• 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 fill in a marketing enquiry here.
• Certain of the clause numbers referred to in this table may not coincide with the standard FIDIC contract clause numbers so please keep that in mind for any searches.
* Links in italics would require a subscription to access online.

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Judgment for an application for summary judgment against the defendant, to enforce five DB decisions.
Strabag International
The plaintiff's case was that the 5 DB decisions were binding on the defendant, and on the basis that none had been revised, the defendant was to promptly give effect to
GMBH v National
the decisions pursuant to Sub-Clause 20.4 of the contract. The plaintiff also asserted that its claim was liquidated and thus appropriate to be determined summarily and
Irrigation Authority
that the defendant lacked any reasonable or triable defence for non-payment.
(Formerly the
The defendant admitted that the five decisions were issued, but opposed the application on the basis that notices of dissatisfaction were issued, accordingly it took the
National Irrigation In the High Court
20.4, 20.5 and position that this application was premature for failure to exhaust the internal dispute mechanisms under Sub-Clause 20.5, which required parties to submit to amicable
2024 Board) (Commercial at Nairobi, Not specified Link
20.6 settlement and finally arbitration. The defendant further averred that it had a good defence. The court noted that whilst the defendant issued the notices of dissatisfaction,
Case E219 of 2023) Republic of Kenya
there was no effort to complete the dispute resolution clauses pursuant to Sub-Clauses 20.4 – 20.6.
[2024] KEHC 3744
The court found that the defendant failed to raise any triable or reasonable defence to merit a trial, and at the time of this application had yet to invoke the arbitration
(KLR) (Commercial
clause which the court found to be out of time. The court confirmed that plaintiff's claim was a liquidated claim, and the DB decisions were binding on both parties who
and Tax) (19 April
were to promptly give effect to the decisions which were not revised and were final. Summary judgment was granted, and the plaintiff was awarded the costs of the
2024) (Ruling)
application.

Judgment concerning two applications: (1) the respondent's application to set aside the arbitral award; and (2) the claimant's application for enforcement of the aforesaid
arbitral award.
Application to set aside. The respondent contended that the tribunal failed to consider the effect of the agreement and the tender provisions on the FIDIC Conditions of
Machiri Limited v
Contract, instead the tribunal was said to have faulted by holding that the contract was governed only by the 1995 Orange Book. Accordingly, the respondent asserted that
Kenya Airport
the tribunal considered matters that were not before it, that the tribunal re-wrote the contract between the parties and that the award was against the public policy of
Authority FIDIC Conditions
Kenya in respect of its decision regarding the rate of interest (computed monthly as opposed to the prevailing lending rates).
(Commercial of Contract for
The claimant opposed the application on the basis that the agreement between the parties took precedence over all other agreements, Sub-Clause 8 of the contract
Arbitration Cause In the High Court Design-Building
2.2, 3.5, 8, 8.3, provided for a variation of price, and that the eot was granted pursuant to Sub-Clauses 2.2, 3.5 and 8.3 of the contract due to delays occasioned by the respondent (for
2024 E057 & E053 of 2023 at Nairobi, and Turnkey, Link
13.8 which the award allowed for additional costs). As to the respondent's allegation that the award was against public policy, the claimant averred that the arbitration act
(Consolidated)) Republic of Kenya First Edition
granted the tribunal the discretion to determine the rate of interest to be applied to the award, that Sub-Clause 13.8 of the contract provided for the agreed interest rate
[2024] KEHC 3303 (1995 Orange
and that the PPDR (Public Procurement and Disposal Regulations) provided that interest would be commercial rates.
(KLR) (Commercial Book)
The main issue before the court for determination was whether or not the applicant (respondent) met the threshold for setting aside the arbitral award. The court found
and Tax) (21 March
that the respondent failed to demonstrate how the award offended public policy, that there existed no sufficient grounds to warrant setting aside the arbitral award.
2024) (Ruling)
Accordingly, the threshold was not met.
Consequently, claimant's application for recognition and enforcement of the said arbitral award was allowed, and the respondent was ordered to pay the costs of both
applications.

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Judgment handed down in relation to an application for an interim interdict to stay the adjudication of two disputes (the claims dispute and the termination dispute)
pending the outcome of: (1) arbitration proceedings relating to a time-bar dispute between the parties; and (2) finalisation of an investigation following allegations of
maladministration and corruption in the business and operations (the 'SIU Investigation').
Eskom Holdings SOC The contract, based on the 1999 FIDIC Yellow Book, was entered into for works at the Kusile Power Plant and comprised of three parts. The dispute between the parties
High Court of
Limited v TSSA (Pty) arose under the second part of the contract (called the 'P24E Contract') which related to limestone works.
South Africa,
Ltd and Others Yellow Book The first dispute (the claims dispute), related to claims between the parties for additional costs and eot, and was bifurcated into two separate DAB proceedings; (1) in
2023 Gauteng Local Link
(038256/2022) [2023] 1999 relation to a time-bar, which became the subject of arbitration proceedings, and (2) the merits and quantum of the claims, which the respondent before the court argued
Division,
ZAGPJHC 1469 (21 should be stayed pending finalisation of the arbitration proceedings and finalisation of the SIU Investigation. The DAB conveyed that the adjudication on the merits should
Johannesburg
December 2023) proceed unless interdicted through an order of court. The respondent conceded the stay in proceedings (in relation to the merits) pending the arbitration, after the
application was made to the court. The applicant, therefore, sought punitive costs.
The court ordered for the merits aspect to be stayed pending the arbitration of the time-bar aspect of the claims dispute, but dismissed the applications for stay of those
proceedings and stay of the termination dispute pending the SIU investigation. Each party was ordered to pay their respective legal costs.

This decision concerns a metrobus project in Paraguay. The contract underwent seven signed modifications. A draft eighth modification was rejected, which was followed
by termination of the contract.

Disputes between the parties included: whether or not access to site was given, delays to approval of the final design, rejection of the claimant's proposed value
Mota-Engil Ingenieria
engineering, validity of termination of the contract, whether or not the guarantees were performed in accordance with the contract, certain counterclaims and a dispute
y Construcción S.A. –
over the jurisdiction of the court particularly the admissibility of claims pursuant to the dispute resolution mechanisms set out under clause 20 and its interpretation in
Sucursal Paraguay v.
accordance with the Paraguayan laws. The contract underwent 7 signed modifications and one draft modification. The contract was terminated after draft modification
Ministry of Public Permanent Court
number 8 was rejected.
2023 Works and of Arbitration, 17, 20 Link*
Communications of Paraguay
As to the admissibility of claims, the parties disagreed over how the contract should be interpreted in the event of any contradictions between the usual interpretation of
Paraguay, PCA Case
FIDIC contracts and the rules of interpretation under the laws of Paraguay.
No. 2020-14, Final
The respondent argued for a strict interpretation of the contract and asserted that the claims had lapsed as a result of non-compliance with the requirements under sub-
Award 8 Dec 2023
clause 20.1. The claimant rejected the respondent's assertion that the claims lapsed on the basis that the parties agreed under the second memorandum of understanding
for all claims under the contract to be submitted to arbitration and the requirements, particularly the 28-day period in sub-clause 20.1, were thus not applicable. The
tribunal agreed with the claimants that the terms of the second memorandum of understanding reflected the willingness of the parties to submit any claim under the
contract to arbitration, including the present claims. The court noted that under Paraguayan law, the court must interpret the contract without limiting itself to the literal
meaning of its terms, but in accordance with the common intention of the parties, considering their total behaviour, even after conclusion of the contract.

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Judgment handed down concerning a claim for outstanding payments pursuant to a contract for fencing and associated civil works for the Moi International Airport. The
issue for determination was whether the defendant was in breach of the contract, entitling the plaintiff to the relief sought. The court noted that proof of performance of
obligations or breach of contract is a matter of law of contract, therefore, civil law, and a party is required to prove its case on a balance of probabilities.
The plaintiff's claim was for outstanding payment for work done and a retention amount. The plaintiff failed to plead quantum meruit in the alternative The defendant
contended that the plaintiff was not entitled to the full payment of the contract price, as claimed, on the basis that the plaintiff had failed to complete the works.
Westcon Contractors Conditions for
Limited v Kenya contract works
The court had to consider whether or not there was a variation to the contract, without which there could be no basis for payment over and above the contract price. The
Airways Authority of civil
High Court at contractual procedures for a variation, including obtaining the Engineer's approval, was not followed. The court noted that the plaintiff was claiming under the contract and
2023 (Civil Suit 3 of 2018) engineering Variations Link
Mombasa, Kenya not under any variation, and were bound to their pleadings. On that point, the court held that it was not the court's duty to amend the contract and insert into it a further
[2023] KEHC 24142 construction
sum. The plaintiff did not pursue a final certificate for the remainder of the works, did not get a variation for work outside of the contractual scope and was bound by the
(KLR) (24 October (fourth edition,
contract it had entered into.
2023) (Judgment) re-printed 1992)
The court found that there was no prayer to dispense with any requirement of the contract, that all valid certificates were paid, the purported draft final certificate was
extra contractual, and therefore, there was no breach of contract on the part of the defendant who paid all valid certificates raised to date. Accordingly, the plaintiff's claim
was held to be baseless and untenable in law, it failed to invoke the court's equity jurisdiction to quantum meruit, and the entire claim in limine was dismissed with costs to
the defendant. The only rider was that, whilst the plaintiff did not demand payment of the retention money (which was thus not in dispute), that sum was due to them.

