether the Employer's (not the EC's)
European own post-tender investigations and requests for clarifications of a tenderer's offer were
Communities compatible with internationally accepted standards for an award procedure and in particular
whether they were compatible with Clause 12 of the Instructions to Tenderers published by
FIDIC. The Court absolved the EC from responsibility to the tenderer given its public duty to
ensure lowest and most economically advantageous offer and in any event the Employer's
investigations and requests for clarifications were found not to have been to the detriment of
the claimant tenderer. Note: 1) The invitation to tender was based on documents published
under the title "notes on documents for Civil Engineering Contracts by FIDIC. "
2) The Court was then known as 'Court of Justice of the European Communities'.
1985 JMJ Contractors Ltd Queen's Bench Red, Second 5.1 Preliminary issue to determine proper law in FCEC subcontract where subcontract was silent Link*
v Marples Ridgway Division, Edition,1969 as to proper law. Main contract was FIDIC 2nd which provided the proper law to be Iraqi law.
Ltd England and Held that the proper law of the contract was the law of Iraq because the subcontract had to
Wales operate in conjunction with the main contract and the main contract was governed by the law
of Iraq. Conflict of laws. A FCEC subcontract is compatible with a FIDIC 2nd edition
construction contract.
1987 ICC First Partial Not Specified Red, Third 66; 67 The Arbitral Tribunal considered what was required under Clause 67 of the "Third Book" and Link*
Award in Case 5634 Edition, 1977 found that (a) if the Engineer fails to issue a decision on a dispute referred to him or a party is
dissatisfied with an Engineer's decision, that party need not file a Request for Arbitration with
the ICC, merely a "claim to arbitration", and (b)if the Engineer fails to issue a decision or a
party is dissatisfied with the Engineer's decision, that party cannot repeatedly refer the same
issue to the Engineer but must issue a notice claiming arbitration.
1987 ICC Partial Award in Not Specified Red, Third 67 The Arbitrator considered whether the wording of Clause 67 (i.e., that the Engineer's decision Link*
Case 5600 Edition, 1977 is final and binding unless a "claim to arbitration" has been communicated to it by either
party within ninety days and that, within this ninety day period, the Contractor, if dissatisfied
with Engineer's decision, may, "require that the matter or matters in dispute be referred to
Arbitration as hereinafter provided") required the dissatisfied party to serve a formal Request
for Arbitration or whether the intention is merely that the dissatisfied party records or
notifies his intention to arbitrate. Held that the essential requirement of Clause 67 is the
notification of a serious intention to arbitrate.
1988 ICC Second Partial Not Specified Red, Third 67; 68 The contractor challenged the Architect’s Clause 67 decision with a notice of arbitration Link*
Award in Case 5634 Edition, 1977 within the relevant time limit but the letter setting this out was sent by the contractor’s
solicitors to the employer’s solicitors. The letter was not sent direct to the Architect but the
Architect later received a copy from the employer within the relevant time limit. In this way it
was a “windfall communication”. The arbitral tribunal distinguished the Court of Appeal
decision in Getreide Import Gesellschaft G.m.b.H. v Contimar S.A. (1953) 1 Lloyds Rep. 572.
The Arbitral Tribunal found that the Architect was aware of and had had communicated to
him a claim to arbitrate his Clause 67 decision. The Arbitral Tribunal therefore had
jurisdiction to entertain the claim.
© Corbett Co International Construction Lawyers Ltd 2017
1
Clauses
Cited
1988 Simaan General Court of Red, Fourth No The court found that the nominated supplier could not have assumed a direct responsibility Link
Contracting Appeal, Edition, 1987 clauses for the quality of the goods and therefore, the economic loss suffered by the main contractor
Company v England and cited was irrecoverable.
Pilkington Glass Ltd Wales
1988 Insurance Co of the The Supreme Not Specified - Not Although the case itself is on insurance, and the construction contract in question was not a Link
State of Court, Hong Refer to the Specified - FIDIC contract, itt provided for a 12-month period for FIDIC maintenance.
Pennsylvania v Kong Summary Note Refer to
Grand Union the
Insurance Co Ltd Summary
and Another Note
1988 Mvita Construction Tanzania, Red, Second 41; 63; The contract incorporated the FIDIC 2nd edition Conditions. Clause 63 does not specify the Link*
Co v Tanzania Court of Edition, 1969 2.6 of time within which the employer should act after receiving the engineer’s certificate of
Harbours Authority Appeal FIDIC Red default. The court of appeal held that the employer will lose his rights if he does not give
Book notice within a reasonable time after the engineer’s certificate. The reasonableness of the
Fourth time, however, only arises, however if during the period there was no continuing breach by
Edition the contractor. The judge did not however determine whether, a rectification of the breach
1987 following a termination notice within a reasonable period precludes continued exercise of the
power of forfeiture.
1988 Pacific Associates Court of Red, Second 11; 12; The Engineer owed the Contractor no duty of care in certifying or in making decisions under Link*
Inc and Another v Appeal, Edition, 1969 46; 56; clause 67. There had been no voluntary assumption of responsibility by the Engineer relied
BAXTER and Others England and 60; 67 upon by the Contractor sufficient to give rise to a liability to the Contractor for economic loss.
Wales
1989 ICC Final Award in Not Specified Red, Third 6; 44; 51; The Arbitral Tribunal considered whether or not the contractor could recover global sums for Link*
Case 5634 Edition, 1977 52; 60; 67 time related loss or disruption caused by an instruction for a variation under Clause 52(2).
The Arbitral Tribunal considered whether Clause 52(5) obliged the contractor to give the
Architect’s Representative and QS Representative particulars of claims for damages for
breach of contract and, if so, whether a claim for damages should be valued and certified
under Clause 60(5). The arbitral tribunal found that the answer to both questions was “no”.
The arbitral tribunal also considered whether a failure by the claimant to comply with the
requirements of Clauses 6, 44 and 52 as to notices meant that the arbitral tribunal should
reject an otherwise valid claim. The arbitral tribunal did not answer this “yes” or “no” but
indicated that an answer was not necessary because the claims would fail on other grounds.
1989 ICC Partial Award in Not Specified Red, Third 67 The Arbitral Tribunal considered whether a submission was correctly made to the engineer Link*
Case 6238 Edition, 1977 under clause 67.
1989 ICC Interim Award Not Specified Red, Third 1; 67; 69 A dispute followed the Contractor's termination of contract with a public entity in an African Link*
in Case 6216 Edition, 1977 state where the arbitrators assumed the law to be the same as English common law. The
Contractor's claims in tort for trespass to land or goods and/or conversion of its property
were found to fall within the jurisdiction of the tribunal provided by Clause 67. They were
claims which arose "in connection with" or "out of" the contract. The tribunal however
refused to consider and determine related matters concerning the constitutional rights of a
citizen of the state concerned. The Claimant would have to obtain elsewhere any such
redress to which it was entitled.
1989 ICC Interim Award Not Specified Red, Second 67 The Arbitral Tribunal considered consolidation of arbitration under the sub-contract and the Link*
in Case 5898 Edition, 1969 arbitration under the main contract.
1990 ICC Final Award in Not Specified Red, Third 11; 12; Original contract and pre-contract documents declared that material was sand, broken shells, Link*
Case 5597 Edition, 1977 41; 52; silt and clay. Claimant was entitled to assume material was as described and, if different,
55; 56 compensation would be due under Contract, where it meets condition which it could not
reasonably have foreseen.
1990 ICC Final Award in Not Specified Red, Third 51; 52; A plain letter by the Architect is not a Clause 67 decision. The Arbitrators conclude therefore Link*
Case 6326 Edition, 1977 67; 93 that the Architect gave no decision on the disputes referred to him.
1990 ICC Partial Award in Geneva, Red, Third 67 FIDIC Standard Form 3rd Edition, with Clause 67 amended and re-numbered. The project was Link*
Cases 6276 and Switzerland Edition, 1977 completed in an Arab country. The arbitral tribunal found that the condition precedent for
6277 referral of a dispute to arbitration, whereby it must first be submitted to the Engineer under
Clause 67 [here 63], had not been complied with. The Contractor's conclusion of the works
and the Employer's failure to notify the Contractor of the Engineer who would decide the
dispute were not relevant. The Contractor was in the circumstances obliged to request from
the Employer the name of the Engineer for this purpose. The present referral to arbitration
was therefore premature.
1990 ICC Final Award in Not Specified Red, Second 1; 67 Non resort to the Engineer as provided in Clause 67 prior to instituting arbitral proceedings is Link*
Case 6230 Edition, 1969 not a basis for asserting the arbitral tribunal's lack of jurisdiction.
1991 ICC Final Award in London, Red, Edition 67; 69 1) "but for" test used to determine the jurisdiction of the tribunal. 2) punitive damages are Link*
Case 6216 United Not Specified not allowed for breach of contract (subject to exceptions) 3) punitive damages can be
Kingdom awarded for claims in tort.
2
Clauses
Cited
1991 ICC Partial Award in Not Specified Red, Second 1; 63; 67 1) What is required under FIDIC 2nd Edition for valid termination under Clause 63? The AT Link*
Case 5948 Edition, 1969 considered that this is a forfeiture clause and therefore to be strictly construed. It found on
the facts that a purported "certificate" was not a certificate in compliance with Clause 63. 2)
Is it necessary under Clause 67 to initiate arbitration or can a letter suffice to preserve the
right thereafter to arbitrate? The Arbitral Tribunal determined that the correct answer was
the latter (letter is sufficient). See also Final Award in this case in 1993.
1991 ICC Final Award in Not Specified Red, Third 30 The tribunal considered whether the Claimant was entitled to recover interest or other Link*
Case 5029 Edition, 1977 financial costs under the Egyptian Code. Passing reference was made to the cost of financing
the execution of the work under the FIDIC 3rd edition.
1992 ICC Final Award in Not Specified Red, Second 44; 52; 67 The tribunal considered whether a “dispute” existed under the Contract which could be Link*
Case 6535 Edition, 1969 referred to the Engineer. It found that, as at a particular date, the Contractor had merely
asked the Engineer to review claims and that (i) there had been no existing dispute at that
time, and (ii) the Contractor had not clearly requested a decision from the Engineer under
Clause 67.
1992 ICC Partial Award in Zurich, Red, Second 8; 39; 67 See also the final award below. A bespoke sub-contract governed by Swiss law incorporated Link*
Case 6611 Switzerland Edition, 1969 by reference terms of the main contract (FIDIC 2nd edition 1969), including its arbitration
clause at clause 67 which provided for all disputes first to be referred to the Engineer. The
project was abandoned and no Engineer was ever appointed under the sub-contract. The sub-
contractor referred a dispute over its claim for payment directly to arbitration. The tribunal
found the arbitration clause had been incorporated by reference leading to a valid arbitration
agreement under Swiss law and the NY Convention. Direct referral to arbitration was also in
the circumstances permissible. Further, by expressly accepting the agreement to arbitrate in
its Reply to the Request for Arbitration, a new and distinct arbitration agreement was
concluded in any event which complied with Swiss law and the NY Convention. Prior
reference to the Engineer was irrelevant to that second arbitration agreement. The tribunal
therefore had jurisdiction over the dispute.
1993 ICC Final Award in Not Specified Red, Second No See partial award on jurisdiction above. Swiss substantive law governed a sub-contract Link*
Case 6611 Edition, 1969 clauses derived from FIDIC Conditions (2nd edition 1969). It contained a pay when paid clause. The
cited project was abandoned due to Employer's insolvency after a global advance payment of 15%
of total project value had already been disbursed to the main contractor for distribution to all
project participants according to their intended work value, including to the sub-contractor.
The sub-contractor had by then already done work in excess of its own 15% which work had
also been approved by the main contractor and Employer and certified by the Engineer for
payment under the main contract prior to the date of its termination. The issue was whether
the balance of the global advance payment still in the hands of the main contractor was to be
considered, at least in part, as payment made by the Employer for the work performed by the
sub-contractor. The tribunal found that the risk lay with the main contractor who indeed
could be said to have been paid by the Employer for all work done under the sub-contract.
Accordingly, the sub-contractor obtained a majority award for payment.
1993 ICC Final Award in Not Specified Red, Second 44; 51; 60 The Arbitral Tribunal principally considered a contractor's claims under the "2nd edition". Link*
Case 5948 Edition, 1969 The Arbitral Tribunal considered the ways in which a contractor can recover damages for an
employer's failure in breach of contract to pay the Advance Payment on time and how the
quantum of damages can be assessed. See also partial award in this case in 1991 above.
