International Construction Law Review
HOW NOT TO INTERPRET THE FIDIC DISPUTES CLAUSE: THE SINGAPORE COURT OF APPEAL JUDGMENT IN PERSERO
CHRISTOPHER R SEPPÄLÄ*
Partner, White & Case LLP, Paris
Special Adviser, FIDIC Contracts Committee
I. INTRODUCTION
As a result of the recent decision of the Court of Appeal of Singapore (the “CA” or the “Court”) in CRW Joint Operation v. Perusahaan Gas Negara (Persero) TBK
1 (the “Persero case”), which dismissed an appeal against the judgment of the High Court of Singapore setting aside an International Chamber of Commerce (ICC) arbitration award, there has been increased uncertainty about the effect of a “binding”, but not “final”, decision of a DAB under the FIDIC Conditions of Contract for Construction, 1999 (the “1999 Red Book”).2 The ICC Arbitral Tribunal in that case, on the one hand, and two Singapore courts, on the other hand, arrived at widely different interpretations of sub-clauses 20.4 to 20.7 of the 1999 Red Book.
In light of this uncertainty, and given that I have been involved in the review and drafting of the disputes clause in the 1999 Red Book since the Fourth Edition was published in 1987, I would like to comment on these decisions, specifically the CA judgment, as it is the last—and final—word from Singapore.3
Accordingly, in this article I will briefly review the facts of the Persero case (Section II), the ICC arbitration and award (Section III) and the judgments of the High Court (“HC”) and the CA in Singapore (Section IV). I will then comment on the CA decision (Section V), before drawing some conclusions (Section VI).
* The views expressed herein are those of the author and not necessarily those of the law firm or organisation, such as FIDIC, with which he is affiliated. The author is grateful to Matthew Secomb and Diana Bowman, his colleagues at White & Case LLP, Paris, for their comments on this paper in draft. However, only the author is responsible for its contents.
1 [2011] SGCA 33.
2 See, e.g., Frederic Gillion, “Enforcement of DAB Decisions under the 1999 FIDIC Conditions of Contract: A Recent Development: CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK” [2011] ICLR 388 (hereinafter cited as “Gillion”) who refers (at p. 389) to the “confusing message” sent by the High Court judgment.
3 The Court of Appeal is Singapore’s highest court.
Pt 1] How Not to Interpret the FIDIC Disputes Clause
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