Decision concerning jurisdiction of the arbitral tribunal and whether or not the provisions under a completely overhauled Sub-Clause 20.5 were a condition precedent to
arbitration.

The Singapore court stated that as a general principle, clear words are necessary to create a condition precedent to the commencement of arbitration. Various English and
Singapore cases were referred to.
CZS v. CZQ and CZR,
On the facts of this case, the question that arose was whether Sub-Clause 20.5 (which was entirely substituted as set out below) constituted a condition precedent to
Grounds of Decision
arbitration. The Court concluded that it was not. This case does not assist with the interpretation of unamended Sub-Clause 20.5 of FIDIC.
of the Singapore Singapore Yellow Book
2023 20.2, 20.5, 20.6 Link*
International Court International Court 1999 + PCC
In this particular matter, Sub-Clause 20.5 was substituted as follows:
[2023] SGHC 16 - 27
"(a) If any dispute arises out of or in connection with the Contract, or the execution of Works, including any dispute as to certification,
Oct 2023
determination, instruction, opinion or valuation of the Engineer, then either Party shall notify the other Party that a formal dispute exists. Representatives of the Parties
shall, in good faith, meet within 7 days of the date of the notice to attempt to amicably resolve the dispute, (b) If the representatives of the Parties cannot resolve a
dispute within 7 days from the first meeting, 1 or more senior officer(s) from each
Party shall meet in person within 14 days from the first meeting of the representatives in an effort to resolve the dispute. If the senior officers of the Parties are unable to
resolve the dispute within 7 days from their first meeting, then
either Party shall notify the other Party that the dispute will be submitted to arbitration in accordance with Sub-Clause 20.6."

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

A judgment concerning the application for summary judgment for payment following four dispute board decisions. The plaintiff's position was that pursuant to Sub-Clause
20.4 the defendant was required to promptly give effect to the decision of a DB, regardless whether it was binding or final and binding, and that the defendant therefore
Sogea-Satom SAS v had no reasonable defence for non-payment of sums awarded. The defendant opposed the application and sought its dismissal on the basis that there were triable issues,
National Irrigation which it held, ought to be referred to arbitration on the basis that under the FIDIC Pink Book the decision of a DB is not final and open to review or appeal through
Authority formerly arbitration and that enforcement of a DB decision could only follow once the mechanism for arbitration had been exhausted – i.e., a three-pronged dispute resolution
National Irrigation mechanism being: determination by DB, amicable settlement and lastly, arbitration. The defendant held that the plaintiff's application was therefore not ripe for
Board (Commercial determination and that it should be granted leave to defend the suit on the basis that the DB decision was non-contractual, unlawful and illegal and that all claims were
High Court at Pink Book 2010 +
2023 Case E320 of 2022) 20.2, 20.4, 20.7 settled following termination of the contract. The defendant, accordingly, applied for a stay in proceedings pending reference to arbitration. Link
Nairobi, Kenya PCC
[2023] KEHC 22767
(KLR) (Commercial The court held that: (1) under Sub-Clause 20.4 the obligations imposed by a DB decision is binding on the parties and enforceable unless it is set aside by amicable
and Tax) (26 settlement or by arbitration, following a Notice of Dissatisfaction – the wording "unless and until" underpins the duty to comply with its obligations; (2) the right to enforce
September 2023) the DB decision is preserved by Sub-Clause 20.7, either by arbitration or through court action; and (3) there was no reason to stay the proceedings as the defendant failed
(Ruling) to raise any issue for trial or determination by the court.

The court dismissed the defendant's application, allowed the plaintiff's application and granted judgment against the defendant as requested by the plaintiff.

Republic v Director
General Kenya
National Highways
Authority; SBI An application before court for an order of mandamus against the respondent, to direct and compel the latter to satisfy a court order.
International Housing
Holdings (Kenya) The applicant's case was that aforesaid judgment and decree stemmed from the FIDIC contract, which by design enjoins any party to urgently settle and pay any amount
(Exparte); Kenya Pink Book 2005 + determined payable by the party. On this basis the applicant asserted that it was necessary for those sums to be paid immediately. The respondent opposed the applicant
High Court at
2023 Revenue Authority PCC (original and argued that they were precluded from paying because they had received notice of preservation of funds from the Kenya Revenue Authority, and were required to Link
Nairobi, Kenya
(Interested Party) case) comply with the preservation order until it was discharged. This was largely a matter of domestic laws.
(Application E034 of
2022) [2023] KEHC The applicant was successful, and an order of mandamus was issued against the respondent. No order on costs was made on the basis that it would ultimately be borne by
22567 (KLR) (Judicial the tax-payer.
Review) (25
September 2023)
(Judgment)

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The parties have entered into a dispute about the (interim) termination of the agreement and the project, as well as some related issues. MER subsequently initiated ICC
arbitration proceedings in accordance with the provisions of the agreement. The ICC issued an award, in which the conventional claims were (partly) granted and the
MER Sint Maarten BV counterclaims were rejected.
v. Sint Maarten MER requested Telem to (voluntarily) comply with the arbitral award. Telem did not do this, instead they initiated proceedings before the Amsterdam Court of Appeal to
Telephone Company Joint Court of annul the award.
NV, Judgment of the Justice from Aruba, The Court granted MER's (primary) request for leave to enforce the arbitral award, which the court noted was a request for recognition and enforcement of an arbitral
Joint Court of Justice Curaçao, Sint Yellow Book award. The starting point was held to be granting leave and it was up to Telem to demonstrate that a ground for refusal existed as referred to in Article 36(1)(a) of the
2023 Link*
of Aruba, Curaçao, Maarten and from 1999 Model Law.
Sint Maarten and of Bonaire, Sint The court noted that if, after summary assessment, it is sufficiently plausible that a ground for refusal exists, the court may refuse permission, but there was no room for
Bonaire, Sint Eustatius and Saba the court's own investigation or a full review of certain points of the arbitral proceedings or the arbitral award, as argued by Telem.
Eustatius and Saba -
13 Sept 2023 The court held that: (1) the formal requirements under article 35 of the Model Law were met and that none of the provisions under article 36.1 arose; (2) Telem had not
sufficiently substantiated its defense and appeal complaints that various grounds for refusal applied; and (3) the court saw no reason to make use of the provisions in art.
36 to suspend enforcement or to make it subject to the provision of security.

The First Respondent successfully defended a high court application to review and set aside its disqualification for a tender at the Kusile Power Station and the award of the
tender to the Second Respondent. There were two grounds for review before court, one in relation to non-compliance with tender requirements, and second relating to
change in specification, including major design changes, which the Applicant asserted amounted to tender manipulation (to the advantage of the Second Respondent). Both
grounds were found without foundation, a summary regarding the first follows.

Mandatory requirements were set out in the bid document, and it was made clear that a bidder would be disqualified if the “mandatory returnables” were not completed.
The issue before court was what was meant by one of the returnables - described as the “completed FIDIC schedule and contract data”, which included an appendix.
WBHO-Lubocon JV v
Eskom Holdings SOC High Court at
The First Respondent's primary position was that the Applicant had not provided the mandatory information, without which it was unable to properly assess a bid. The
Limited and Another Gauteng Division
2023 1999 Red Book appendix was available on the website and it contended that the bidder had a duty to access documents online, fill it in and return it. Link
(005599/2022) [2023] Johannesburg,
ZAGPJHC 1008 (8 South Africa
The Applicant asserted that the mandatory requirements were cryptic and unclear and that it was impossible to comply with as the term FIDIC contract data had no
September 2023)
generally accepted meaning. Whilst it was accepted that a meaning was included in the second edition of the red book (2017), there was no reference to such a term in the
1999 FIDIC red book which was the version used for this contract. The Applicant further questioned why the appendix was not expressly referred to as the mandatory
returnable document.

On the basis that the appendix was available on the website, the court held that there was no burden to decipher unclear directions, and that a diligent bidder would have
accessed the document from the website as instructed and seen from its contents that it was something that it was required to complete and return. The court found that
the tender was not unfair, nor was it irrational for the First Respondent to have disqualified the bidder for non-compliance. Accordingly, the application was dismissed.

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Judgment concerning an application for a stay of proceedings so that the matter could be referred to arbitration. The dispute concerned a DAB decision in respect of which
the defendant had issued a notice of dissatisfaction and intention to commence arbitration pursuant to Sub-Clause 20.4. The applicant (defendant) asserted that the
plaintiff's application for enforcement of the said decision was premature. The plaintiff took the view that the defendant's application was bad in law and res judicata
applied on the basis that similar applications had been previously determined and dismissed.

The question before court centred around the interpretation of Sub-Clause 20.4 and whether it permits enforcement of a DAB decision once issued or whether
SBI International enforcement had to await completion of the arbitration process in circumstances where a notice of dissatisfaction and intention to commence arbitration had been given.
Holdings AG v Kenya The court noted that with regards to interpretation, the court had to consider the contract as a whole and determine the intention of the parties and the purpose of
National Highways agreeing the dispute resolution process.
Pink Book 2005 +
Authority (Civil Case High Court at 20.4, 20.5, 20.6,
2023 PCC (original Link
E968 of 2022) [2023] Nairobi, Kenya 20.7 The defendant argued that under Sub-Clause 20.4 the DAB decision was binding, but provisional and not final and therefore not yet enforceable. Also, the defendant took
case)
KEHC 20793 (KLR) the view that a notice of dissatisfaction required the parties to engage in attempting settlement, failing which, proceed with arbitration. The court held that whilst
(Commercial and Tax) provisional at this stage, the intention of the parties was to have the decision promptly effected, the other processes (amicable settlement and arbitration)
(28 July 2023) (Ruling) notwithstanding.