1995 ICC Partial Award in Nairobi, Kenya Red, Third 4; 67; 69 Clause 28 of Sub-contract stated that Sub-contractor shall comply with Main Contract so far Link*
Case 7423 Edition, 1977 as it applies to Sub-contract works and "are not repugnant to or inconsistent with" the Sub-
contract. Problem was Sub-contractor was not nominated as per Clause 69, is not under direct
control of Engineer, and Engineer has no duties or powers over Sub-contract; therefore, there
is no Engineer in Sub-contract. Arbitrator held that the Sub-contract would be redrafted to
remove inconsistencies to identify the parties and the works and omit requirements for
adjudication by the Engineer.
1996 George W. Supreme Court Red, Fourth 70 The applicants in this case challenge the decision of Board of the Cyprus Ports Authority by Link
Zachariadis Ltd v of Cyprus Edition which the tender was allegedly awarded to the wrong tenderer. The tender documents
Port Authority of consisted of, inter alia, the General Conditions of FIDIC 4th with Conditions of Particular
Cyprus Application. The applicants included a VAT of 5% (the rate applicable 30 days before the date
of submission of tenders) in their tender price while all other tenderers included a VAT of 8%.
Under the FIDIC contract (Sub-clause 70.2) and according to the tender provisions, the
increase in the VAT had to be borne by the Employer. The court compared the value of
tenders excluding VAT and found that the tender price of the successful tenderer (excluding
VAT) was still the lowest and therefore dismissed the applicants' application.
1996 ICC Final Award in The Hague, Red, Third 67; 67.1; Under Clause 67, to validly submit a dispute to arbitration, a mere notice of the intention to Link*
Case 7641 Netherlands Edition, 1977 FIDIC 4th: arbitrate is sufficient; an actual beginning of the arbitration procedure is not required.
67; 67.4
1996 ICC Final Award in Tunisia Red, Third 67 The arbitral tribunal found that it did not have jurisdiction to enforce/consider the final and Link*
Case 7910 Edition, 1977 binding decision of the engineer.
3
Clauses
Cited
1997 ICC Final Award in London, Red, Fourth 13.1; 20; The Contractor's country was invaded and war ensued. As a result of looting by the invading Link*
Case 8677 United Edition, 1987 20.2; forces, the mobilised Equipment for shipment to site was lost. Under Clause 65.3, the
Kingdom 20.3; Contractor's claim for Loss of Contractor's Equipment was allowed.
20.4;
21.4; 52;
54.2;
60.3;
60.6;
62.1;
65.2;
65.3;
65.5;
65.6; 67;
67.1; 67.4
1997 Gammon Constano High Court of Red, Fourth Failure of the Employer to comply with the conditions precedent to the Contractor's Link
JV v National Delhi, India Edition performance , such as handing over the site, were briefly considered. In this case, the
Highways Authority Claimant's bid was non-responsive which was allegedly due to the poor performance of a
completely different contract based on FIDIC between the Gammon (a member of JV) and the
Employer.
1997 ICC Final Award in Madrid, Spain Red, Fourth 20.4; 65.5 In a dispute on a contract, which was not a FIDIC form, the claimant argued that the principles Link*
Case 8873 Edition 1987 contained in FIDIC had become so widely used as to form a trade usage. The dispute related
to the force majeure provisions. The arbitral tribunal held that the principles in FIDIC did not
satisfy the requirements to become a trade usage as FIDIC was not always used in
international construction contracts and therefore there was not a sufficient degree of
uniformity to become a trade practice nor did the principles of FIDIC form autonomous
principles of law.
1998 ICC Partial Award in Paris, France Red, Second 1; 5.1; 60; The Arbitral Tribunal considered whether the request for arbitration under clause 67 was Link*
Case 9202 Edition, 1969 67; 69 admissible, whether the termination of contract was valid and whether the administrative
contract was valid under local law.
1998 Cegelec Projects Ltd Technology Refer to Refer to Respondent requested a declaration that a clause in a sub-contract agreement making a Link
v Pirelli and Summary Note Summary general incorporation of terms from the main contract did not include the incorporation of
Construction Construction Note the sub-contract’s arbitration clause. The court established that the test looks at the language
Company Ltd Court, England of the words used followed by in which they are and the nature of the transaction. The court
and Wales held that the dispute resolution clause was not incorporated, in part, because the sub-
contract already had a dispute resolution clause and a comparison between the two proved
they were incompatible. The court added that attempting to equate a complex conciliation
procedure with amicable settlement without an express statement would be artificial and
removed from reality.
Note: The case only mentions FIDIC in passing and the dispute resolution clauses in question
have similarities with FIDIC clauses from the 3rd and 4th editions but have been heavily
amended.
1998 Bouygues SA & High Court, Red, Fourth 1.1(3)(i); ‘Contract Price’ does not relate to sums payable to the Contractor pursuant to Sub-Clause Link
Anor v Shanghai Hong Kong Edition, 1987 65.8; 69.3 69.3 [Payment on Termination].
Links Executive Note: See below for the appeal at Bouygues SA & Anor v Shanghai Links Executive Community
Community Ltd (4 Ltd (2 July 1998).
June 1998)
1998 Bouygues SA & Court of Red, Fourth 1.1(3)(i); ‘Contract Price’ refers to sums payable to the Contractor for the performance of their Link
Anor v Shanghai Appeal, Hong Edition, 1987 65.8; 69.3 obligations, i.e., execution and completion of the work, under the contract and not the sums a
Links Executive Kong Contractor claims, which are payable to it upon termination regardless of whether or not such
Community Ltd (2 sums refer to work performed and certified prior to termination. Payments upon termination
July 1998) arise out of Sub-clauses 65.8 and 69.3, which refer to ‘work executed prior to the date of
termination at the rates and prices provided in the Contract’ not the ‘Contract Price’ as
defined in the Contract. Whether the sums refer to on account payments or instalments is
irrelevant because the payments had not been made prior to termination. Once the contract
is terminated, these sums fall under different payment provisions (i.e., Sub-clauses 65.8 and
69.3).
Note: See above for the High Court judgement at Bouygues SA & Anor v Shanghai Links
Executive Community Ltd (4 June 1998).
1999 ICC Final Award in Columbo, Sri Not Specified No The case involved a dispute over interest rates and payment of interest. Link*
Case 10079 Lanka clauses
cited -
Refer to
Summary
Note
2000 ICC Final Award in Kuala Lumpur, Red, Fourth 58.3 The Arbitral Tribunal did not have power to draw adverse inferences merely because the Link*
Case 10166 Malaysia Edition 1987 claimants' QS was not qualified nor called to give evidence.
4
Clauses
Cited
2000 Hellmuth, Obata v Technology White, Second No The claim pleaded in contract and alternatively in quasi-contract. Link
Geoffrey King and Edition, 1991 clauses
Construction cited
Court, England
and Wales
2001 ICC Interim Award Paris, France Red, Fourth 2.1; 67; The claimant contractor applied for an interim award declaring (1) that the respondent Link*
in Case 10619 Edition, 1987 67.1; 67.4 employer must give effect to an Engineer’s decision made pursuant to Sub-Clause 67.1, and
(2) ordering the respondent to pay the amounts determined by the Engineer as an advance
payment in respect of any further payment which would be due from the respondent
pursuant to the final award. The Arbitral Tribunal granted the relief sought.
2002 ICC Final Award in Paris, France Red, Fourth 11; 67; The Arbitral Tribunal found that the respondent employer, who had not objected within the Link*
Case 10619 Edition, 1987 67.1; 67.3 prescribed time limit to the Engineer’s decisions and had not stated his intention to
commence arbitration, was nonetheless entitled to take advantage of the notice of
arbitration issued by the claimant contractor. The respondent employer could therefore
request the arbitral tribunal to reverse the Engineer’s decisions.
The arbitral tribunal also considered article 11 of the conditions of contract which required
“the Employer to have made available to the Contractor, before the submission by the
Contractor of the tender, such data from investigations undertaken relevant to the Works,
but the Contractor shall be responsible for his own interpretation thereof”. The arbitral
tribunal found that a “Materials Report” provided by the employer at tender after years of
investigation was not contractual and was erroneous and misleading. It also found that the
contractor/bidder was justifiably required to interpret the data but was not required to
expedite, in the limited time available for its bid, new thorough investigations when the
employer had carried out investigations over some years.
2002 ICC Interim Award London, Yellow, Test 2.5; 11.3; English substantive law. Employer wished to set off delay damages against Contractor's claim Link*
in Case 11813 United Edition, 1998 14.6; for unpaid certified sums. As contemplated by English case of Gilbert-Ash (Northern) Ltd -v-
Kingdom 14.7; Modern Engineering (Bristol) Ltd [1974] AC 689, clear and express language is required to
20.4; 20.6 exclude a right of set-off. Nothing in the TEST edition of the FIDIC Yellow Book 1998 contains
express language to this effect. Set-off therefore permitted as a defence to the claim.
2002 ICC Final Award in Berlin, White, Second 17; 18.1 Whether the FIDIC White Book was incorporated into the agreement between Client and Link*
Case 11039 Germany Edition, 1991 Consultant including the one year limitation for claims; and whether such limitation clause
was valid under German law. Held: yes and yes.
2002 ICC Final Award in Caribbean Red, Fourth 1; 1.1; The Arbitral Tribunal considered the identity and designation of Engineer and whether or not Link*
Case 10892 Edition, 1987 2.6; 39; the contract had been lawfully terminated.
39.1; 63;
63.1
2002 ICC Partial and Final Wellington, Red, Third 11; 12; Partial Award Issue 1: Clause 11 refers to "investigations undertaken relevant to the Works" Link*
Awards in Case New Zealand Edition, 1977 39; 65 and the material regarding which unforeseen ground conditions were said to be encountered
11499 were not part of "the Works". Furthermore, Clause 12 is directed to conditions on Site. Supply
of goods, materials and equipment to incorporate into the works, in this case river materials
referred to in tender documentation, are at the Contractor's risk. Partial Award Issue 2: There
was no evidence that the activities by third parties which disrupted the works were not
peaceful. Therefore, they did not fall within the definition of disorder under Sub-clauses 65(4)
and 65(5). Furthermore, at the time of the relevant events, the Contractor did not have a legal
right to access the site in question. Final Award: The offer made by the Employer did not
constitute a Calderbank offer because it was made 7 months prior to practical completion and
some 2 years prior to arbitration proceedings, some of the claims had not yet been ruled by
the Engineer and the offer did not coincide with the claim brought to arbitration.
2002 Motherwell Bridge Technology Not Specified Applicatio If the parties had agreed to conduct their relations within the spirit of FIDIC terms but not to Link*
Construction and n of FIDIC be bound by the strict terms, it was appropriate, as regards extensions of time, not to require
Limited (Trading as Construction terms, the Subcontractor to follow the FIDIC procedural time limits. The Subcontractor was entitled
Motherwell Storage Court, England 1.1;11.2;2 to acceleration costs incurred as a result of trying to finish on time when delay was caused by
Tanks) v Micafil and Wales 3;26.1;26. the Contractor.
Vakuumtechnik, 2;31
Micafil AG
2002 Royal Brompton Technology Not Specified - Not Note: The contract in dispute is not a FIDIC contract but there is reference to FIDIC's definition Link
Hospital National and Refer to Specified - of project management.
Health Service Trust Construction Summary Note Refer to
v Hammond & Ors Court, England Summary
and Wales Note
5
Clauses
Cited
2003 ICC First Partial A West African Red, Fourth 67 The Respondent Employer, a State entity, challenged the Arbitral Tribunal’s jurisdiction and Link*
Award in Case Capital Edition, 1987 applied to the local courts for an order revoking the tribunal’s power to hear the dispute,
12048 alleging that the parties had entered into a memorandum of understanding (settlement
agreement) referring disputes to the State courts and that the Claimant had made allegations
of fraud which could only be dealt with by a State court. The court ruled in favour of the
Respondent which considered the arbitral proceedings cancelled. The Claimant appealed and
also proceeded with the arbitration seeking an interim award on certain claims. The tribunal
considered that it had a duty under Article 6(2) of the ICC Rules to consider and decide upon
the matter of its own jurisdiction. It had a duty to ensure that the parties’ arbitration
agreement was not improperly subverted contrary to international and State law. The
tribunal had no jurisdiction to decide upon allegations of fraud. The claims before the
tribunal had been properly brought and the tribunal had jurisdiction over them. However,
the Claimant’s application for an interim award on certain claims was refused.
Note: See Second Partial Award and Final Award below.
2003 A.G. Falkland Supreme Red, Fourth 53; 53.1; The Court was asked to consider FIDIC Clause 53 and to provide interpretation of what Link
Islands v Gordon Court, Falkland Edition, 53.2; constitutes a “contemporary record”. The Court specifically considered whether witness
Forbes Islands Revised 1992 53.3; 53.4 statements can be introduced in evidence to supplement contemporaneous records. The
Construction Court held that in the absence of contemporaneous records to support a claim the claim will
(Falklands) No.2 fail or that part of the claim which is unsupported will fail.
