International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
In our last issue we covered the important Singapore case of CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 33, thanks to Mr Frederick Gillion, who in his article “Enforcement of DAB Decisions under the 1999 FIDIC Conditions of Contract” [2011] ICLR 388, considered the judgments and their implications. Mr Gillion referred to other decisions of other arbitral tribunals which had been faced with the same or a similar problem: What is an arbitral tribunal to do when requested to enforce the decision of a Dispute Board? As readers will recall, in Persero the Singapore Court of Appeal in a long and careful judgment came to the conclusion that the arbitral tribunal had erred and declined to uphold its award enforcing the Dispute Board decision. In this issue we have two further contributions relating to the case. First, Mr Christopher R Seppälä, a member of our Editorial Advisory Board, a Partner in White and Case LLP in Paris and Special Advisor to the FIDIC Contracts Committee, takes issue with the Singapore Court in a trenchant paper entitled: “How Not to Interpret the FIDIC Disputes Clause: The Singapore Court of Appeal Judgment in Persero” (at page 4). It is followed by a paper from Oana Soimulescu and David Brown—“Enforcement of Binding DAB Decisions: A Fresh Approach to Clause 20 of the 1999 FIDIC Conditions of Contract” (at page 19) which is based on the award in ICC Case 16948, in which the tribunal enforced the decision of a Dispute Board. The authors’ commentary is of particular interest since the law applicable was civil law. The award may have been one of those mentioned by Mr Gillion.
The present position is undoubtedly unsatisfactory. Arbitrators faced with facts similar to those in the Singapore case or those in ICC Case 16948 or other cases such as those mentioned by Mr Gillion now find themselves in a quandary. Prudence alone indicates that they should be cautious before taking a course which might not find favour with a court. It would be a bold tribunal that decided that the Singapore Court of Appeal was wrong in its analysis or conclusions. The Court’s judgment illustrates that it is unwise to make assumptions about how clause 20 of the FIDIC Red Book may be interpreted. As we pointed out in the Introduction to the last issue, the Court was well informed as it had the benefit of the major writings on clause 20, as well as apparently comprehensive argument. Courts can find difficult the distinction between a decision that is merely “binding” and one that is “final and binding”. Much may now also turn on whether a notice of dissatisfaction was given or by which party it was given. We believe that Oana Soimulescu and David Brown speak for many when they say in their paper:
“However, what the international construction business needs, in any event, is certainty as to the parties’ respective rights and obligations under clause 20. This means that modifications to clause 20 are needed in order to ensure that a merely binding DAB
The International Construction Law Review [2012
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