Accordingly, the court found that: (1) it was the intention of the parties that the DAB decision under Sub-Clause 20.4 though not final, was nonetheless binding and
enforceable and must be enforced on the basis that it immediately confers a positive obligation on the paying party; (2) that the next stage of proceedings would not
prevent implementation of that decision; (3) the final and binding decision from arbitration is not a condition precedent to enforcement of the DAB decision; and (4) agreed
with the plaintiff that the application was res judicata, the court having already pronounced itself on the issues and interpretation of the contentious clauses. The
application was dismissed with costs.

Judgment concerning the applicant's claim for payment in terms of interim payment certificate no.17, signed by the Engineer, plus interest, which were the subject of
dispute under arbitration proceedings. The arbitration hearing and proceedings were still in progress when this application was brought and argued.

The first respondent's position was that IPC no. 17 included amounts relating to certain variation orders which it held the applicant was not entitled to on the basis that
those were not issued in compliance with the contract and had not been approved by the first respondent. It asserted that the contract provisions authorised the Engineer
to revise and correct IPC no. 17 with IPC no. 18 (which, in contrast with IPC no. 17, was not signed by the Engineer). IPC no.18 reversed the disputed variation orders and
included delay damages (as a deduction) for which it said the applicant was liable. Accordingly, the first respondent admitted liability to the applicant for a specific amount.
Umlazi Civils Pty Ltd v
Concor Construction Under scrutiny was the legal effect of interim payment certificates. The court held that none of the contractual provisions granted interim payment certificates the
t/a Conradie 3.1, 3.3, 13.3, character of something that vests an absolute or temporarily final right to payment of the amount certified thereby if it is in dispute. That nothing was found or had been
Development and Western Cape High Red Book 1st 14.3, 14.6, 14.7, referred to that indicated the first respondent waived or abandoned the right to raise a contractual defence to resist a claim for payment in terms of an IPC.
2023 Link
Another Court, South Africa Edition 1999 20.1, 20.2, 20.4,
(20967/2021) [2023] 20.6 The court held that the parties agreed that the arbitration would finally settle their disputes, therefore, the applicant could not obtain enforcement of the disputed IPC
ZAWCHC 161 (10 July prior to the final arbitration award, save insofar as the first respondent's admitted indebtedness. Accordingly, the certificate would only be enforceable to the extent of its
2023) consistency with the award. For this reason, the court found the application premature prior to completion of the arbitration proceedings since the right to payment of the
balance of IPC no.17 would be determined by the arbitrator's award.

Regarding IPC 18, the court held that nothing in the contract prescribed the form of IPCs and it was deemed immaterial that it was not signed by the Engineer. However,
the court held that it was doubtful that Sub-Clause 14.6 provided the Engineer with authority to issue a certificate correcting an earlier contested certificate which was the
subject of arbitration proceedings as that would trench, impermissibly, on the arbitrator's function concerning the dispute. Accordingly, such purported correction or
modification could not be deemed to have been properly made within the meaning of the relevant phrase under Sub-Clause 14.6. The first respondent was ordered to pay
the admitted indebted sum under IPC no. 17, together with interest, the applicant's application otherwise was dismissed, and various orders on costs were made.

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The project concerned an upgrade of 2km of road in the Eastern Cape. The original contract period was 18 months, but the plaintiff applied for and was granted an
extension of time. However, the project overran the extended date by an additional 11 months for which the plaintiff neither applied for, nor was granted, a further
extension of time, entitling the defendant to delay damages. Two IPC 36's were issued, one on 6 August 2015 and a revised IPC 36 on 1 September 2016, which the
Lonerock defendant asserted was agreed by the parties (signed) and replaced the previous one. The second IPC 36, the centre of this dispute, was issued not only deducting sums for
Construction v South delay damages, but also excluding payment to the plaintiff for preliminaries and generals (P&G) and a contract price adjustment (CPA). The dispute before court was
African National High Court at whether or not the plaintiff was entitled to be paid its P&Gs and the CPA certified under the first IPC 36.
Roads Agency (SOC Gauteng Division
2023 1999 Red Book 14, 20.2 Link
Limited) [2023] Johannesburg, In relation to P&Gs, the court held that the contract was clear – unless the plaintiff receives an eot, it is not entitled to its P&G for that period. The plaintiff did not apply for
ZAGPPHC 2245; South Africa one.
89831/2018 (27 June
2023) As to the amendment of IPC 36, it cannot be withdrawn and its only amendment is to be in the form of a further interim payment certificate. The court held that Sub-
Clause 14.6 clearly provides that an amount may be rectified in a subsequent payment certificate or under the final accounting exercise pursuant to Sub-Clause 14.13.
Accordingly, the defendant had no right to object to this IPC and the Engineer had no right to amend it. As to the defendant's assertion that the parties agreed to replace
this IPC, no waiver or acquiescence was pleaded or properly proven. The plaintiff succeeded in its claim.

DIFC Court of Appeal revisited the question as to when a FIDIC Sub-Clause 20.1 28-day notice must be given and challenged the findings of Mr Justice Akenhead in
Panther Real Estate
Obrascon Huarte SA v Attorney General for Gibraltar.
Development LLC and
Red Book, First 1.9; 3.5; 8.4; 8.7; The Court of Appeal agreed with the Court of First Instance and held that the 28-day notice period is triggered by the event or the circumstance giving rise to the claim for
2023 Modern Executive Dubai Link
Edition, 1999 20.1; 21.1 an extension of time and not by the delay or likely delay under Sub-Clause 8.4.
Systems Contracting
In relation to the time limitation pursuant to Sub-Clause 3.5, the Court of Appeal held that unless the 14-day notice of dissatisfaction is given within that time period, the
LLC
Engineer's determination stands.

Judgment concerning the applicant's application for leave to appeal a judgment dismissing its application to appeal an arbitration award.

The central issue before court was whether the arbitration agreement between the parties denied them the opportunity to seek leave to appeal an arbitration award on
errors of law. The court noted that the Arbitration Act contemplated three different scenarios regarding appeals to the court on questions of law - the arbitration
Tower-EBC agreement may expressly provide for, be silent on, or preclude such appeals.
G.P./S.E.N.C. v.
Baffinland Iron Mines In this case the arbitration agreement did not positively provide that a party could appeal an award. The applicant sought leave to appeal on the basis that the arbitration
LP and Baffinland Iron agreement did not address appeals at all, including appeals on questions of law. The application judge dismissed the request for leave to appeal and held that the
Ontario Court of Red Book 4th
2023 Mines Corporation, 20.6, 20.7 arbitration agreement (contract) dealt with appeals - it precluded them by saying that disputes would be "finally settled" by arbitration and by incorporating the ICC Rules, Link*
Appeal, Canada Edition.
Judgment of the including the rule stating that parties agreed to carry out any award and waived any form of recourse. In short, leave to appeal was not possible, both under contract and
Court of Appeal of the ICC Rules, thus the precondition to seeking it under s. 45(1) of the Arbitration Act was not met.
Ontario 2023 ONCA
353 - 16 May 2023 The applicant sought to: (i) reverse the application judge's decision about the arbitration agreement precluding appeals on questions raised; (ii) grant leave to appeal on
the questions raised; and (iii) for the appeal itself to be determined by the Superior Court.

The application was dismissed and the court found that the application judge made no reversible error in correctly concluding that the arbitration agreement precluded
appeals to the court on any question, including questions of law.

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

An application to set aside an arbitral award, on the basis that the arbitration proceedings were contrary to the Commercial Arbitration Law and the award violated the
basic principles of the law of Vietnam, on the following 4 grounds: (1) the tribunal violated the regulations on the statute of limitations for commencing legal proceedings;
(2) the award violated the basic principles of fair, equitable and non-discriminatory treatment; (3) the award violated the basis principles of evidence evaluation pursuant to
Decision the Civil Procedure Code; and (4) the award violated the basic principles of freedom, voluntary commitment and respect for the parties' agreement.
868/2023/QD-PQTT,
D2 Joint Stock People's Court of As to the first ground, the period pursuant to the statute of limitations for filing a lawsuit had expired, the tribunal nonetheless accepted the referral. The court held that
2023 Company v T Public Hochiminh City, Silver 1999 2.5 the award was inappropriate and the violations of procedural errors were irreparable. The court confirmed that the award was contrary to the basic principles of the law of Link
Company Limited and Vietnam Vietnam and the provisions of the Commercial Arbitration Law, and the court accepted the request to set aside the award.
TVC Company Limited
(5 June 2023) The court also agreed with the second ground, but disagreed with the third ground on the basis that an application to set aside an arbitral award was not an opportunity for
a retrial of the content of the dispute. Concerning the fourth ground, which related to Sub-Clause 2.5 [Employer's Claims], the Contractor argued that the Employer failed
to issue a valid Sub-Clause 2.5 claim, and therefore, lost its right to claim. The court disagreed with this and held that the contract did not contain provisions limiting the
Employer's claim against the Contractor.

Judgment concerning an appeal, brought by both parties.

The plaintiff's partial appeal. The plaintiff's appeal concerned a claim for damages resulting from the defendant's unilateral termination. The court, however, found that the
breach of contract was entirely the plaintiff's fault and that the defendant's termination was valid. The court held that the plaintiff had to bear its own damages.