2003 Mabey and Johnson High Court, Red, Fourth No clause Note: The issues in the case related to insurance cover and claims and not to a FIDIC contract Link
Limited v England and Edition 1987 cited per se.
Ecclesiastical Wales
Insurance office Plc
2003 Mirant Asia-Pacific Technology White, Second 17; 18; Note: The central issue between the parties was whether the agreements in dispute Link
Construction (Hong and Edition, 1991 18.1; 21; incorporated the FIDIC terms.
Kong) Ltd and Sual Construction 22; 31;
Construction Court, England 32; 41; 43
Corporation v Ove and Wales
Arup & Partners &
Another
2003 Ove Arup & Court of White, Second 5; 16; 17; Appeal to CA from TCC decision on various preliminary issues. The central issue was whether Link
Partners & Another Appeal, Edition, 1991 18; 21; the relevant agreements incorporated the terms of the 1991 FIDIC Client/Consultant Model
v Mirant Asia- England and 31; 36; Services Agreement. Were the formalities envisaged in FIDIC of completing the blanks in the
Pacific Construction Wales 43; 44; schedules and both parties signing the agreement a necessary pre-requisite to the contract
(Hong Kong) Ltd & being formed?(answer - no). Consideration of the features necessary for the formation of a
Another binding contract and rehearsal of the relevant case law.
2003 SCJ Decision No. Supreme Court Red, Fourth 53.5 The Defendant disputed the amount claimed by the Claimant in respect of interest and the Link
3827/2002 of Justice, Edition, 1987 amount certified in IPCs. The requirements set forth by sub-clause 53.5 were considered by
Romania the court.
2003 ICC Interim Award London, Red, Fourth 1.5; The arbitral tribunal considered the notice provisions in sub-clauses 44.2 and 53.1, the claims Link*
in Case 10847 United Edition, 1.13.4; for extension of time, the claim for additional costs, and the interest on the sums awarded.
Kingdom Revised 1992 1.19.1;
3.3.3;
3.3.4;
3.3.5;
3.3.6; 6.4;
12.2; 14;
44; 44.1;
44.2; 51;
51.1; 53;
53.1;
53.2;
53.3;
53.4;
60.8;
67.3; 69;
69.1; 69.4
6
Clauses
Cited
2004 ICS (Grenada) High Court, Red, Fourth 5; 5.2; The Court declined to set aside an ICC Arbitration Award under the Arbitration Act No 5 of Link
Limited v NH Trinidad and Edition 1987 5.2.4; 8.1; 1939 (Trinidad and Tobago) on the basis that there was no technical misconduct or decision in
International Tobago 11; 11.1; excess of jurisdiction on the arbitrator’s part. The ICC arbitration had considered whether the
(Caribbean) Limited 12; 12.1; Engineer was independent and partial as required by the FIDIC 4th edition, if not whether or
12.2; not the relevant Engineer’s decisions should be reviewed, whether alleged defects were the
20.4; 39; result of poor workmanship by NHIC or faulty design supplied by ICS, and whether NHIC’s
39.1; resulting failure to comply with the Engineer’s instructions under Clause 39.1 was a valid
39.2; cause for ICS’s subsequent termination of the contract under Clause 63.1.
51.2; The Court also found that there were no errors on the face of the award.
52.3; 53; NHIC’s attempt to oust the jurisdiction of the Court to review the Award (under Article 28(6)
53.1; of the ICC Rules) was denied.
53.2;
53.3;
53.4; 63;
63.1; 66;
67;67.3
2004 Mirant-Asia Pacific Technology No Book No Note: No clauses cited and no FIDIC books referred to; only 'FIDIC' terms are mentioned. Link
Ltd & Anor v Oapil and Specified Clauses
& Anor Construction cited -
Court, England Refer to
and Wales Summary
Note
2004 State v Barclay Bros National Court, Red, Fourth 67 An arbitration was commenced and the Claimant sought to restrain the arbitration Link
(PNG) Ltd Papua New Edition 1987 proceedings on the basis of illegality under the contract. The contract was a FIDIC 4th Edition
Guinea and the reference to arbitration was made under Clause 67. The court ordered that the
defendant by itself, its servants or agents or otherwise howsoever, be restrained from taking
any further step in or for the purposes of an arbitration (as amended) commenced by the
Defendant in the International Chamber of Commerce International Court of Arbitration at
Paris.
2004 Rolls-Royce New Court of Conditions of 1; 1.1.12; The case dealt with tortious liability and a limitation clause in a main contract which sought to Link
Zealand Ltd v Carter Appeal, New Contract for 8.1; 19.1; exclude liability for indirect or consequential losses. There was no contract between the
Holt Harvey Ltd Zealand Electrical and 30.1; operator of a power plant and the contractor who was constructing it. The operator brought
Mechanical 30.2; proceedings against the contractor (Rolls Royce). Rolls Royce claimed that there was a duty
Works, third 30.3; owed to the operator and sought to rely on limitation of liability clauses in its contract with
edition, 1987 30.4; its Employer. Rolls Royce sought to argue that it could have no greater liability to a third
30.5; 42; party for defects in the works than it would have to its own employer. The Court of Appeal
42.1; found that while loss to the operator may have been foreseeable as a consequence of any
42.2; negligence by the contractor, the relevant contractual matrix within which any duty of care
42.4; 42.6 arose precluded a relationship of proximity. In addition, in a situation of commercial parties
with an equality of bargaining power, there are strong policy considerations in favour of
holding them to their bargains. In these circumstances, it was not fair, just and reasonable to
impose such a duty.
2004 ICC Second Partial A West African Red, Fourth 47; 53.1; The Engineer issued a decision under Clause 67 accepting in part the Claimant’s claim for Link*
Award in Case Capital Edition, 1987 60.1; payment. The decision became final and binding but went unpaid. In the arbitration, the
12048 60.2; Respondent argued that it was entitled to resist payment of the Claimant’s claims, principally
60.10; 67; because of the Claimant’s alleged liability for counterclaims, thus entitling the Respondent to
67.1; 67.4 a set-off under Clause 60.2. Held: By the tribunal’s First Partial Award it had no jurisdiction
over the alleged counterclaims. Further, Clause 60.2 is inapplicable on its face as it relates
only to the certification of payments by the Engineer and not to decisions of the Arbitral
Tribunal. The Claimant’s claim including interest had been wrongly denominated entirely in
Euros, contrary to the contract and the Engineer’s certificate which involved both local
currency and Deutsche Mark portions. The Claimant was entitled to interest on certified
sums unpaid in accordance with Sub-Clause 60.10.
Note: See First Partial Award above and Final Award below.
2005 ICC Final Award in Bern, Conditions of 18; 18.1; Case about wrongful termination for default under FIDIC Subcontract 1994. Held that Link*
Case 10951 Switzerland Subcontract for 18.3 although subcontractor was liable for delay, defects and other breaches, they were not
Works of Civil enough to justify termination.
Engineering
Construction,
1st edition
1994
2005 ICC Final Award in An Eastern Red, Fourth 20.2; The Arbitral Tribunal addressed costs following alleged failure by a state employer to Link*
Case 12654 European Edition, 1987 20.3; expropriate and evacuate land for the construction of a highway, whether war-related events
Capital 20.4; constituted a "special risk" under clause 65.2 and whether the claimant contractor should be
42.1; compensated under clause 65.5 for increased costs arising from these events, and finally
42.2; whether certain taxes and excises should be reimbursed.
44.1; 65;
65.2; 65.5
7
Clauses
Cited
2005 ICC Partial Award in Geneva, Red, Fourth 51; 63 The Arbitral Tribunal was asked to determine whether (1a) a variation omitting work gave rise Link*
Case 13258 Switzerland Edition, 1987 to a breach of contract; and (1b) whether that was a fundamental breach amounting to
repudiation or giving the Contractor a right of rescission. It held that (1a) the variation was a
breach of contract because it limited the Engineer's authority to omit works if the works are
omitted from the contract but are not intended to be omitted from the project (i.e., because
they are intended to be built by the Employer himself or another contractor). However, the
AT also held that (1b) the breach only gave rise to a claim for damages. The second question
was whether (2) the Employer's breach of an express duty to arrange works with other
contractors other than the contracted Works, (e.g., when the project is divided in lots, or an
implied duty thereto), gives rise to a fundamental breach of a fundamental term of the
contract. The test for fundamental breach in the country relied on conduct being such as
would cause a reasonable person to conclude that the party did not intend to or was unable
to fulfil its contract. The test for England relied on whether the party was deprived of a
substantial part of the benefit of the contract. The tribunal held that neither the terms nor
the breach were fundamental.
2005 Lesotho Highlands House of Red, Fourth 60.1 The erroneous exercise of an available power cannot by itself amount to an excess of power. Link
Development Lords, United Edition, 1987 A mere error of law will not amount to an excess of power under section 68(2)(b).
Authority v Kingdom
Impregilo SpA and
others
2005 Bayindir v Pakistan ICSID Red, Fourth 53; 67.1 The judgement contains the decision on AT's jurisdiction. It was considered, inter alia, Link
(Decision on Edition, 1987 whether the Claimant's Treaty Claims in reality Contract Claims, whether the Treaty Claims
Jurisdiction) were sufficiently substantiated for jurisdictional purposes, and whether the tribunal should
have stayed the proceedings.
2005 State of Orissa and Orissa High Red, Fourth 42.1; The Respondent Contractor was granted extension of time in return for an undertaking that it Link
Ors v Larsen and Court Edition 42.2; would not claim any compensation. After completion, the Respondent issued a notice
Toubro Ltd 53.1; claiming compensation on the grounds that the appellants had failed to comply with their
53.2; obligations and alleging that the drawings and the survey results were incorrect. The parties
53.3; 67.3 referred to arbitration under clause 67.3. The award issued by the arbitrator which awarded
sums to the Respondent was challenged on the grounds that the Respondent had given an
undertaking not to claim compensation. Also, arguing that the amounts awarded by the
arbitrator for additional work was covered by Clause 53.1, 53.2 and 53.3 for which the
contractor failed to issue a 28 days' notice.
2005 Ove Arup & Court of White, Second No Note: Dispute over breach of ground investigation agreement which incorporated the FIDIC Link
Partners Appeal, Edition, 1991 clauses terms.
International Ltd & England & cited -
ANR v Mirant Asia- Wales Refer to
Pacific Construction Summary
(Hong Kong) Ltd & Note
ANR
2006 You One The Supreme Red, Fourth 67.3 - Following the allegedly wrongful termination of the Contract, the Employer commenced Link
Engineering v Court of India Edition Amended arbitration proceedings under the amended clause 67.3 of the contract. The appointed
National Highways arbitrators failed to agree on the presiding arbitrator.
Authority
2006 Hindustan High Court of Red, Fourth 10; 44; The Contractor had to furnish one performance and 17 retention money guarantees. The Link
Construction Co Ltd Delhi, India Edition 60; 67; 70 guarantees were to be returned to the Contractor 12 months after completion. The Employer
v Satluj Jal Vidyut arbitrarily and illegally and without giving any notice to the Contractor invoked all guarantees.
Nigam Ltd
2006 Attorney General Supreme Red, Fourth 2; 3; 67; Concerning the conflict between a FIDIC arbitration clause and a bespoke contractual Link
for Jamaica v Court, Jamaica Edition, 1987 67.3 arbitration clause, of which there were two competing versions, set out in separate
Construction documents but which formed part of the same agreement. The agreement provided that in
Developers the case of “ambiguities or discrepancies” precedence was to be given to the bespoke
Associated Ltd provisions.
The FIDIC condition provided for an ICC arbitration whereas the first version of the bespoke
provision permitted, by agreement between the parties, arbitration to be conducted in a
manner set out in an in accordance with the Arbitration Act of Jamaica. The second version of
the bespoke provision removed reference to the ICC Arbitration or to agreement as between
the parties and stipulated that “[a]arbitration shall be conducted in a manner set out in, and
in accordance with the Arbitration Act of Jamaica”.
2006 ICC Procedural Zurich, Not Specified Not Note: FIDIC was the adjudicator appointing authority. Link*
Order of September Switzerland Specified -
2006 in ICC Case Refer to
14079 Summary
Note
8
Clauses
Cited
2006 ICC Final Award in A West African Red, Fourth 52.1; Governing law was that of a West African state. Re Clause 52.3 for a Contract Price Link*
Case 12048 Capital Edition, 1987 52.2; adjustment where additions and deductions taken together exceed 15% of the Effective
52.3; Contract Price, construing the Clause, the arbitral tribunal held that when the actual
58.1; 60; quantities resulting are less than the original estimate, the purpose is to compensate the
60.10; 67; Contractor for under-recovery of overhead. The Contractor must however demonstrate that
67.1; it was prevented from recovering the jobsite and general overhead costs included in the BOQ
67.3; 70 due to the decrease in actual quantities of work performed. Re entitlement to interest for the
“pre-judgment” period on sums not certified by the Engineer, both the Contract and
applicable law are relevant. The tribunal’s discretionary powers to award pre-judgment
interest were equivalent to those of the courts. Under Clause 67.3, the tribunal could re-open
the Engineer’s certificates and include interest. The rate of interest on unpaid certified sums
in the Contract was also appropriate to such a claim.