The plaintiff asserted that the slow progress was caused by the defendant, due to: (1) late handover of the premises; (2) late payments by the defendant; and (3) slow
approval of VOs. In respect of the first, the court agreed that the site handover was late. As to late payments, the court rejected the plaintiff's arguments on the basis that
by the date of termination the plaintiff received an amount beyond the actual value (advanced payment plus payments received during construction). Regarding late
approvals of VOs, the court disagreed with the plaintiff on the basis that the latter did not comply with the contractual procedures. The plaintiff further asserted that the
defendant implicitly extended the contractual period for completion by agreeing to extend the advance guarantee and performance guarantee. The court rejected this
Decision
argument, and held that those are only measures to ensure financial security when executing the contract, and did not automatically extend the contract.
66/2023/KDTM - PT,
Mac Construction People's Court
3.1, 7.5, 7.6, 8,7, The defendant appealed the entire judgment on the basis that the court of first instance failed to fully consider the agreement between the parties and specific evidence
2023 Joint Stock Company Hanoi City, Red Book 1999 Link
13.1, 13.3, 15.2 when allowing the plaintiff's request, and by denying the defendant's counterclaim. The defendant asserted that as a result of the contractor's delayed progress, it had to
v BTC Joint Stock Vietnam
reduce the contractor's scope of work and employ and assign those over to other contractors in order to progress the project (decreasing the contractor's contract, the
Company (11 April
parties agreed the fair value).
2023)
The defendant sought payment for damages, for: (1) delay damages; (2) difference paid by the defendant to replacement contractors; (3) compensation for materials left
overdue, damaged, or lost by the plaintiff; (3) damages for costs incurred due to delay in handing over the site to the interior finishings contractor; and (4) remedial costs.
The court granted all, except #3 (materials), of the defendant's counterclaims. The defendant also appealed against the decision that the advance guarantee was no longer
valid. The court noted that defendant's termination due to the plaintiff's fault, does not take away the right to request performance of the guaranteed obligation and that
the bank had an obligation to perform. Both the guarantee to repay the advance payment and the contract performance guarantee were held to be unconditional and
irrevocable. The court further noted that the guarantor was entitled to request repayment from the claimant, failing which, it was entitled to liquidate assets of the
claimant held as collateral.

On the above basis, the court accepted part of the plaintiff's appeal, partly accepted the defendant's appeal and amended the judgment of the court of first instance.

Howard Kennedy LLP, May 2024 8

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Dispute concerning the Respondent's failure to settle outstanding invoices, which breach led to the Claimant suspending the works and demobilising. The Claimant's claims
included: (1) payment of the outstanding invoices; (2) payment of the remaining contract value for the services which were supposed to be performed until the end of the
contract; (3) interest; and (4) and order directing the Respondent to return to the Claimant the performance bond and legals costs associated with opposing the call before
the Dubai Courts. The Respondent failed to file any submission during the normal course of the proceedings, instead after the closing of pleadings and without leave from
the Tribunal, filed an application making submissions on alleged fraudulent representation and legal consequences. The submissions and evidence produced were declared
inadmissible.

Pursuant to Sub-Clause 8.1.1 the parties attempted to resolve the dispute amicably. Two meetings between the parties were noted, with the Claimant's representatives
Cardno Me Limited v.
arrested during the second meeting, which effectively ended any reasonable prospect of amicable resolution between the parties. The Claimant issued a notice of
Central Bank of Iraq,
White Book 4th mediation in accordance with Sub-Clause 8.2.1, which received no answer from the Respondent. The Claimant elected not to request the appointment of a mediator and
2023 ICC Case No. Paris, ICC 5, 8.1.1, 8.2 Link*
Edition 2006 asserted that Sub-Clause 8.2.1, by use of the word may, granted an option to request that the mediator be appointed. The tribunal found that the word may does not make
26290/AYZ/ELU, final
mediation optional as such interpretation would be irreconcilable with Sub-Clause 8.2.7. The tribunal had to decide to what extent the Claimant was entitled to commence
Award 26 Feb 2023
the arbitral proceedings in light of its failure to comply with Sub-Clause 8.2.7. Under French law the issue of non-compliance raised a question of admissibility and not one
of jurisdiction and that under French law such non-compliance could be excused on the grounds of futility – the claims were held to be admissible.

As to the claims, the Tribunal found that the invoices were validly dispatched in accordance with Sub-Clause 5, the principles of good faith and estoppel. On the basis that
the Respondent failed to contest the invoices in accordance with the time-limit and mechanism under Sub-Clause 5, the Claimant had a contractual right to payment.
Accordingly, the Respondent breached its payment obligations by failing to make payment within 30 days, was held to have no valid reasons for non-payment and was
ordered to pay the outstanding amount plus interest.

Re the remaining value of the contract. The Claimant asserted that under Iraqi law, damages are recognised to include loss of profit to the extent this is reasonably
foreseeable and would definitely be incurred in the future. The Claimant was wrongly deprived of the outstanding value as a result of the Respondent's unjustifiable breach
of contract, which forced its suspension and demobilisation. The Respondent was ordered to pay those damages, consisting of actual losses (salaries and other costs) and
loss of profit, plus interest.

With regards to the Claimant's claim in relation to the performance bond. The Tribunal held that there was no evidence to indicate that the Claimant breached any of its
contractual obligations, the Respondent therefore wrongfully called the guarantee and accordingly the costs incurred to oppose the call had to be compensated for in
accordance with the Iraqi Civil Code. Further, pursuant to Sub-Clause 5.1.5, the Tribunal held that the guarantee had to be released and that the Respondent should no
longer be able to call on the guarantee, and ordered the Respondent to take the necessary steps to release it.

Howard Kennedy LLP, May 2024 9

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Judgment concerning the appeal of the appellant (project manager and also Employer) who commenced proceedings against the respondent (contractor), alleging
fraudulent misappropriation of construction materials - imported prefabricated houses (to accommodate workers on the project site). The structure was imported from
Singapore by the Respondent, cleared through customs, but never delivered to site. The contract was terminated by the Appellant. The structure was not returned to the
Appellant, which it asserted should have devolved to it upon completion or termination of the contract. The Respondent asserted that ownership in the structure did not
pass to the Appellant, that it had used it to discharge its obligation under the contract (to provide accommodation), that temporary facilities provided under the contract
always remain the property of the contractor, and that it was under a duty to remove it following the Appellant's termination of the contract since only permanent works
devolve to the Employer.
Eastern European
The appellant appealed on grounds that the trial judge erred by: (1) allowing the respondent to amend its pleadings after close of pleadings; (2) an incorrect interpretation
Engineering Limited v
of Sub-Clause 16.2 of the contract; (3) failing to find that pursuant to Sub-Clause 16.2 the appellant was the owner of the prefabricated houses; and (4) finding that the
Vijay Construction
Seychelles Court of respondent had no obligation to build living quarters for the workers.
2022 (Proprietary) Limited) Not specified 15.2 and 16.2 Link
Appeal
(MA 35 of 2022)
The appellant failed on all 4 grounds, accordingly the application was dismissed.
[2022] SCCA 56 (21
October 2022)
As to ground 1. The court found that the amendment had to do with evidence which had already been introduced during the hearing and without objection by the
Appellant. Accordingly, it was found that the amendment was to align the pleadings with the evidence subject to the Appellant's right to adduce evidence relating to the
new pleading. Ground 1 thus had no merit and was dismissed.

Grounds 2 – 4 related to the interpretation of and applicability (scope and limitations) of Sub-Clauses 15.2 and 16.2. The court considered the items of work that must be
returned to the Employer, and held that 'other work' related to the Permanent Work and not temporary work. Therefore, Sub-Clause 15.2 applied, not Sub-Clause 16.2. The
court also failed to see how the prefabricated house imported by the Respondent could be the property of the Appellant. The court also found that the contract did not
require the respondent to build living quarters for the workers on the site.

Decision
1230/2022/QD-PQTT, An application by the defendant to set aside an arbitral award on the grounds that there was no arbitration agreement, as the legal representatives of either company had
People's Court of
BG Vietnam Company not signed the agreement. The signor of the agreement for the defendant was not the legal representative of the company and only occupied a managerial role who had no
2022 Hochiminh City, Red Book 1999 None Link
Limited v BW authority to sign the letter of acceptance on behalf of the defendant. The court set aside the award on the basis that there was no legally established arbitration agreement
Vietnam
Company Limited (5 between the parties.
August 2022)

Arabian Jacking
Enterprises for
Contracting & Trading
Company (AJECT) v Appeal challenging judgment dated 31 March 2017 of the High Court of Bombay in a dispute between the same parties. The appeal was successful and finding that the
Municipal arbitral tribunal did not fail to exercise its jurisdiction, the court upheld the original tribunal's award.
2022 India Not specified 70 Link
Corporation of Further, the court held that pre-bid data cannot override the particular conditions of contract as it would reduce the FIDIC Contract to a shadow of itself. A price
Greater Bombay, adjustment clause that allows for both escalation and reduction of price is a commercial term and does not constitute unjust enrichment.
through the Chief
Engineer (SP) Cement
Godown Building

Howard Kennedy LLP, May 2024 10

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

An application to set aside an arbitral award.