Note: See First and Second Partial Awards above
2006 620 Collins Street Supreme Not Specified - Not Note: The contract in dispute is not a FIDIC Contract. FIDIC was used as an example of Link
Pty Ltd v Abigroup Court, Victoria, Refer to Specified - extension of time.
Contractors Pty Ltd Australia Summary Note Refer to
Summary
Note
2007 Nivani Ltd v China National Court, Not Specified- Not Note: Although the dispute is over a sub-contract, reference was made to variations under Link
Jiangsu Papua New Refer to Specified - the main contract.
International (PNG) Guinea Summary Note Refer to
Ltd Summary
Note
2007 National Highways High Court of Red Book, 51.1; The issue was whether the material exceedings the BoQ should be paid at contract rates or at Link
Authority v Som Delhi, India Fourth Edition 51.2; a newly negotiated rate.
Datt Builders 52.1;
52.2;
52.3;
55.1; 60
2007 Jacob Juma v The High Court Not Specified - Not This case is not directly relevant to FIDIC. It only provides a brief explanation of idle time for Link
Commissioner of of Kenya, Refer to Specified - Plant, Machinery and Equipment, as well as labour.
Police Nairobi Summary Note Refer to
Summary
Note
2007 Ahmedabad The income tax Red Book, 48.1 Although mainly about tax, this case provides brief guidance regarding contractor's obligation Link
Vadodara v Income appellate Fourth Edition after the project is fully operational. The court in this case decided that the contractor's
Tax officer tribunal, New obligation extended to a period even after the proect is fully operational.
Delhi, India
2007 General High Court, First Edition, 3.1; 14; Application to set aside a default judgement re non-payment of 2 IPCs. Judgement was set Link
Earthmovers Trinidad and 1999 14.1; aside because there was a realistic prospect of success and that the dispute should have been
Limited v Estate Tobago 14.3; referred to the DAB under clause 20.
Management And 14.6;
Business 14.7;
Development 16.1; 20;
Company 20.4
2007 Avenge (Africa) High Court, Silver, First 4.12; 8.4; This decision relates to an application to compel the production of documents relating to a Link
Limited (formerly Natal, South Edition 1999 11.10 bid for the construction and maintenance of the King Shaka International airport. There is
Grinaker- LTA Africa only a passing mention of FIDIC contract terms.
Limited) and Others
v Dube Tradeport
(Association
Incorporated Under
Section 21) and
Others
2007 Knowman High Court, Red, Fourth 4.1; 59.1 The Sub-contractor was not granted an injunction against termination of a Sub-contract with Link
Enterprises Ltd v Republic of Edition, 1987 the Main Contractor on the grounds that, contrary to the Sub-contractor's argument, it was
China Jiangsu Botswana not a nominated Sub-contractor whose termination would lie within the power of the
International Employer (meaning that the power to terminate remained on the Main Contractor). Judge
Botswana also found that the Sub-contractor had other remedies available such as requesting an order
compelling the Main Contractor to pay, requesting the nullification of the documents or to
sue for the value of the works done so far.
2008 Firma ELSIDI v The Supreme Red, First 20.6 Both parties to the contract were Albanian entities. The question was whether arbitration Link
Department of Court of the Edition, 1999 under sub-clause 20.6 was the appropriate forum for resolving the disputes.
Water and Sewage - Republic of
Civil and Criminal Albania
Decisions October
2008
9
Clauses
Cited
2008 Construction High Court of Red, First 14 - Following the Employer's failure to pay the amount certified in the final payment certificate, Link
Associates (Pty) Ltd Swaziland Edition, 1999 - Amended the Contractor sought summary judgement. The Employer argued that: 1) Parties must refer
v CS Group of Amended to arbitration before referring to a court of law, 2) The Contractor has been overpaid and has
Companies (Pty) Ltd overcharged the Employer in respect of BoQs, and 3) the quality of the workmanship of the
Contractor was poor. The court held that: the Architect/Engineer was the agent of the
Employer when issuing the certificates and the Employer would be bound by the acts of his
agent, 2) the Employer cannot dispute the validity of a payment certificate merely because it
has been given negligently or the Architect/Engineer used his discretion wrongly, 3) there was
no "dispute" between the parties, therefore parties were not obliged to refer to arbitration
prior to the court, 4) the works were inspected prior to the issue of IPCs, therefore there was
no overcharging, and 5) the defect in the workmanship was not identified. The court referred
to the FIDIC guidance on BoQ where it is stated that the object of BoQ is to provide a basis
assisting with the fixing of prices for varied or additional work. The court also considered
whether the obligation to pay the amount in the payment certificate was a binding obligation.
2008 Biffa Waste Technology Red, First 8.7 Note: The Contract in dispute is not a FIDIC contract but provides useful guidance on the Link
Services Ltd & Anor and Edition, 1999 phrase “which sum shall be the only monies due from the Contractor for such Default".
v Maschinenfabrik Construction
Ernst Hese GmbH & Court, England
Ors and Wales
2008 National Highways High Court of Not Specified - Not The question was whether it would be the Employer or the Contractor who would be Link
Authority of India v Delhi, India Refer to the Specified - responsible for the cess imposed by the government. The contract between the parties was
M/S Afcons Summary Note Refer to not based on FIDIC. However, reference was made to FIDIC which allows for, inter alia,
Infrastructure the reimbursement of increase in the works tax.
Limited Summary
Note
2008 ICC Interim Award Zurich, Red, First Red 1999: The Arbitral Tribunal decided that referring a dispute to adjudication is a mandatory step Link*
in Case 14431 Switzerland Edition, 1999 3.4; 20; before referring to arbitration. It was also found that submission of an unsigned draft of a
and Red, 20.2; formal letter is insufficient to inform intention to invoke the DAB unless the draft is later
Fourth Edition, 20.4; confirmed to be the final version. The arbitration proceedings were stayed to allow parties to
Revised 1992 20.6; refer their dispute to adjudication.
20.8. Red,
1992: 67;
67.1; 67.3
2008 Braes of Doune Technology Silver, First 1.4.1; 8.4; The Court was asked to consider enforceability of clauses in an Engineering, Procurement and Link
Wind Farm and Edition,1999 8.7; 20.2; Construction Contract which provided for liquidated damages for delay. The Claimant
(Scotland) Ltd v Construction 20.2.2 (Employer) and Defendant (Contractor) had contracted for the construction of 36 wind
Alfred McAlpine Court, England turbine generators in Stirling in Scotland. The Claimant contended that the juridical seat of
Business Services and Wales the arbitrator was England whereas the Defendant contended it was Scotland. The Claimant
Ltd sought leave to appeal an award made by an arbitrator whilst the Defendant sought a
declaration that the Court in England and Wales did not have jurisdiction to grant the
Claimant’s application and to enforce the award as made.
2009 Bayindir v Pakistan ICSID Red, Fourth 63.3; The ICSID tribunal was constituted to make a decision on jurisdiction. The parties' main Link
Edition, 1987 67.1; 67.4 dispute involved the termination of the contract.
2009 Hutama-RSEA joint Supreme First Edition, 20.4; The parties failed to appoint a DAB. Following disputes involving payment of outstanding Link
Operations, Inc. v. Court, Manila, 1999 - No Book 20.5; balance, the Claimant sought to commence arbitration (CIAC Arbitration). The Respondent
Citra Metro Manila Republic of the specified, 20.6; disputed the jurisdiction of the AT arguing that reference to arbitration was immature
Tollways Philippines similar 20.7; 20.8 because parties failed to comply with sub-clause 20.4. AT rejected the Respondent's
Corporation provisions argument and ruled that it had jurisdiction. The Respondent appealed, the court held that AT
did not have jurisdiction as a result of failure to comply with 20.4. The Claimant appealed, and
this time the court held that although reference to DAB is a condition precedent, AT is not
barred from assuming jurisdiction over the dispute if 20.4 has not been complied with. The
fact that parties incorporated an arbitration clause was sufficient to vest the AT with
jurisdiction. This rule applies regardless of whether the parties specifically choose another
forum for dispute resolution. NOTE: It was highlighted in the judgement that this is NOT the
case wherein the arbitration clause in the construction contract names another forum, not
the CIAC, which shall have jurisdiction over the dispute between the parties, rather the said
clause requires prior referral of the dispute to DAB.
10
Clauses
Cited
2009 National Highways High Court of Red, Fourth 2.6; 49; The High Court of Delhi heard an appeal of a lower court’s judgment regarding objections Link
Authority of India v Delhi, India Edition, 1987 51; 51.1; under s 34 of the Arbitration and Conciliation Act to the award of an Arbitral Tribunal. The
Som Datt Builders 51.2; 52; originally estimated quantity of a BOQ item had been exceeded by nearly three times. There
& ORS 52.1; had been no instruction from the Engineer. The Employer considered that a variation existed
52.2; and that under the contractual terms where actual quantities had exceeded the tolerance
52.3; limits set out in the Contract, the Engineer was entitled to seek renegotiation of the rate for
55.1; the additional quantities. The Contractor disagreed that there had been a variation and that
55.2; 67; any re-negotiation was required. The arbitral tribunal found for the Contractor. The High
67.3 Court held that the arbitral tribunal had erred in its findings and the award and the lower
court’s order were both set aside.
2009 National Highways High Court of Red, Fourth 54.1; The High Court of Delhi considered whether the Employer could keep Contractor’s Equipment Link
Authority of India v Delhi, India Edition, 1987 60.7; 63.1 after termination when such equipment was hired by the Contractor from a third party as
M/S Youone opposed to owned by him. The judge held that the third party could approach the Arbitral
Maharia JV (1 July Tribunal to consider the question.
2009) Note: See below for the appeal at National Highways Authority of India v M/S You One
Maharia JV (21 September 2010).
2009 National Insurance High Court, Red, First 2.5; Three questions posed by the Arbitrator were decided: Link
Property Trinidad and Edition, 1999 11.10; 1. Contemporary records means in clause 20.1, records produced at the time of the event
Development v NH Tobago 13.5; giving rise to the claim whether by or for the contractor or the employer?
International 16.4; 2. Where there are no contemporary records the claim fails?
(Caribbean) Limited 19.6; 3. The independent quantity surveyor’s term of reference override the express provisions of
20.1; 53 the clause 20.1 and permit the contractor to advance its claims without contemporary
of FIDIC records?
Red Book Note: Under sub-clause 20.1 the contractor is obliged to keep records which would enable the
Fourth engineer to investigate and substantiate the contractor's claims.
Edition
2009 National Highways High Court of Not specified 51; 51.1; This is a decision regarding a petition under Section 34 of the Indian Arbitration and Link
Authority of India v. Delhi, India 51.2; 52; Conciliation Act 1996 seeking the setting aside of an arbitral award which related to the
M/S ITD 52.1; 52.2 rehabilitation of a road in India. The judge reviewed the arbitral tribunal's decisions on each
Cementation India issue, including amounts payable for varied work under Clause 51.1, 51.2, 52.1 and 52.2 of
LTD (Formerly M/S the FIDIC general conditions, payment due on account for a re-design, payment due on
Skansk) account of change in thickness of a layer of carriageway, reimbursement of increase in royalty
charges and interest. In summary, the judge found that the arbitral tribunal's decisions on
each issue were reasonable and plausible and therefore upheld them (with one exception
where the judge ordered a reduced amount payable). Note: Provides guidance on rate of
interest.
2009 Russian case - 1 Court of Red, First 8.4; 20.1; Contractor was granted extension of time as a result of unforeseeable ground conditions that Link
Supreme Edition, 1999 20.4 were not identified in the tender documents or the drawings provided by the Employer, as
Supervision, well as delay in the payment by the Employer and suspension of the works. There was no DAB
Russia appointed by the parties in this case and the dispute was referred to the court which
eventually ruled in favor of the Contractor. (Lucas Klee, International Construction Contract
Law, pp 186-189, Claims in the St Petersburg flood protection barrier construction by Aleksei
Kuzmin)
2010 Russian case - 2 Court of Red, First 11 (Please refer to Russian Case - 1) The Employer claimed damages as a result of alleged defects Link
Cassation, Edition, 1999 and delay in completion of the works caused by the Contractor and refused to pay the
Russia Contractor. The Court rejected the Employer's claim and held that as a requirement of
Russian law, damages must be proven with substantial evidence and the pre-estimate of
damages as mentioned in FIDIC (Russian Translation) is likely to be a penalty and not
recognised by Russian law.(Lucas Klee, International Construction Contract Law, pp 186-189,
Claims in the St Petersburg flood protection barrier construction by Aleksei Kuzmin)
2010 Russian case - 3 Court of Not Specified Not There was a dispute between the Contractor and the Sub-contractor regarding the sums due Link
Appeal, Russia Specified to the Sub-contractor. The Sub-contractor argued that by signing forms KS-2 and KS-3 (which
are accounting forms used in construction in Russia), the Contractor had accepted the works.