Decision
The parties agreed to terminate the contract, and referred three main disputes (claims) to arbitration: (1) the value of the completed works; (2) value of works outside of
578/2022/QD-PQTT,
People's Court of the original scope of works; and (3) costs and damages as a result of delays to the works.
ACC PCN Joint Stock 1.4, 16.4, 17.1,
2022 Hochiminh City, Red Book 1999 Link
Company v TT CR 20.6
Vietnam The arbitral tribunal issued and award, which the court was asked to set aside on the basis that the arbitrator's decision was contrary to the basic principles of the law of
Joint Stock Company
Vietnam, since the award: (1) did not consider the plaintiff's request for loss of costs arising from the change in scope of works (contract adjustment regarding the height of
(9 May 2022)
the buildings); and (2) the tribunal made a decision on the payment of the warranty amount which was beyond the plaintiff's request. The court agreed and ordered for the
award to be set aside.

This dispute relates to a road works project in Papa New Guinea. The Main Contractor, China Railway Company International (PNG) Ltd, contracted with the Government
for the construction of 65km of road. The main contract adopted the terms of the FIDIC Pink Book 2005.
The Defendant Covec, a subsidiary of the Main Contractor, sub-contracted 13km to the Claimant. This was subsequently reduced to 7.25km by a Complementary
Jay L W Contractors
2022 Papua New Guinea Pink Book 2005 14.2 Agreement as they were falling behind. Link
Ltd v Covec PNG Ltd
Whilst the main contract made provision for an Advance Payment per Sub-Clause 14.2 [Advance Payment], Schedule B of the Sub-Contract specifically stated that this did
not apply to the Sub-Contract, even though the Claimant was required to pay the Performance Security.
Even though the claimant received K799,325.60 for mobilisation, the court dismissed their action for 10% of the sub-contract value.

Masosa Construction This claim relates to a sub-contract to build schools in Kenya as part of the Northern Corridor Transport Improvement Project. The subcontractor was sourced, approved
Limited V SBI and selected / nominated for the project by representatives of the Employer.
Red Book 4th
2022 International Holdings Kenya 59.1 The Court considered whether the subcontractor was a nominated subcontractor by reference to Sub Clause 59.1 [Definition of "Nominated Subcontractors"] of the FIDIC Link
Edition 1987
AG (KENYA) & 2 Red Book 4th edition (1987). Reference was also made to the 3rd Edition of the Building Contract Dictionary.
Others The Court considered it was glaringly evident that the subcontractor was the Employer's nominated subcontractor.

The claim relates to the suspension of works by the First Respondent (Contractor) for non-payment of funds by the Applicant (Employer) which had been certified by the
Second Respondent (Employer's Representative).
The Employer alleged that the Contractor had breached their contract by suspending works and for not giving requisite notice per Sub-Clause 16.1 [Contractor’s
Entitlement to Suspend Work].
The Employer applied for an order for specific performance also alleging that the Contractor had failed to achieve mandated performance levels.
The Court noted that the contract provided for payment certification in Sub-Clause 14.7 [Issue of Advance and Interim Payment Certificates] and payment in Sub-Clause
14.8 [Payment]. The Court noted that Sub-Clause 14.8 did not require a formal notice to be raised for non-payment.
Ndlambe Local The Contractor informed the Employer that payment was overdue on 09/09/2022 in breach of Sub-Clause 14.8. The letter was not produced before the court. On
Municipality v Quality 26/09/2022 the Contractor issued a letter marked as a notice, referring to the letter dated 09/09/2022 and stating it would suspend work on 30/09/2022 if payment was
Gold Book 2008 1.3, 14.7, 14.8,
2022 Filtration Systems South Africa not satisfied. The Employer objected that the Notice was not contractual, giving them only 4 days to resolve matters and did not sufficiently refer to Sub-Clause 16.1. Link
16.1, 16.2, 20
(Pty) Ltd and Another The Court did not agree. Acknowledging it did not possess the letter dated 9 September 2022 it held that the letter dated 26 September 2022 was a reminder and that the
(3574/2022) Employer would have been fully aware of the potential suspension. As the Contractor was entitled to suspend the works the Employer's request for an order of specific
performance failed.
Sub-Clause 16.2 [Termination by Contractor] was discussed but only in the context of this being a consequence had the Applicant failed to resolve the non-payment of
funds. Sub-Clause 1.3 was referenced as requiring a notice to be described as such and that it must include a reference to the clause under which it is issued.
During the application proceedings the Employer referred to a DAB decision against the Contractor and penalties awarded to the Employer which were meant to set off
against IPC payments. The Court noted that it was important that neither of the IPC's the Employer failed to pay in full referred to a DAB decision or an entitlement to make
deductions. The Court added that the Employer made no mention of the DAB proceedings until the Reply stage and that they were initiated after the application in hand
was issued.

Howard Kennedy LLP, May 2024 11

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Albanian Road
Authority v. Aktor
S.A., Copri Multilateral
This was an application for annulment of an arbitral award relating to contracts for construction of a road in Albania. The application alleged lack of jurisdiction of the
Construction Development
France: Paris Court arbitral tribunal and a violation of international public policy. The arbitral final award is dated 2020 and shown in this table below. On jurisdiction, the court found that the
2022 Enterprises W.L.L., JV Bank Link
of Appeal common will of the parties to submit their dispute to arbitration, which had not been disputed under the initial contracts, had not been altered by the conclusion of two
Copri Construction Harmonised
amendments to the dispute resolution process, and so dismissed the application. On public policy, the court did not find a violation, and so dismissed the application.
Enterprises WLL & Edition 2005
Aktor Technical
Enterprise

This project experienced lengthy and unanticipated delays in obtaining necessary permits, the absence of which led BIM to send notices of termination to TEBC pursuant to
Tower-EBC
the Contracts. TEBC challenged BIM’s right to terminate the Contracts and claimed damages arising from the termination, including recovery of outstanding standby
G.P./S.E.N.C. v.
charges, the cost of spare parts and the loss of profit.
Baffinland Iron Mines
Ontario Superior The arbitral tribunal awarded TEBC damages for breach of contract and costs against BIM. BIM brought an application for an order: to set aside the awards, to grant BIM
2022 LP and Baffinland Iron Bespoke FIDIC 20.6 and 20.8 Link*
Court of Justice leave to appeal, and if appeal is granted, an order granting the appeal and setting aside or varying the awards as necessary.
Mines Corporation
The application was dismissed on the basis that there were no grounds upon which to set aside the Award pursuant to s. 46 of the Arbitration Act 1991, S.O. 1991, c.17 (the
ONSC 1900 (11 April
"Act"), either with respect to lack of jurisdiction or failure to be treated equally and fairly. The court further confirmed that BIM could not rely on s. 45(1) of the Act to
2022)
obtain leave to appeal as the arbitration agreement between the parties precluded an appeal from any decision of the Tribunal.

A review of the Court of Appeal's decision concerning a dispute relating to the Contractor's (co-respondent) failure to fulfil payment obligations to the Subcontractor
(plaintiff) and the interpretation of Sub-Clause 59.5 of the 1987 FIDIC Red Book. The parties entered into a subcontract, wherein the Subcontractor provided mechanical
and electrical services to the Contractor, who was employed by HVTS (the Employer, together the Respondents). During the project, the claimant's value of works carried
out increased beyond the initially agreed amount. Upon completion of the project, the claimant submitted requests for payment from the Contractor, which was paid in
part (the original contract amount). The claimant commenced proceedings against both the Contractor and Employer for the outstanding amount, against the latter
pursuant to Sub-Clause 16.7 of the subcontract which specified that pursuant to Sub-Clause 59.5 of the Main Contract (1987 Red Book), the Subcontractor was entitled to
Decision
receive certified payments, not made by the Contractor, directly from the Employer. The claimant (Subcontractor) asserted that the Employer was liable for payment on
03/2022/KDTM-GÿT,
behalf of the Contractor as a result of the latter's breach of its payment obligations.
R Joint Stock
Company (REE) v
8.2, 10.1, 16, 20.1 The respondents (HVTS together with BUCG) argued that the claimant was only entitled to the initial amount, due to various factors during the project, including: fines
Company B Red/Yellow Book
People's Supreme (subcontract), and relating to safety violations, construction quality issues, violating the construction schedule, previously agreed negotiations between the parties to cut or change certain
2022 (International 1999, and 1987 Link
Court, Vietnam 59.5 of the 1987 expenses, and a warranty fee, of which the respondents were entitled to keep 50% up to 2 years after the completion of the project. The respondents also argued that the
Construction Red Book
Red Book claimant was not entitled to payment from the Employer as the project manager had not issued a Taking Over Certificate (10.1) nor had they confirmed that the contractor
Company Limited B)
had not paid in full. Both the Court of first instance and Court of Appeal agreed with the Claimant.
and Limited Liability
Company H (22
The Supreme Court, however, disagreed with the preceding judgments. The Supreme Court held that the conditions in the subcontract agreement were not met (i.e., the
March 2022)
Taking Over Certificate), and that the correct interpretation of Sub-Clause 16.7 (referring to Sub-Clause 59.5) was that the Subcontractor merely had a right to receive
payment from the Employer (provided that it was certified), and not a right to claim payment from the Employer on the basis that the Employer was not a party to the
agreement. Further, the court held that the Subcontract and other agreements between the claimant and Contractor took precedence over the principle of 'fairness', and
that the claimant had agreed to the provisions deducting certain fees and allowing the Contractor to maintain part of their fees as a warranty fee.

The preceding judgments were overturned, and the matter was sent back to the lower court for retrial.