The Contractor, however, argued that the sums due to the Sub-contractor had to be reduced
because the additional works were not agreed to and liquidated damages were allegedly
owed to the Contractor. The Court decided that the time for completion was not stated in the
contract as required by Russian law which provides that time for completion must either be
specified by a calendar date or through an inevitable event. As a result there was no contract
formed between the parties and the Contractor had to pay the Sub-contractor and return the
retention money. However, the amount of interest claimed by the Sub-contractor was
reduced by the Court as there was no basis for claiming such interest in Russian law. (Lucas
Klee, International Construction Contract Law, pp 186-189, Claims in the St Petersburg flood
protection barrier construction by Aleksei Kuzmin)
2010 ICC Procedural An Eastern Red, First 20 The contract between the Parties was based on FIDIC. However, this Procedural Order deals Link*
Order in Case European City Edition, 1999 with the grant of interim measures by the Arbitral Tribunal. The Claimant sought an interim
15956 measure in accordance with Article 23(1) of the ICC Rules of Arbitration and suspension
pending the final determination of merits of the dispute.
11
Clauses
Cited
2010 ICC Partial Award in An Eastern Red, First Red: 20.4; DAB decisions are binding and must be given effect to by the parties but an Arbitrator cannot Link*
Case 16119 European Edition, 1999 20.5; grant a partial award determining the matter with finality because the nature of a DAB
Capital and Gold, First 20.6; decision is temporary.
Edition, 2008 20.7;
20.8.
Gold:
20.8; 20.9
2010 ICC Partial Award in London, Yellow, First 1.5; 1.6; The meaning of DAB “in place” in Sub-Clause 20.8 is validly appointed; those words do not Link*
Case 16262 United Edition, 1999 20; 20.2; require that the dispute adjudication agreement between the parties of the DAB has been
Kingdom 20.3; executed.
20.3;
20.4;
20.5;
20.6;
20.7; 20.8
2010 ICC Partial Award in An Eastern Red, First 2.5; 3.5; The Arbitral Tribunal found that when the DAB has decided on termination of the contract, Link*
Case 15956 European City Edition, 1999 4.19; the employer is entitled to claim for extra costs of completion of the works in arbitration.
4.20; It also decided that where the employer refused to sign the DAA within 42 days from the
14.12; commencement date, the DAB was validly appointed solely by the contractor.
15.2;
15.3;
15.4; 20;
20.3;
20.4;
20.5;
20.6;
20.7; 20.8
2010 National Highways High Court of Not Specified Refer to In considering an Arbitral Tribunal's award under Section 34 of the Arbitration & Conciliation Link
Authority of India v Delhi, India Summary Act of India 1996, the High Court of Delhi found that a sub-clause, which allowed the Engineer
Unitech-NCC Joint Note to correct ambiguities or errors if the Contractor discovered any in the Drawings or other
Venture (8 March Contract Documents, permitted the Engineer and the Arbitrator to correct a sub-clause that
2010) contained an error that resulted in an inconsistency with other contract provisions.
Note: This case considers the scope of an amended FIDIC 4th Edition Sub-clause 5.2.
Therefore, the differences between the FIDIC and the amended sub-clauses may allow for
differences in interpretation. See below for appeal.
2010 National Highways High Court of Not Specified Refer to The High Court of Delhi dismissed the appeal of National Highways Authority of India v Link
Authority of India v Delhi, India Summary Unitech-NCC Joint Venture (8 March 2010) on the same terms as the appealed judgement.
Unitech-NCC Joint Note Note: Go to 8 March 2010 judgement above for more details.
Venture (30 August
2010)
2010 National Highways High Court of Red, Fourth 1.1; 54.1; On Appeal, the High Court of Delhi held that the Employer was entitled to retain and use the Link
Authority of India v Delhi, India Edition, 61; 61.1; Contractor’s Equipment brought to site after the Contractor had been expelled under an
M/S You One Revised 1992 63.1, amended FIDIC 4th Sub-clause 63.1. It was held that the Contract made no distinction
Maharia JV (21 63.1(4) between equipment owned by the Contractor and equipment hired or otherwise not owned
September 2010) by it.
Note: Even though Sub-clause 63.1 of FIDIC 4th is amended, the decision is still useful in
interpreting the standard form. See above for appealed judgement.
2010 ICC Interim Award Paris, France Red, First 20.1; Claimant gave only notice of claim under 20.1. No material was provided in support of claim, Link*
in Case 16155 Edition, 1999 20.2; despite the Engineer's request. Accordingly, there was no Engineer's determination. The
20.4; Claimant requested a joint appointment of a DAB which went unanswered. The Claimant
20.6; 20.8 referred the dispute to arbitration and Respondent contested jurisdiction for want of an
Engineer's determination and a DAB's decision. The Contract was terminated. The Arbitral
Tribunal found that despite a failure to submit claim information, there was nothing in the
Contract to prevent the Claimant from proceeding to the next step of the dispute resolution
procedure. Failure to substantiate a claim did not prevent the contractor from referring the
dispute to arbitration. The contractor was entitled to refer the dispute to arbitration because
there was no DAB in place.
2010 ICC Final Award in An Eastern Red, Fourth 5.2; 9; Release of retention after a 12-month defects period was found to be compatible with a Link*
Case 15789 European Edition, 1987 48.1; statutory 5-year warranty period.
Capital 48.2; 49;
49.1; 50;
60.3; 64.1
12
Clauses
Cited
2010 State Of West High Court, Red, Fourth 53.1; Application to the High Court of Calcutta pursuant to section 34 of the Indian Arbitration and Link
Bengal vs Afcons Calcutta Edition, 1987 53.2; Conciliation Act 1996 for the setting aside of an arbitral award. Requirement in section 28(3)
Infrastructure Ltd 53.3; of that Act for the arbitral tribunal to decide in accordance with the terms of the contract and
53.4; in section 31(3) of that Act for arbitral tribunal to give reasons for its award. Failure by the
53.5; 67.3 arbitral tribunal to give reasons. Award set aside.
2010 ICC Final Award in An Eastern Red, Fourth 7.2; 51; Claim time-barred under 4th Edition clause 67.1 where Engineer gave no decision within 84 Link*
Case 15282 European Edition, 1987 52; 52.1; days and notice of intention to arbitrate was received a week later than 70 day limit. Another
Capital 52.2; 53; claim for a variation was also time-barred when the 14-day notice period under clause 52.2
53.1; and the 28-day notice period under clause 53 were both missed. A notice posted on the last
53.3; day of a time-limit and received after the deadline was held to be too late.
53.4; 67;
67.1
2010 National Highways High Court of Red, Fourth 1.1(f)(v); During the course of the project, it was found that the bank guarantees provided by the Link
Authority v M/S Delhi, India Edition, 1992 54.1; 61; contractor were forged and fabricated. As a result, the employer terminated the contract and
You One Maharia 61.1; sought to exercise its rights to seize equipment that was brought to the site by the contractor.
63.1(4)
2010 PT Perusahaan Gas High Court, Red, First Red Persero 1 - DAB enforcement - High Court set aside a final ICC award enforcing a binding but Link*
Negara (Persero) Singapore Edition, 1999. (1999): not final DAB decision on the basis that the failure to pay did not go to the DAB prior to
TBK v CRW Joint Red, Fourth 20; 20.4; arbitration.
Operation Edition. Gold, 20.5;
First Edition, 20.6;
2010 Cybarco PLC v Supreme Red, First 1.6 The case concerned contradicting terms between the letter of tender under which the Link
Cyprus (Case Nos. Court, Cyprus Edition, 1999 contractor was responsible for payment of stamp duty and the clause 1.6 of the contract
543/2008 and where the employer is responsible.
544/2008)
2010 ICCJ Decision No. Romania High Yellow, First 3.1; 3.2; Following a court order requiring a revision of the tender awarding criteria and the technical Link
3639/2010 court of Edition 1999 and financial proposals, the Defendant invited bidders to submit new tenders for works which
Cassation and overlapped with workst under the first tender. It was assumed that the second public
Justice procurement was organised to circumvent the consequences of the judgement. Following an
action by the claimant, the court compared the provisions and extent of obligations under
both contracts, one being based on the FIDIC Yellow Book. The court decided that the duties
are almost identical to the obligations under the FIDIC Yellow Book. It was also found that
organisation of the second tender was likely to harm the legitimate interests of the claimant
for services already in proceedings for which the claimant had a real chance of winning.
Therefore, the claimant's appeal to annul an award for cancellation of the tender procedure
was rejected.
2010 ICC Interim Award Paris, France Silver, First 20; 20.2; The Arbitral Tribunal considered the law governing the dispute resolution clause where the Link*
in Case 16083 Edition, 1999 20.3; parties had not chosen an applicable law to the arbitration agreement but had agreed on the
20.4; seat of arbitration.
20.5; Also, the tribunal found that the parties’ conduct confirmed that neither party considered
20.6; DAB to be an essential step prior to referring disputes to arbitration.
20.7; 20.8
2010 Francistown City The High Court Red, Fourth 63; 63.1 The Court considered an application to set aside an arbitrator’s decision on the basis that he Link
Council v Vlug and of Botswana Edition, 1987 dealt with matters not submitted to him and went beyond the parameters of the parties
Another submission in making his decision. The material contract was subject to the Red Book FIDIC
4th Edition (1987).
2010 ICC Final Award in Singapore Orange, First 1.1.5.6; Final payment certificate “agreed” by Employer’s Representative did not bind the Employer as Link*
Case 16205 Edition, 1995 13.1; the ER had no authority to reach the agreement. Findings in relation to Employer’s liability for
13.3; taxes, financing charges, overheads and exchange rate losses.
13.8;
13.11;
13.13;
13.16
2011 ICCJ Decision No. Romania High Yellow, First 1.4; 4.4; The Contractor was found to be in breach of the general and particular conditions in sub- Link
2473/2011 court of Edition, 1991 clause 4.4, by sub-contracting the works to 14 sub-contractors (13 of whose value did not
Cassation and exceed 1% of the total contract value) without the engineer's prior and express consent.
Justice Also, the fact that another language than that specified in sub-clause 1.4 was used, did not
give rise to the documents being null and invalid.
2011 ICCJ Decision No. High Court, Red, Yellow 13.8; The parties to the contract had a dispute regarding the reference date for determining the Link
287/2011 Romania and Green 20;20.2; RON to EURO exchange rate. This dispute was settled by arbitration. However, one of the
Book parties issued proceedings claiming that the arbitrator's decision should be set aside because
(1) the dispute was not capable of settlement by arbitration, (2) the arbitration agreement
was not valid, (3) the arbitration award violated mandatory provisions of law. The appeal was
rejected. The court decided, inter alia, that the arbitration agreement was valid and met the
basic requirements for validity (capacity, consent and specific object). FIDIC Red, Yellow and
Green Books were introduced into the Romanian Legislation by Order No.915/2008.
13
Clauses
Cited
2010 ATA Construction, ICSID Red, Fourth 67 An ICSID arbitration concerning the validity of the annulment by Jordanian court of an Arbitral Link
Industrial & Trading Edition, 1987 Award rendered in favour of the Claimant.
Company v
Hashemite
Kingdom of Jordan
(18 May 2010)
2011 ATA Construction, ICSID Red, Fourth 67 - Refer The issue between the parties were whether the final award extinguished the Arbitration Link
Industrial & Trading Edition, 1987 to the Agreement under Jordanian Law, whether the Arbitration Agreement can be restored and
Company v Summary whether the application meets the requirements for an ICSIC Article 50 post-award
Hashemite Note interpretation.
Kingdom of Jordan
(7 March 2011)
2011 ATA Construction, ICSID Red, Fourth Not This case involved a conditional application for partial annulment of 18.05.2010 Award Link
Industrial & Trading Edition, 1987 Specified - granted if the Tribunal were to adopt ATA's interpretation. Following the rejection of ATA's
Company v Refer to interpretation, the Applicant sought to terminate the proceeding and claimed all the costs in
Hashemite the connection with it.
Kingdom of Jordan Summary
(11 July 2011) Note
2011 ICC Final Award in An Eastern Red, First Red 1999: Enforcement of DAB decision without consideration of merits: the Arbitral Tribunal held that Link*
Case 16948 European Edition, 1999 20; 20.1; non-payment amounts to breach of contract and a new dispute. Referring non-payment back
Capital and Red, 20.4; to the DAB for a Decision made the Employer liable for damages for breach of contract plus
Fourth Edition 20.5; interest.
1987 20.6;
20.7. Red
1987: 67
2011 CRW Joint Court of Red, First 20; 20.4; Persero 1 - DAB enforcement - Court of Appeal upheld High Court's decision which set aside Link
Operation v PT Appeal, Edition, 1999 20.5; the final award on the basis that the merits were not before the tribunal. They want on to
Perusahaan Gas Singapore 20.6; state that as long as the merits are placed before the arbitral tribunal, in principle, an interim
Negara (Persero) 20.7; 20.8 or partial award enforcing a binding DAB's decision should be possible. Note: This case makes
TBK reference to the Interim Award in ICC Case 10619 in relation to clause 67.1.
2011 State of West High Court, Red, Fourth 53; 53.1; This was an application to the court under Section 34 of the Indian Arbitration and Link
Bengal v. Afcon Calcutta Edition, 1987 53.2; Conciliation Act 1996 seeking the setting aside of an arbitral award on the grounds of
Infrastructure Ltd 53.3; illegality. The petitioner argued that the contractual procedure for claims was not followed
[January 2011] 53.4; 67.3 but the court rejected this argument because sub-clause 53.4 of the contract permitted an
arbitral tribunal to assess a claim based on verified contemporary records even if they were
not previously placed before the Engineer. The court thus dismissed the application to set
aside.
2011 Progressive High Court, Red, Fourth 6.1(b); This case involved an application for injunction restraining the respondent from invoking the Link
Construction Ltd v Andhra Edition 9.5.1; performance bank guarantee. The right of the employer to expel the contractor from the site
Louis Berger Group 9.5.4; was also considered in this case.
Inc. & Others 10.1; 63.1
2011 Uniphone Court of Orange, First Refer to The court considered the default in payment under the deed of assignment executed by the Link
Telecommunication Appeal, Edition, 1995 Summary defendant.
s Berhad V Malaysia Note Note: The Deed of Assignment refers to the FIDIC terms.
Bridgecon
Engineering
2011 Tanzania National Court of Red, Fourth Not As a result of disputes between the parties, the Contractor commenced proceedings seeking Link
Roads Agency v Appeal at edition Specified - to restrain the Employer from making demands on the guarantees executed or repossessing
Kundan Singh Mombasa Refer to any assets and machinery. The Employer also commenced proceedings seeking to enforce the
Construction Summary guarantees and recover damages for breach of contract. The court held that the suit
Limited and Note commenced by the employer raised similar issues as the first suit and therefore the
Another proceedings must be stayed pending the ruling of the superior court in the first suit. The
employer appealed against the decision arguing that the issues under the two proceedings
are different.
2011 State of West High Court, Red, Fourth 53.1; This was an appeal to the High Court at Calcutta. The appellants argued that an arbitral Link
Bengal, Public Calcutta - Edition, 1987 53.2; award, which had been upheld by a trial judge, was opposed to public policy being in
Works (Roads) Appeal against 53.3; contravention of Sections 26(3) and 31(3) of the Indian Arbitration and Conciliation Act 1996
Department v. Judgement on 53.4; as the Arbitral Tribunal had failed to adjudicate the dispute in terms of the FIDIC contract
AFCONS 06.01.2011 53.5; 60; between the parties. The High Court found that the point for consideration in the appeal was
Infrastructure Ltd 67.3 whether the arbitral tribunal and consequently the trial judge committed any error in law
[September 2011] while upholding the claim partially. The High Court reviewed each of the heads of claim and,
apart from one claim, upheld the claims awarded by the Arbitral Tribunal and the trial judge.
2011 Swiss Civil Court First Civil Law Red, First 18.3; 20 The court examined whether pre-arbitral steps were mandatory before commencing Link
decision Court, Edition 1999 arbitration and considered the possible consequences of failure to follow the multi-tier
4A_46/2011 Switzerland dispute resolution procedure.
14
Clauses
Cited
2012 R.A Murray Supreme Court First Edition, Not Although the contract between the parties was based on FIDIC, the issues in this case are not Link
International Ltd v of Judicature 1999 specified relevant to FIDIC. The case involves removal of an arbitrator as a result of misconduct.
Brian Goldson of Jamaica
2012 ICC Partial Award in An Eastern Yellow, First 15.3; The Arbitral Tribunal considered the effect of statute of limitation in relation to claims Link*
Case 16570 European Edition, 1999 15.4; referred to arbitration. The constitution of the DAB was also considered in this case.
Capital 16.3;
16.4;
20.2;
20.3;
20.4;
20.5;
20.6;
20.7; 20.8
2012 Kmc Construction The income tax Fourth Edition - 20.1;20.2; The issue in this case is not relevant to FIDIC. The issue in the case is related to sales tax Link
Ltd, Hyderabad v appellate Refer to 20.3 - refund. The FIDIC contract that one of the parties had entered into was considered by the
Department of tribunal, New Summary Note Refer to court and the duty of the Contractor after the handing over of the site was mentioned in
Income Tax Delhi, India Summary passing.
Note
2012 Esor Africa (Pty) Ltd South Gauteng Red, First 20; 20.4; In this matter the Court was asked to consider an application for payment under two Link
/Frankl Africa (Pty) High Court, Edition 1999 20.6; Engineer’s Progress Certificates where the Defendant did not dispute the validity of the
Ltd Joint Venture v Johannesburg, Refer to certificates but had presented a counterclaim based on a third Engineer’s Progress Certificate.
Bombela Civils Joint South Africa Summary The Plaintiff disputed the counterclaim but stated that it was agreed the matters in dispute
Venture (Pty) Ltd Note were to be referred to the Dispute Adjudication Board for adjudication and if either party was
dissatisfied with the decision to arbitration for final determination.
The Court in this instance postponed the plaintiff’s application pending the finalisation of the
proceedings before the Dispute Adjudication Board or Arbitration
Note: Unreported - This case was also considered in Stefanutti Stocks (Pty) Ltd v S8 Property
(Pty) Ltd.
2012 ICC Final Award in An Eastern Red, First 1.2; 20.2; The parties' poor drafting of the DAB agreement led to disputes as to whether the DAB was ad Link*
Case 18096 European Edition, 1999 20.4; 20.6 hoc or permanent and consequently a dispute on Dispute Adjudication Agreement's
Capital termination.
2012 Abbas & Hayes (t/a High Court, Conditions of No In this case the Court considered what the consequences for a party bringing legal Link
A H Design) v Northern Sub-contract clauses proceedings where they have disregarded a dispute resolution scheme provided for in the
Rotary Ireland for Works of cited - contract as between the parties in dispute.
(International) Ltd Civil Refer to The Court stated that where the scheme is sufficiently certain so as to be enforceable it may
Engineering Summary result in a stay of Court proceedings. Further, that where provision for a scheme has been
Construction, Note made in the contract the burden in on the litigating party to show why the agreed method for
First Edition, dispute resolution should not operate.
1994 The clause in this case allowed for adjudication in accordance with a separate sub contract
which is an amended form of the FIDIC conditions of subcontract for works of civil
engineering construction 1st Edition (1994). The Court also considered how to interpret the
clause where the drafting had been imperfect.
2013 ICC Final Award in An Eastern Yellow, First 10.2; (1) Whether a Notice of Dissatisfaction (NoD) needs to set out the reasons of the Link*
Case 18320 European Edition, 1999 16.1; dissatisfaction. The Respondent had identified the letter as a Sub-clause 20.4 NoD and listed
Capital 16.2; 20; out the matters in dispute but did not include the reasons of the dissatisfaction. The Arbitral
20.4; Tribunal held that the reasons were not necessary for the notice to be compliant. Sub-clauses
20.5; 20.4 and 20.7 do not provide that failing to set out the reasons renders the notice void or non-
20.6; 20.7 existent. The notice must be “expressly defined or at least unambiguously identifiable as
such”, i.e., be titled Notice of Dissatisfaction under Sub-clause 20.4 and identify the claims the
party wishes to bring to Arbitration. The Arbitral Tribunal also held in obiter that even the
party who did not submit a NoD may rely on it to raise the dispute to Arbitration. (2) Whether
the Arbitral Tribunal can order the Respondent to comply with Sub-clause 20.4 and pay a
binding DAB decision without looking at the merits of the dispute. The Arbitral Tribunal held
that, whereas the binding effect of a DAB decision is not lost when a NoD is served, if any of
the parties dispute the decision during the Arbitration, it cannot be given effect without
considering the merits. However, the binding nature of the decision means the affected party
may request contractual or legal remedies for failure to comply or even the provisional
performance of the decision by way of an interim award or measure.
2013 ICC Final Award in An Eastern Yellow, First 2.5; 3.5; Final award by an arbitral tribunal relating to a dispute over a waste water treatment plant. Link*
Case 16765 European Edition, 1999 5.2; 20.1; The tribunal found that a counterclaim by the employer for delay damages was inadmissible
Capital 20.4 because the employer had not previously given notice of the claim, referred it to the engineer
or referred it to the DAB. The tribunal dismissed claims by the contractor for an extension of
time and additional cost because the contractor had failed to comply with the notice
provisions in sub-clause 20.1.
15
Clauses
Cited
2013 ICC Final Award in Paris, France Red, First 1.4; 4.2; The Arbitral Tribunal decided that it had exclusive jurisdiction to rule on objections to its Link*
Case 17146 Edition, 1999 20.4; jurisdiction. When the Arbitration Clause does not contain any specific choice of law the
20.6; 20.8 arbitrator considered that the arbitration clause should be interpreted pursuant to three
generally accepted principles. On the issue of validity of the arbitration clause, the arbitrator
considered the criteria set out in Article II(1) of the New York Convention and considered that
the only important question is whether the parties in fact intended to resort to arbitration
and if so, which parties and for which types of dispute. The arbitral institution was decided to
be ICC when there was no evidence that the parties ever discussed any other institution. It
was also decided that the European convention can in certain circumstances govern all stages
of arbitration.
2013 National Insurance Court of Red, First 2.4; 3.5; The proper construction of clause 2.4. Held that the arbitrator was mistaken in thinking that Link
Property Appeal, Edition, 1999 8.3; 14; evidence of Cabinet approval was needed to satisfy clause 2.4 in the light of the assurance
Development Trinidad and 14.6; and the arbitrator was effectively demanding the highest standard rather than reasonable
Company Ltd v NH Tobago 14.7; 16; evidence of assurance.
International 16.1;
(Caribbean)Limited 16.2;
20.6; 26;
30
2013 Sedgman South Supreme Silver, First 1.3; 2.5; The Supreme Court of Queensland analysed the meaning of sub-clause 14.6 of FIDIC’s Silver Link
Africa (Pty) Limited Court, Edition 1999 3.5; 11.4; Book and, in particular, what was meant by the words ‘payments due’. Sedgman contracted
& Ors v Queensland, 13.3; to design and construct parts of the Boseto Copper Project in Botswana for Discovery Copper.
DiscoveryCopper Australia 13.7; 14; The contract was under an amended FIDIC Silver Book. Sedgman applied for an interim
Botswana (Pty) 14.3; payment of USD 20 million. Sub-clause 14.6 (as amended) required Discovery Copper to give
Limited 14.4; notice within 7 days if they disagreed with any items in the application for payment.
14.6; Discovery Copper failed to give the notice and did not contest the application until 14 days
14.7; later. Sedgman applied to the Court for payment of the sum claimed.
14.9; The Court dismissed Sedgman’s application for payment, holding that there was a genuine
14.10; dispute and that Sedgman’s interpretation of the contract was incorrect. The Court held that:
14.11; 20; ‘This contract did not entitle the applicants to be paid the sum which they now claim, simply
20.4 from the fact that there was no response to their interim claim within the period of seven
days stipulated in the contract.’
McMurdo J considered the words ‘payments due shall not be withheld’ at sub-clause 14.6 of
the contract. The Judge stated that these words were ‘different from saying that a payment
will become due if a notice of disagreement is not given,’ as Sedgman contended. The Judge
then held: ‘The alternative view of sub-clause 14.6 is that it does not make a payment due.
Rather, it governs payments which, by the operation of another term or terms, have [already]
become due.’ The Judge, in his reasoning, stated that that operation of the various clauses of
the contract to determine claims and variations could otherwise be displaced by the
operation of sub-clause 14.6, if Sedgman were correct. If the contractor included a claim in his
application for payment which was inconsistent with, for example, a DAB’s determination,
and the employer did not give notice of disagreement, the outcome would be that the DAB’s
determination would be displaced.