Howard Kennedy LLP, May 2024 12

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Judgment concerning the interpretation of Sub-Clause 20.1 and its compliance with Polish law. In the case, the Court of Appeal held that notification period contained in
The Supreme Court FIDIC by the Contractor of the circumstances constituting grounds for demand for additional remuneration, does not have the same effect to a reduction of the limitation
2022 II CSKP 217/22 of the Republic of Not specified 20.1 period, and does not violate or circumvent Polish laws as the parties agree such time-limits voluntarily under the principle of freedom of contract. The court confirmed the Link
Poland position that the inclusion of this clause in the FIDIC contracts are to ensure that the Employer is positioned to predict the amount necessary to finance the performance of
the contract.

Decision
The court had to consider the interpretation of Sub-Clause 2.4 [Employer's Financial Arrangements ]. Pursuant to the contract, the Employer had to issue a bank payment
06/2022/KDTM-PT,
guarantee to the Contract in accordance with the agreed form. The Employer, when issuing the payment bank guarantee, however, unilaterally and without the
Thuan H Joint Stock People's Court
Contractor's consent changed some of the contents. The Contractor did not agree with those changes and suspended the works, which was followed by the Employer's
2022 Company v Textile Hanoi City, Red Book 1999 2.4, 15.2, 16.1 Link
termination of the contract. The Employer sought damages from the Contractor pursuant to Sub-Clause 15.2, asserting that the Contractor suspended the works without
and Dyeing Joint Vietnam
reasonable excuse. The court disagreed and held that the Employer's unilateral change was in breach of Sub-Clause 2.4. Accordingly, the Contractor's suspension was found
Stock Company (13
to be valid.
September 2022)

Following completion of the works, the plaintiff issued a claim for payment of outstanding payment certificates, interest, and cost. The defendant disputed the claim on
Haraf Traders Limited
grounds of breach of contract by the plaintiff, including substandard work and a unilateral extension of performance of the Contract. The parties reached settlement of the
v Narok County
In the High Court principle sum outside of court. The only issue left for determination, therefore, was whether costs and interest on the principal sum were awardable and chargeable,
2022 Government [2022] FIDIC Fourth 2.2, 16.1, 60.10 Link
of Kenya at Narok respectively, in light of the parties’ settlement and the lawful steps taken in pursuit of remedy. Notwithstanding the allegations of breach of contract against the plaintiff,
eKLR (Civil Suit 1 of
and in exercise of its discretion ‘in order to meet the interests of justice for both parties’, the court found no reason to deny the plaintiff costs. The court, however,
2019)
declined to award interest on the principal sum.

The matter before court concerned an application to review and set aside an arbitration award.
Pro-Khaya
This review was confined to the procedural irregularity and the court did not have to decide on the merits of the counterclaim. The Applicant argued that it was not
Construction CC v
In the High Court afforded an opportunity to present evidence or arguments on its counterclaim and that the First Respondent (arbitrator) committed a gross irregularity in the conduct of
2021 Tony Ashford and Not specified 3.3 Link
of South Africa the arbitration proceedings. This was confirmed by the court. The court noted that the First Respondent in his email acknowledged that some further representations on
others 1107/2020 (19
the counterclaim would warrant consideration and that no evidence was presented on the counterclaim. The court found that the First Respondent’s failure to afford the
January 2021)
Applicant an opportunity to lead evidence and/or make submissions caused severe prejudice to the Applicant and prevented a fair trial. The award was set aside.

The dispute involved a road rehabilitation project in Ukraine. There were two contracts and both provided that disputes should first be submitted to a Dispute Board then,
State Road Agency of Not stated if necessary, to ICC arbitration as set out in clauses 20.4 to 20.7 of the contracts. Disputes were duly submitted both to a Dispute Board and ICC arbitration. The arbitral
Ukraine - Ukravtodor Cour d'appel de although tribunal issued a first partial award in which, among other things, it held that decisions of the Dispute Board should be executed. Uktravtodor brought annulment
20.4, 20.5, 20.6,
2021 v. Todini Costruzioni Paris (Pole 5 - references to proceedings in the Cour d'appel de Paris in respect of this first partial award. Arguments before the court included alleged breach of the right to a fair trial, regarding Link*
20.7
Generali Spa, 9 March Ch.16) the FIDIC 2017 documentary evidence, jurisdiction of the arbitral tribunal, the application for annulment of the first partial award, alleged breach by the arbitral tribunal of article 1520(3)
2021 editions. of the French Code of Civil Procedure and alleged disregard of international public order (article 1520(5) of the French Code of Civil Procedure). The Cour d'appel de Paris
rejected the application for annulment of the first partial award.

Shapoorji Pallonji & In the High Court

The court was approached for injunctive relief requiring the beneficiary of the proceeds of a bank guarantee to reverse its call on the bond. The Court held that there were
Company Private Ltd of Justice Business
no conditions precedent to the making of a valid demand under the bond, other than the requirement contained in the bond. Court dismissed the application.
v Yumn Ltd & Anor and Property
2021 Not specified 8.7, 20.1 A further issue was whether the court should apply a different test to the strict English law principles in determining the grant of an injunction when dealing with an Link
[2021] EWHC 862 Courts of England
underlying dispute that an emergency arbitrator in a Singapore-seated arbitration would not be constrained to apply. The court noted that English law governed the
(Comm) (06 April and Wales
contract (FIDIC) and the bond, and rejected the argument that it should not apply established merits. The fact that Singapore law was the curial law was immaterial.
2021) Commercial Court

Howard Kennedy LLP, May 2024 13

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Toucan Energy In the High Court Dispute regarding the construction and sale of 18 industrial solar parks.
Holdings Ltd & Anor v of Justice Business Toucan alleged that Wirsol had failed to properly construct the solar parks such that they were defective and made further related claims, including blight and that it had to
Wirsol Energy Ltd & and Property refinance the debt of the project. Toucan further submitted that the alleged defects were such as to remove the premium that would otherwise be payable (FIDIC Silver
2021 FIDIC Silver Link
Ors [2021] EWHC 895 Courts of England Book template), which could never be restored.
(Comm) (14 April and Wales Court dismissed the vast majority of Toucan’s claim (and the claims for blight and consequential losses entirely) and awarded damages to Wirsol in terms of its
2021) Commercial Court counterclaim.

In the first application, ICT sought declaratory and interdictory relief to enforce the contract until its expiration in August 2025 (“the main application”). Whilst it was
accepted that the contract in its (then) current form was to expire in August 2025, the main application was opposed on the basis that the contract was unenforceable due
ICT-Works Proprietary In the High Court to a mistake relating to the duration of the contract and the person who signed the contract on behalf of the City lacked the requisite authority to sign a contract which
Limited v City of Cape of South Africa expires in August 2025.
1999 Yellow
2021 Town (6582/2020) Western Cape Court held that section 33 of the Municipal Finance Management Act 56 of 2003 did not prohibit contracts with a variable termination date. It was further argued that a Link
Book
[2021] ZAWCHC 119 Division, Cape standard FIDIC contract made provision for the issue of variation orders where there may be a delay in the completion of the Works or if the scope of the Works was to be
(18 June 2021) Town increased. This would invariably push forward the completion date of the project.
Court held that the contract entered into was clearly unlawful on the undisputed facts before it with regard to the section 33 process, and therefore, declared the contract
invalid and set it aside.
Bengaluru Water
Supply And vs M/S. Application to set aside an arbitral award relating to a water supply scheme (raw water transfer, water treatment plant, transfer of treated water to reservoirs) on public
Bangalore District
2021 Larson & Turbo Not specified 60.10, 67 policy grounds (including allegations that the plaintiff party was denied natural justice and that the arbitral tribunal failed to consider various claims). The court found that Link
Court
Limited, 27 August (in the 'peculiar circumstances' of this case) certain aspects of the award could be set aside but others maintained. The application was permitted in part.
2021, CCH84
SA National Roads Appeal against an interdict restraining the beneficiary of an unconditional performance guarantee (following termination of the contract) from making a claim under it,
Agency SOC Limited v pending an arbitration to resolve disputes arising from the execution of a building and engineering contract.
Fountain Civil Court held the High Court had no power to compel the parties to submit to arbitration to resolve their disputes. The effect of the high court’s order referring the disputes
The Supreme Court
Engineering (Pty) Ltd between the parties to arbitration, was to amend the contract.
2021 of Appeal South 1999 Red Book 4.2, 15.2, 16.3 Link
and Another It was held that Clause 4.2 does not require SANRAL to prove an entitlement under the contract before it can make a demand on the guarantee, on the basis that the
Africa
(395/2020) [2021] purpose of the performance guarantee ‘undoubtedly was to secure SANRAL’s position in the event of a dispute and pending resolution thereof’. Any other construction
ZASCA 118 (20 would render meaningless the indemnity in clause 4.2. A claim on the guarantee is permissible, regardless of disputes under the contract (unconditional). Appeal was
September 2021) upheld with costs.
Determination whether to set aside two preliminary arbitration decisions. The first arbitral decision considered was to determine whether the proper procedure was
followed to appoint the Arbitrator. The main point in contention was whether the UNICITRAL Article 8 list-procedure was applicable in the contractual framework governing
The National Gas
the Parties. Court held that there was no justification, either based on alleged non-compliance with UNICTRAL Article 8 procedures or breach of implied terms on
Company of Trinidad 1999 General
impartiality, to challenge the Arbitrator’s appointment, and no grounds for setting aside the First Award.
and Tobago Limited v. High Court of Conditions of First Award: 20.5;
The second decision was a Partial Award. The court had to decide whether the Employer failed to fulfil the condition precedent to its claim of having a duly appointed
2021 Super Industrial Justice of Trinidad Contract for Second Award: Link*
Engineer provide the assessments and if so, whether the claim should be dismissed. The challenge to the second Award succeeded in part. Court held that the Engineer’s
Services Limited and Tobago Plant and Design 15.4, 2.5, 3.5
determination of claims is a condition precedent to the Employer advancing its claim (Clause 3.4), however, failure in this respect does not preclude the referral to the DRC
CV2019-05069 (7 Build
(Dispute Resolution Centre of Trinidad and Tobago Chamber of Industry and Commerce) of a claim as there is no specific timeframe for the Engineer’s determination in
December 2021)
Clause 3.4. Issues regarding finalisation, revision or preparation of an Engineer's determination can be addressed in the arbitration proceedings. Court accepted
appointment of the Engineer.
FIDIC General
The National Gas Conditions of Court was approached to determine whether there was an error of law on the face of the Arbitrator’s Award in her construction of the contractual terms governing the
Company of Trinidad Contract for procedure to replace the Engineer, and whether the Arbitrator correctly applied principles on construction of written contracts in deciding that the (replacement) Engineer
and Tobago Limited v. High Court of Plant and Design was not properly appointed.
2021 Super Industrial Justice of Trinidad Build 1.1.2.4, 3.1, 3.4 Court dismissed the claim and held there was no detectable error of law in the Arbitrator’s construction of the contractual provisions. Further held that when Clauses Link*
Services Limited and Tobago Construction, 1st 1.1.2.4 and 3.4 are examined in the context of all other contractual terms the objective meaning still accords with the plain English meaning and that the literal meaning
CV2019-05197 (7 edition 1999 against the wider context does not yield a more commercially viable construction. Compliance with clause 3.4 as a condition precedent to replacement of the Engineer,
December 2021) ("the therefore, does not produce an unreasonable commercial result.
Conditions")
Shepherd
Technology and
Construction Ltd v Amended FIDIC Yellow Book. The judge held that an employer was entitled to withhold sums from the final milestone payment for a project that consisted of two distinct
Construction Yellow Book
2021 Drax Power Ltd 14 packages of work, even though the amounts withheld related to the first package, which had been completed some time earlier. Discussion (obiter) of applicability of set- Link
Court, England and 1999
[2021] EWHC 1478 off and abatement and requirements for interim applications.
Wales
(TCC)