2013 Johannesburg High Court, Not Specified Not FIDIC mentioned in passing only. A procedural decision setting aside a default judgement. Link
Roads Agency (Pty) North Specified
Ltd v Midnight Gauteng,
Moon Trading 105 Pretoria, South
(Pty) Ltd and Africa
Another
2013 Doosan Babcock v Technology Red, First 4.2; 10; There was no DAB in place, therefore parties were entitled to refer the dispute directly to Link
Comercializadora and Edition, 1999 20.2; arbitration. There was also an additional claim regarding performance guarantee under
De Equipos y Construction 20.4; 20.8 clause 4.2 which was replaced by the parties. The case concerned the Claimant’s application
Materiales Mabe Court, England for an interim injunction to restrain the Defendant from making demands under two “on
11/10/13 and Wales demand” performance guarantees. In doing so, the Claimant argued that the Defendant has
11/10/13 wrongfully failed to issue a taking-over certificate. The Claimant contended that they had a
strong claim that demand for payment would constitute breach of contract as the Defendant
had failed to issue Taking Over Certificates for plant that had been taken in to use by the
Defendant. The contract between the parties was based on the FIDIC form with some
modifications including the deletion and replacement, in its entirety, of clause 4.2 concerning
Performance Security.
2013 State Of West High Court, Red, Fourth 12.1; This was an application to the High Court of Calcutta pursuant to Section 34 of the Indian Link
Bengal vs Afcons Calcutta Edition, 1987 12.2; Arbitration and Conciliation Act 1996 for the setting aside of an arbitral award. The
Pauling (India) Ltd 53.1; underlying dispute related to a road improvement contract which incorporated FIDIC
53.2; conditions. The court set aside the arbitral award on the basis that it conflicted with Indian
53.3; public policy because it was not decided in accordance with the contract and was not based
53.4; on cogent evidence.
53.5; 67.3
2013 Man Enterprise v Al- Technology Red, Fourth 67 Right of Contractor to start arbitration where Employer fails and refuses to appoint a new Link
Waddan Hotel and Edition, Engineer; no need to wait the 84 days.
Construction Revised 1992
Court, England
and Wales
16
Clauses
Cited
2013 Stefanutti Stocks High Court, Red, First 20; 20.4; This is not a FIDIC case but referred to the case of Esor Africa (Pty) Ltd/Franki Africa (Pty) Ltd Link
(Pty) Ltd v S8 South Edition, 1999 20.6; JV and Bombela Civils JV (Pty) Ltd, SGHC case no. 12/7442. In Esor the parties had referred a
Property (Pty) Ltd Gauteng, Refer to dispute to the FIDIC DAB under clause 20.4 of the FIDIC Conditions of Contract. The DAB gave
Johannesburg, Summary its decision which was in favour of the contractor. The employer refused to make payment
South Africa Note relying on the fact that it had given a notice of dissatisfaction and the contractor approached
the Court for an order compelling compliance with the decision. Spilg J held 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…” (at para 12 of the judgment). 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 at para 14 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.”
2013 ICC Final Award in An Eastern Yellow, First 20; 20.1; (1) The Arbitral Tribunal held that a Claimant does not need to refer the dispute to DAB Link*
Case 18505 European Edition, 1999 20.2; before referring to Arbitration. The circumstances by which a DAB is not in place which trigger
Capital 20.3; Sub-clause 20.8 (i.e., the dispute may be raised to arbitration without the need for a DAB
20.4; decision or amicable settlement) are not limited to those similar to the expiry of the DAB’s
20.5; 20.8 appointment. In addition, a party cannot rely on its own refusal to sign a DAB agreement to
argue that the Arbitral Tribunal has no jurisdiction because the other party has not complied
with the dispute resolution procedure under Sub-clause 20.1. A party cannot justify its refusal
to sign the DAB agreement by stating that the dispute has not been raised with the Engineer
because an Engineer’s determination is not required for the signature. (2) Also, the Arbitral
Tribunal held that an Engineer’s determination is not required for a dispute to be formed. Sub-
clause 20.4 allows disputes “of any kind whatsoever” to be referred to the DAB.
2013 National Highways High Court of Red, Fourth 52.1; Various claims were considered including claims for unforeseen costs that were incurred as a Link
Authority of India v Delhi, India Edition 52.2; 60 result of late hand-over of the site and sums for idle the plant and machinery.
Ncc-Knr
2013 ICC Final Award in Port Louis, Not Specified - 20 The Arbitral Tribunal was asked to determine (1) whether an identifiable dispute about an Link*
Case 16435 Mauritius Refer to Adjudicator's decision was necessary before the obligation to give notice arose, and (2)
Summary Note. whether referring an Adjudicator's decision to ICC Arbitration required a Request for
Arbitration or, merely, a notice of intention. The Arbitral Tribunal decided that (1) a fresh
dispute was not necessary since one already existed when the Contractor disagreed with the
Project Manager's decision, the Contract was clear in that each party would have a dispute at
the moment it disagreed with the Adjudicator's decision and the provision referred to referral
from date of written decision, not the dispute; and (2) the purpose of a fixed period is prompt
settlement of disputes and certainty, therefore, the clauses are interpreted so that referral of
the decision to Arbitration under ICC rules means filing of a Request for Arbitration within the
requisite time. Although the award does not refer to FIDIC in particular, it was published by
the ICC together with other awards relating to "international construction contracts
predominately based on FIDIC conditions".
Note: The Contract in dispute is not a FIDIC Contract but reference is made to Mr. Christopher
Seppälä's article titled "Pre-Arbitral Procedure on Settlement of Disputes under the FIDIC
Conditions" [(1983) 3ICLR 316].
2013 Tubular Holdings High Court, Red, First 20.4; 20.6 Binding but not final decision of the DAB must be complied with pending the arbitration. Link
(Pty) Ltd v DBT South Edition, 1999
Technologies (Pty) Gauteng,
Ltd Johannesburg,
South Africa
2013 Midroc Water High Court of Red, Fourth 67 The Defendant argued that the suit was premature. The court made an order to stay the Link
Drillining Co Ltd v Kenya Edition, 1987 proceedings so parties could commence settlement of their dispute in accordance with the
Cabinet Secretary, settlement procedure set forth by FIDIC.
Ministry of
Environment,
Water & Natural
Resources & 2
others
2013 M/S Jsc High Court of Red, Fourth 52 - Certain quantities in the BoQ were reduced or omitted by the Engineer. The claimant claimed Link
Centrodostroy v Delhi, India Edition Amended for price variation as a result of such reduction.
M/S National
Highways Authority
2013 National Highways High Court of Red, Fourth 14.4; The question in this case was whether the contractor was entitled to payment towards price Link
Authority v MS Kmc- Delhi, India Edition 60.1; 70.3 -adjustment on all items of work referred to in the BoQ.
Rk-Sd JV Amended
17
Clauses
Cited
2013 Doosan Babcock v Technology First Edition, 1.1.3.4; Following the judgement on 11/10/2013, the Defendant made an application to discharge the Link
Comercializadora and 1999 7.4; 8.2; injunction.
De Equipos y Construction 9; 10; 12
Materiales Mabe Court, England
24/10/13 and Wales
2014 ICC Procedural Bucharest, Not Specified 2.5; 14.9; In this case the Arbitral Tribunal considered whether it was appropriate to allow new claims Link*
Order of February Romania 14.11; to be introduced and considered the delay and disruption as a result of introducing new
2014 in ICC Case 14.13; claims.
19105 20.6
2014 ICC Final Award in An Eastern Yellow, First 2.5; 20; The Claimant contended that the Arbitral Tribunal lacked jurisdiction to determine certain Link*
Case 19346 European Edition, 1999 20.4; issues from a DAB decision because the Respondent failed to issue its Notice of Dissatisfaction
Capital 20.5; 20.6 (NoD) on those particular issues in time. However, the Claimant had served timely NoDs on
other issues from the same DAB decision. Therefore the Arbitral Tribunal held that it was not
prevented from examining the issues subject of the Respondent's NoDs because Sub-clause
20.4 refers to disputes and it is the dispute which defines the scope of the Arbitral Tribunal's
jurisdiction, not the NoD. The question is then whether a particular issue is relevant to the
dispute, in which case, it falls within the jurisdiction. The Arbitral Tribunal also held in obiter
dictum that even if the final Contract Price increases between the Claim and the Arbitration or
the percentage of delay damages amounts to more than the 5%, it would be the same claim
and dispute between the parties so that the increase would not have to be referred to a DAB
before reaching Arbitration.
2014 ICC Final Award in An Eastern Red, First 3.5; 4.2; (1) The Arbitral Tribunal held that a Claimant is not required to give notice to the Engineer Link*
Case 19581 European Edition, 1999 11.9; and await its determination under Sub-clause 3.5 before referring a dispute to arbitration if
Capital 14.9; 20; reference to Sub-clause 3.5 is not explicitly provided for in the Contract. The claims in
20.1; question involved Sub-clauses 4.2, 11.9 and 14.9 regarding performance bonds, performance
20.4; certificates and retention money, respectively, none of which refer to Sub-clause 3.5. Sub-
20.6; clause 3.5 only applies when the relevant Sub-clause so provides and Sub-clause 20.1 only
20.7; 20.8 applies to extensions of time or additional payments. The return of a retention money
guarantee does not constitute consideration given in exchange for works, therefore it is not
“additional payment”. Also, compensation for damages and reimbursement of expenses is
also outside of Sub-clause 20.1 because they do not constitute consideration in exchange for
works. (2) The Arbitral Tribunal also held that the term “or otherwise” in Sub-clause 20.8
which provides a reason for a DAB not to be in place is triggered when the DAB lacks
independence or impartiality.
2014 Honeywell Technology Not specified, 14.6; Contracts to bribe are unenforceable, however, contracts procured by bribe are not Link
International and First edition, 14.7; unenforceable. Note: Clauses cited are not specific to a particular Book.
Middle East Ltd v Construction 1999 - Refer to 16.2;
Meydan Group Llc Court, England Summary Note 16.4; 20.6
and Wales
2014 National Highway High Court of Red, Fourth 70.2 - The question in this case was whether the entry tax introduced was recoverable from the Link
Authority v Som Delhi, India Edition amended Employer under the subsequent change in the legislation clause.
Dutt Builders NCC
2014 Peterborough City Technology Silver, First 1.2.6; Can a party go straight to arbitration under Sub-Clause 20.8 when no DAB is in place or is it Link
Council v Enterprise and Edition 1999 1.4.1; mandatory to put a DAB in place prior to referral to arbitration? What if one party tries to
Managed Services Construction 20.2; scupper the process? A party refusing to sign the DAA can be compelled to do so by an order
Ltd Court, England 20.3; of specific performance. Thus, failure to agree on DAA does not demand the application of
and Wales 20.4; sub-clause 20.8.
20.5;
20.7; 20.8
2014 PT Perusahaan Gas High Court, Red, First 20; 20.4; Persero 2 - DAB enforcement - these proceedings in the High Court were a second attempt to Link
Negara (Persero) Singapore Edition, 1999 20.5; enforce the DAB's binding but not final decision. This time, following the guidance of the CA in
TBK v CRW Joint 20.6; 20.7 Persero 1, the merits were placed before the arbitral tribunal and the arbitrator issued an
Operation and interim award which was not set aside by the court.
another matter
2014 Chennai Metro Rail High Court of Red, First 20.6- The contract between the parties was FIDIC, however, the case is concerning removal of Link
Limited v M/S Judicature at Edition, 1999 amended arbitrators.
Lanco Infratech Madras
Limited
18
Clauses
Cited
2014 Obrascon Huarte Technology Yellow, First 1; 1.1.6.8; Amended FIDIC Yellow Book. Link
Lain SA -v- Her and Edition, 1999 1.13; 1.3; In reaching the decision that the Employer had lawfully terminated the Contract, the Court
Majesty’s Attorney Construction 3.3; 4; found inter alia that:
General for Court, England 4.1; 4.10; • The Contractor had failed to proceed with the design and execution of the works with due
Gibraltar and Wales 4.11; expedition and without delay.
4.12; 5; • The Engineer was entitled to issue various Clause 15.1 notices to correct and made some
5.2; 8; general points on their limits.
8.1; 8.2; • The Employer served a notice of termination on the grounds set out in Clauses 15.2(a), (b)
8.3; 8.4; and (c), and the Contract was lawfully terminated by the Employer on these grounds.
8.6; 8.7; • Service of the termination notice to the technically wrong address was not fatal.
13; 15.1; • Termination could not legally occur if the Contractor has been prevented or hindered from
15.2; remedying the failure for which the notice is given within the specified reasonable time.
15.3; • Termination events do not have to amount to repudiation.