Howard Kennedy LLP, May 2024 14

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
Dispute whether a contract for the operation of a coal processing plant was for a fixed period of 96 months or whether its duration was only until coal reserves at a certain
colliery became depleted, and in the meantime, whether the applicant should continue to pay the respondent the agreed fixed monthly contract price until the return of
Universal Coal
the Plant.
Development (Pty)
High Court of Applicant argued that the anticipated period inserted in the agreement was calculated on the initial proposed rate at which the coal reserve could be mined and processed,
Ltd v Mineral
South Africa 1.1.53, 1.5, 9.2, rounded off to 8 years (96 months). This was necessary because the standard wording of the FIDIC Gold contract required a time period, rather than a term until the coal
2021 Resources Gold Link
(Gauteng Division, 8.1, 8.2, 13 reserve is depleted.
Development (Pty)
Pretoria) Court found that there was a prima facie case that the contract included a tacit term or by way of interpretation that all the time clauses in the contract relating to
Ltd (33182/2021)
operation of the Plant should be read to mean until the depletion of the coal reserves or 96 months, whichever comes first. Respondent was directed, pending final
[2021] ZAGPPHC 839
determination of arbitration proceedings, to hand over possession, operation and control of the Plant within 24 hours from service of the court order, and to pay the
applicant’s costs.
China International
Water and Electric
Corporation v. Appeal for the annulment of the sole Arbitrator's award on the grounds of a lack of independence and impartiality. Court held the few examples cited with a view of
Paris Court of
2021 National Highway Not specified 20.6 establishing lack of impartiality were irrelevant and under cover of such lack the Applicant actually invited the Court of Appeal to review the merits of the final award, which Link*
Appeal
Authority (Pakistan), is prohibited. Action for the annulment against the award rendered was dismissed.
ICC 21004/CYK/PTA
(C-22431/PTA)
An appeal by the defendant seeking to set aside the court of first instance's judgment, due to the court's alleged failure to apply temporary emergency measures and an
alleged violation of on-site review and appraisal on the basis that the defendant's legal representative at the time of hearing was not properly appointed and, therefore,
was allowed to be present but not to attend. The appeal court agreed that Mr Quang was not the legal representative of the defendant. Regarding the interim measures,
the appeal court held that the measures were not applied since the dispute had been resolved by the court in accordance with the law and that this was not a basis to set
aside the first judgment. The temporary measures related to security on site, and the court held that pursuant to Sub-Clause 10.2, the plaintiff (contractor) was only
responsible for maintaining security and order on site during the construction process, which ended when the contract was terminated and the site was handed back to the
Decision defendant.
01/2021/KDTM-PT, As to the merits of the first judgment. The project concerned a commercial and housing complex building. It was the plaintiff's case that 7 phases of construction were
LG Foundation completed and all appropriate documents for payment instalments were issued, all in accordance with the regulations, accompanied by value-added invoices, and all
Construction Joint People's Court of documents related to its payment requests and advances were sent to the defendant. The defendant did not make payment to the plaintiff, in breach of its payment
2021 Stock Company v K Khanh Hoa Red Book 1999 4, 10.2, 16.2 obligations. The defendant asserted that this was as a result of poor quality of construction carried out by the plaintiff. Following several requests for payment, and a notice Link
Agricultural Materials Province, Vietnam to suspend, the contract was finally terminated pursuant to Sub-Clause 16.2. The plaintiff commenced proceedings against the defendant, claiming damages for late
Group Joint Stock payment: (1) payment of the entire amount outstanding, specifically the value of the completed phases 1 – 7 (the 7 instalments less the advance payment) plus interest;
Company (9 March and (2) damages caused by termination of the contract, including costs of labour, machinery, equipment and materials on site between the period of suspension until
2021) demobilisation. The plaintiff also requested the court to declare that its obligation to pay the performance bond to the defendant was not trigger as a result of the
defendant's breach of contract and that the guarantor (Bank D) did not need to fulfil its guaranteed payment obligation in accordance with the letter of guarantee.
The court found that the plaintiff validly terminated the contract and that the defendant was liable to pay the entire value of completed works (all 7 instalments) to the
plaintiff, on the basis that the acceptance records of the phases all confirmed the quality met the required technical standards.
Concerning the performance guarantee, the court noted that pursuant to Sub-Clause 16.2, the plaintiff had the right to terminate the contract due to the defendant's
(Employer's) breach of contract. The court further noted that the termination was in accordance with Sub-Clause 16.2, and therefore the obligation to pay the guarantee
deed to the defendant, was not triggered.
Challenge of an arbitral award on the basis that the arbitral tribunal lacked jurisdiction to decide the dispute pertaining to structural work and the roof top bar. The parties
initially entered into a contract for hardscape work, which FIDIC contract included a clause for arbitration. Following the above, two further (separate) agreements for roof
top and structural works were concluded between the parties, which the claimant held were not related to the first contract. It was the claimant’s position that only the
dispute with regard to the hardscape contract was referred to arbitration, and that it was not the intention of the parties to refer the dispute of all the three agreements to
M/S Nitesh Residency
Bangalore District arbitration.
2021 Hotels Pvt v M/S Ani Not specified Link
Court It was argued that the tribunal erred in its conclusion that the parties agreed to accept the arbitration clause in the FIDIC contract to be applicable to the roof top and
Marbles & Granites
structural works, and therefore, erred in finding that the disputed three contracts were arbitrable under single reference. Tribunal noted that a jurisdiction point can be
raised at any stage, however, jurisdiction has to be considered with reference to the facts of the case and it found that the work of the roof top bar and structural work
were also covered by the arbitration clause in the FIDIC contract. Court held that the award could not be considered as beyond the terms of the contract and the arbitrator
did not travel beyond the scope of the contract.