15.4; 20; • Clause 8.4 states that the entitlement to an extension of time arises if, and to the extent
20.1 that, the completion “is or will be delayed” by the various events. The wording is not: “is or
will be delayed whichever is the earliest” . Therefore, notice does not have to be given for the
purpose of Clause 20.1 until there is actually delay although the Contractor may give notice
with impunity when it reasonably believes that it will be delayed.
2014 Al-Waddan Hotel Technology Red, Fourth 1.5; 2.1; The contractor was entitled to refer the dispute directly to arbitration when the engineer's Link
Limited v Man and Edition, 2.6; 49; appointment had clearly terminated. (In this case, the parties could refer the dispute to
Enterprise Sal Construction Revised 1992 66; 67; arbitration after the engineer's decision or if the engineer failed to give notice of its decision
(Offshore) Court, England 67.1; within 84 days.)
and Wales 67.2;
67.4; 68.2
2014 M/S National High Court of Fourth Edition 1.1; 6.4; The contract between the parties was based on FIDIC with conditions of particular Link
Highways Authority Delhi, India 12.2; application. A dispute arose between the parties as to additional sums claimed by the
v M/S Hcc Ltd 42.2; Contractor. The dispute was referred to the DRB but the DRB failed to issue its
44.1; recommendation within the allowable time period. The dispute was therefore referred to
arbitration. The Arbitral Tribunal decided in favour of the Contractor. The Employer applied to
the Court seeking to set aside the Arbitral Tribunal's award. The Court considered a few
issues: a) whether profit was recoverable by the contract? and b) whether the definition of
'costs' is wide enough to encompass the other charges connected with the delay caused?
2014 Swiss Supreme First Civil Law Red, First 1.2; 2; 20; The Swiss supreme court decided that referring to DAB was mandatory before referring to Link
Court Decision Court, Edition, 1999 20.2; arbitration. However, the court also took into account the Employer’s passivity and found
4A_124/2014 Switzerland 20.4; that there would be a breach of good faith for the Employer to insist on referring a dispute to
20.5; DAB when it had intervened with constitution of it.
20.6;
20.7; 20.8
2015 NH International The Judicial Red, First 2.4; 2.5; The proper construction of clause 2.4. In the Board’s view, the decision of the Court of Appeal Link
(Caribbean) Limited Committee off Edition, 1999 14; 15.3; cannot stand. There was no suggestion that the Arbitrator had misconstrued, his conclusion
v National the Privy 16; 16.1; was that the employer had to produce evidence that Cabinet approval for payment of the
Insurance Property Council, 16.2; sum due under the Agreement had been obtained. So the Agreement was validly terminated
Development Trinidad and 16.3; by the contractor. In relation to 2.5, any of those sums which were not the subject of
Company Limited Tobago 16.4; 19.6 appropriate notification complying with the clause and cannot be characterised as abatement
(No.2) claims as opposed to set-offs or cross-claims must be disallowed.
2015 M/S Gammon v High Court of Not Specified Not A member of JV unilaterally suspended their works and vacated the premises. The Employer Link
M/S Chennai Metro Judicature at Specified - terminated the contract and invoked the guarantees arguing that the JV met the pre-
Rail Limited Madras Refer to qualification criteria but not the Applicant. The Applicant argued that bank guarantees are
the independent contracts and cannot be subject to Arbitration under the relevant acts of the
Summary country. The Employer further argued that the Applicant cannot file applications
Note independently when the contract was entered by the Employer on one side and the JV on the
other. The court decided that the guarantees were not independent contracts and as a result
were subject to arbitration. It was also decided the Applicant being the lead party could file
applications.
19
Clauses
Cited
2015 Obrascon Huarte Court of Yellow, First 1.1; In reaching the decision that the Employer had lawfully terminated the Contract, the Court Link
Lain SA v Her Appeal, Edition, 1999 1.1.6.8; found inter alia that:
Majesty's Attorney England and (Amended) 4.1; 4.12; • The Contractor had failed to proceed with the design and execution of the works with due
General for Wales 5.1; 5.2; expedition and without delay.
Gibraltar 8; 8.1; • The Engineer was entitled to issue various Clause 15.1 notices to correct and made some
8.4; 13; general points on their limits.
13.1; • The Employer served a notice of termination on the grounds set out in Clauses 15.2(a), (b)
15.1; and (c), and the Contract was lawfully terminated by the Employer on these grounds.
15.2; • Service of the termination notice to the technically wrong address was not fatal.
15.3; • Termination could not legally occur if the Contractor has been prevented or hindered from
15.4; 20 remedying the failure for which the notice is given within the specified reasonable time.
• Termination events do not have to amount to repudiation.
• Clause 8.4 states that the entitlement to an extension of time arises if, and to the extent
that, the completion “is or will be delayed” by the various events. The wording is not: “is or
will be delayed whichever is the earliest” . Therefore, notice does not have to be given for the
purpose of Clause 20.1 until there is actually delay although the Contractor may give notice
with impunity when it reasonably believes that it will be delayed.
2015 Bosch Munitech High Court of Red Book, First 14; 14.3; The Court considered the formation of the contract and incorporation of FIDIC's General Link
(PTY) Ltd v Govan South Africa, Edition, 1999 14.6; 14.7 Conditions of Contract. The Court held that no contract was formed between the parties.
Mbeki Municipality Gauteng,
Pretoria
2015 PT Perusahaan Gas Court of Red, First Red Persero 2 - DAB enforcement - Court of Appeal upheld the award enforcing the DAB's decision Link
Negara (Persero) Appeal, Edition, 1999. (1987): dismissing the appeal. The CA ruled that it was not necessary to refer the failure to pay back
TBK v CRW Joint Singapore Red, Fourth 67; 67.1 ; to the DAB (contrary to the decision in HC Persero1) and it was not necessary for the
Operation Edition, 67.3; Contractor to refer the merits in the same single application as its application to enforce
Revised 1992. 67.4. Red (contrary to the CA in Persero 2).
Yellow, First (1999):
Edition, 1999. 14; 20;
Silver, First 20.4;
Edition, 1999 20.5;
20.6;
20.7;
20.8;
20.9.
Yellow
and Silver
(1999):
20; 20.3;
20.4;
20.5;
20.6; 20.7
2015 Taisei Corporation v High Court of Red, Fourth 70 The dispute between the parties revolved around the price adjustment formula stipulated in Link
West Bengal State Calcutta Edition the Appendix to Tender. The court considered 1)whether the contract was a dual currency
Electricity contract and 2) the method of application of the price adjustment formula.
2015 Venture Helector v Supreme Red, First 1.6 The question in this case was whether the stamp duty was payable by the contractor as Link
Venture Tomi SA Court, Cyprus Edition, 1999 specified in the conditions of offer or the employer as specified by the contract.
2015 National Highways The Supreme Red, Fourth 70 - The disputes relate to consequences of additional amount of royalty payable by the Link
Authority v M/S Ltd Court of India Edition Amended, respondent as a result of the notification for upward revision of royalty imposed by the
Cementation India Refer to government, price adjustment under the contract and jurisdiction of the arbitral tribunal.
the
Summary
Note
2015 Ntpc v Hindustan High Court of Red, Fourth Refer toAlthough the contract between the parties was based on FIDIC 4th, the issue in this case was Link
Construction Delhi, India Edition the whether the appellants had, by their petition, made an unequivocal, categorical and
Company Summary unambiguous admission of liability with regards to the claims arising out of the contract. The
Note Court decided that even when a part of a document gives an impression that there is
admission of liability, the document has to be read as a whole which may dispel that
impression.
2015 Aircraft Support Court of Conditions of 1.6; Refer Note: FIDIC conditions mentioned seem to be heavily amended. Link
Industries Pty Ltd v Appeal, New Subcontract for to
William Hare UAE South Wales, Works of Civil Summary
LLC Australia Engineering Note
Construction -
No further
information
given
2016 Roads Authority v High Court of Red Book, First 20.4; 20.6 The High Court of Namibia upheld an interim DAB decision on jurisdiction, scope of the Link
Kuchling Namibia, Main Edition, 1999 dispute and some procedural matters. The court concluded that the applicant failed to
Division, establish any contractual right which the court needed to protect by stopping the
Windhoek adjudication process.
20
Clauses
Cited
2016 J Murphy & Sons High Court of Amended FIDIC 2.5; 3.5; The Court found: Link
Ltd v Beckton Justice Queens Yellow Book 8.7 • The Employer’s right to delay damages under an amended Sub-clause 8.7 was not
Energy Ltd Bench Division - conditional upon an agreement or determination by the Engineer under Clauses 2.5 and 3.5
Technology [although in the unamended form Sub-clause 8.7 is expressly stated as being subject to Sub-
and clause 2.5].
Construction • Sub-clause 8.7 set out a self-contained regime for the trigger and payment of delay
Court, England damages.
and Wales • A call on the bond would not be found to be fraudulent where the Employer believed it was
entitled to delay damages under Sub-clause 8.7, even though no entitlement had been
determined under Sub-clauses 2.5 and 3.5.
2016 Divine Inspiration High Court of Red, First 20; 20.2; This case highlights the problems caused by not appointing a standing DAB. The contract Link
Trading 130 (PTY) South Africa, Edition, 1999 20.4; provided for appointment of DAB which was not complied with, when the other party
Limited v Aveng Gauteng Local 20.5; 20.8 referred to arbitration, the applicant argued that the arbitrator had no jurisdiction to hear the
Greenaker-LTA Division, dispute. However, the applicant amended its submissions at the stage of arguments to
(PTY) Ltd and Johannesburg request that the Court should order the respondent to appoint another tribunal. The
others question then was whether the applicant could seek a further or alternative relief than that
included in the Notice of Motion.
2016 M/S Hindustan High Court of Red, Fourth 1; 6.4; 12; The Contractor sought to claim, inter alia, profit and loss of earning capacity. The Court Link
Construction Co v Delhi, India Edition 42; 44; considered the reason and liability for the delay and held that: 1) the Engineer was correct to
M/S National Partly consider the critical activities when assessing the delay; and 2) the Contractor was entitled to
Highways Authority amended profit and loss of earning capacity.
2016 Ennore Port Limited High Court of Fourth Edition 51.1; The Engineer omitted part of the works. The Contractor claimed disruption and abortive costs Link
v Hcc-Van Oord JV Judicature at 52.1; as a result. The issues considered by the court in this case were, inter alia, 1) whether the
Madras relevant clause of the Arbitration Act was wide enough to cover the challenge to the Arbitral
Tribunal's award and 2) whether the Claimant being a successor-in-title to one of the parties
to the arbitration agreement, was itself a party to the arbitration agreement
2016 National Highways The Supreme Red, Fourth 70 - Two claims were raised by the contractor in arbitration. One for compensation for additional Link
Authority v M/S Jsc Court of India Edition Amended cost for increase in the service tax on insurance premium. The other for the additional cost on
Centrodostroy account of service tax on Bank Guarantees as a result of change in the legislation.
The award of the tribunal was challenged by the employer. The employer argued that the
service on the bank guarantee could have been avoided by the claimant if the bank guarantee
was replaced by tendering cash and that the facility of bank guarantee was optional and at
the discretion of the contractor. The contractor argued that furnishing a performance bank
guarantee was a mandatory condition of the contract and it fell under clause 70.8
The Court decided that construction of the terms of a contract is primarily for the AT to
decide and unless the AT construes the contract in such way that no fair minded or
reasonable person could do, no interference by court is called for. Therefore, the court did
not find any reason to interfere in the matter. Therefore, the appeal was rejected.
2016 General Electric Court of Silver, First 1.1 GE purchased a gas turbine by Siemens. GE was willing to export the machine and Link
International Appeal, New Edition, 1999 disassemble it, acquiring know-how that it would allow it to compete with Siemens in the
Incorporated v Zealand market. Siemens secured an interim injunction pending the trial. The contract by Sub-clause
Siemens (NZ) 1.10 (similar to FIDIC) provided that the copyright in construction and other design
Limited documents relating to works (including the turbine) remained with Siemens.
2016 Commercial Technology Red, First 20 - Refer Clause 20 FIDIC 1999 was used as an example of a time bar clause. In this case, the parties Link
Management and Edition, 1999 - to the entered into a sub-contract. Defects appeared nearly 9 years after completion. The issues in
(Investment) Ltd v Construction Refer to the Summary dispute were 1) whether a clause in the standard terms and conditions of the Defendant,
Mitchell Design and Court, England Summary Note Note requiring the defects to be notified within 28 days from the date of appearance, was
Construct Ltd & and Wales incorporated into the sub-contract, 2) if so, was that subject to Unfair Contract Terms Act
Anor 1977's reasonableness test.
Following Order No. 915/2008, FIDIC Conditions became mandatory for contracts entered into by Romanian authorities. As a result, there are a number of cases on Link
FIDIC in Romania (in Romanian language). Please click on the link for more Romanian cases on FIDIC.
21

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