Howard Kennedy LLP, May 2024 15

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Joint Venture
between Aveng This was an appeal from the High Court decision summarised elsewhere on this table. The dispute related to clause 20 and whether site disruptions constituted force
(Africa) (Pty) Ltd and majeure. The JV asserted that SANRAL was restricted from calling up the performance guarantee on the basis that it would be unlawful since SANRAL allegedly had not met
Strabag International certain conditions in the underlying contract which JV considered limited its right to call up the guarantee. The High Court judge did not make a decision on whether or not
GmbH v South African The Supreme Court the right to call up the guarantee was limited by the underlying contract. The learned judge held that the JV failed to make out a prima facie case that disruption of works
2020 National Roads of Appeal of South Not specified 20 constituted force majeure, and dismissed the application but subsequently granted leave to appeal. Link
Agency Soc Ltd and Africa The appeal related to whether or not the first respondent was restricted by the underlying contract from demanding payment in terms of the performance guarantee
Another (577/2019) issued in its favour, i.e., whether the beneficiary of a performance guarantee could be prevented from demanding payment in a construction agreement dispute. Whilst the
[2020] ZASCA 146; court acknowledged the potential for development under South African law, it held that – similar to a bank guarantee - the autonomy of a performance guarantee allows it
2021 (2) SA 137 (SCA) to be called upon independently of the underlying contract. Appeal was dismissed with costs.
(13 November 2020)

Decision number
09/2020/QD-PQTT - H
Group v HC Industrial
Following its unsuccessful jurisdictional challenge, see decision 02/2020/QD-PQTT (summarised elsewhere on this table), the VIAC tribunal issued an award in favour of the
Design Joint Stock
plaintiffs. The defendant applied to the court to have the award set aside.
Company, NS Trading
People's Court Procedurally, the defendant sought this relief on the same grounds as its previous jurisdictional challenge – i.e., non-compliance with pre-arbitration procedures (DAB and
and Service Joint
2020 Hanoi City, Silver Book 1999 20.2 and 14.1 amicable settlement, pursuant to Sub-Clauses 20.2 – 20.5). The court rejected the defendant's position and found it was res judicata, on the basis that court had already Link
Stock Company, and
Vietnam pronounced itself on this issue under the decision of 02/2020.
M Construction and
Substantively, the defendant alleged that the tribunal failed to consider evidence relating to the applicable currency exchange rate. The court held that this fell within the
Investment
merits of the dispute, which were not subject to review in an application to set aside an award. The respondent's application was dismissed.
Consulting Joint Stock
Company (16
September 2020)

An appeal concerning a claim for damages following termination of the contract for works on the A&B Saigon Tower project in Nha Trang, Vietnam.

The disputes between the parties included delays to the project and poor quality of works, which the contractor failed to remedy, and which led to the plaintiff terminating
the contract. A new contractor was engaged to complete the works and carry out the necesary remedial works. The plaintiff commenced proceedings against the
defendant (contractor) claiming payment for: (1) delay damages; (2) refund of the sum with which the advance payment exceeded the actual construction value; and (3)
damages for completion and remedial costs necessary as a result of the defendant's poor quality of works (after deducting the liquidated value of machinery that remained
on site).
Decision
296/2020/KDTM-PT, People's Court of The defendant denied the allegations made against the quality of its work and that the plaintiff did not comply with the Sub-Clause 3.3 notice (to correct) provisions and
2020 A Joint Stock Hochiminh City, Red Book 1999 3.3, 8.7, 15.2 could, therefore, not hold the defendant liable for the remedial costs of its new contractor. It also asserted that both parties voluntarily agreed to terminate the contract. Link
Company v C Joint Vietnam The defendant further denied liability for delay damages, asserting in the first instance that the plaintiff did not have a valid construction permit, without which none of the
Stock (13 May 2020) progress milestones were valid. In any event, it rejected the plaintiff's interpretation of delay damages calculated at 12% of the value of the contract, and asserted that the
contract provided a rate calculated on the contract value of each violated part and not the entire contract value. The court ruled in favor of the claimant, finding the
respondent liable on all grounds.

On appeal the defendant did not present any new evidence, nor did they attend the appeal hearing. The Supreme Court dismissed the defendant's application and upheld
the original judgment in favour of the plaintiff. Notably, during the appeal proceedings the plaintiff corrected its claim for delay damages to comply with the law of
Vietnam, i.e., 8% of the value of the breached (delayed) contract – i.e., delayed volume (confirming that currently, under the law of Vietnam, FIDIC delay damages are
treated as a penalty and are therefore capped).

Howard Kennedy LLP, May 2024 16

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Court decision concerning a petition to reverse a VIAC (Vietnam International Arbitration Centre) tribunal's decision issued in respect of its jurisdiction.
Decision 02/2020/QD- Following a dispute between the parties, the plaintiffs commenced arbitration proceedings with the VIAC. The defendant challenged the jurisdiction of the tribunal,
PQTT, HC Industrial arguing: (1) that the plaintiffs commenced arbitration under Sub-Clause 20.6 prematurely, i.e., without following the mandatory DAB and amicable settlement procedures
Design Joint Stock required pursuant to Sub-Clauses 20.2 – 20.5; and (2) that the arbitration agreement only selected the procedural rules of the VIAC and Vietnam as the place of arbitration,
Company, NS Trading and did not specifically refer to it as the administering institution.
and Service Joint The plaintiffs asserted that they had no choice but to refer the dispute directly to arbitration on the basis that: (1) the respondent unilaterally took measures to recover
People's Court
Stock Company, and 20.2, 20.3, 20.6, certain provisional payments, which caused financial damage to the plaintiffs; and (2) that the parties had at that point been engaged in discussions for over two years in an
2020 Hanoi City, Silver Book 1999 Link
M Construction and 20.8 attempt to settle, and the DAB and amicable settlement procedures, therefore, would only have prolonged the dispute.
Vietnam
Investment The VIAC denied the defendant's jurisdiction challenge. The court agreed with the VIAC's decision and rejected the defendant's application. The court found that reference
Consulting Joint Stock to the VIAC rules was sufficient to demonstrate the parties' intention and choice of the VIAC as the administering institution. As to the validity of the arbitration agreement,
Company v Vietnam that was considered with reference to the Law on Commercial Arbitration (LCA). The court noted that non-compliance with pre-arbitration procedures was not listed as a
Chemical Group (23 legal ground under the LCA. The court further held that commencing arbitration without engaging in DAB and amicable settlement procedures were not inconsistent with
April 2020) the agreed dispute resolution mechanisms, also in light of the fact that the dispute remained unresolved despite extensive correspondence between the parties for a
period of over 2 years.

2.5; 4.10; The Technology and Construction Court rejected a sub-contractor’s claim that it had been entitled to terminate a sub-contract based on the FIDIC Silver Book 1999, instead
PBS Energo AS v Technology and 4.12;8.4; finding that it was the main contractor that had been entitled to terminate due to abandonment of the works by the sub-contractor. In reaching its conclusion, the court
Bester Generation UK Construction FIDIC Silver Book 14.5;14.6;15.7; made various findings in relation to (among other things) responsibility for ground conditions, implied terms relating to performance security, whether the rejection of a
2020 Link
Ltd [2020] EWHC 223 Court, England and 1999, amended 15.8; 16.2(b); valid extension of time (EOT) claim amounted to a material breach, the prevention principle in the context of abandonment of the works and whether the right to
(TCC) Wales 16.3; 17.3; 17.4; liquidated damages survived termination.
20.1 Case References: Triple Point Technology Inc v PTT Public Company Ltd [2019] EWCA Civ 230, 183 ConLR 24
Airports Authority of Trinidad and Tobago engaged Jusamco Pavers Limited to rehabilitate the runway. The contract appeared to be completed and retentions released
following the end of the defects notification period, but the parties engaged in discussions in relation to defective work and its rectification. Eventually, AATT was advised
to commence arbitration proceedings to preserve its position. JPL responded by denying liability for most of the defective works and refused to accept the appointment of
an arbitrator.
Airports Authority of
JPL argued that 1) there was an inordinate delay in commencing arbitration, 2) the dispute had not yet crystallised, 3) the Engineer had not been properly replaced and so
Trinidad and Tobago v
High Court of the determination was not valid and 4) a valid Engineer's determination is a pre-requisite to commencing arbitration.
Jusamco Pavers Yellow Book 2.5, 3.2, 3.4, 3.5,
2020 Justice of Trinidad Link
Limited, Claim No. 1999 20.1
and Tobago Held:
CV2018-02353 (17
1) Due to the negotiations, and the apparent good faith of JPL, the delay was not inordinate - AATT believed things could be resolved amicably.
February 2020)
2) The dispute had clearly crystallised, as JPL had denied liability for defects AATT was seeking rectification for.
3) AATT had not given the requisite notice in order to replace the Engineer, and JPL had refuted its appointment. However, the Court noted that consent must not be
reasonably withheld, and obiter stated that in this case, it appeared that JPL would have refused consent to any engineer, as it would not want AATT to get an engineer's
determination as preparation for arbitration, and so hinted that this would likely be a situation in which consent was unreasonably withheld.
4) An engineer's determination is not a pre-requisite to commencing arbitration.
GCC JV AEC v
Rajasthan Urban
Infrastructure High Court of
2020 FIDIC 2008 20.8, 20.11 Application to appoint an arbitral tribunal to adjudicate disputes between the parties after failure to appoint a DAB. The court granted the application. Link
Development Rajasthan at Jaipur
Program, 6 March
2020

Junior Sammy Extensive road works were completed by Junior Sammy (Contractor) in 2016 for its Employer EMBD. Approximately USD 82 million was certified for payment for those
Contractors Limited v works by the Engineer issuing 7 IPCs. The IPCs remained unpaid for 3 years, which led to the Contractor instituting a claim against the Employer, seeking recovery of half of
Estate Management In the High Court the Retention Monies which it claimed they were entitled to pursuant to Sub-Clause 14.9, on the basis that the Engineer had issued the taking over certificate and on the
and Business of Justice Republic 14.3, 14.6, 14.7 basis that the Defects Notice period had come to an end.
2020 1999 FIDIC Red Link
Development Limited of Trinidad and and 14.8 The defendant raised three defences: (1) due to the assignment of all their receivables under the contract to a third party, the latter was the only party with the right to
(Claim No. CV2018- Tobago institute proceedings; (2) the IPCs were incorrect and allegedly could be re-opened; and (2) the defendant had not been able to conclude its analysis of the IPCs since it was
4840) (11 March awaiting specific disclosure of documents. Following the defence, the claimant brought an application for summary judgment, and the defendant almost simultaneously
2020) filed an application for specific disclosure. The court granted the claimant summary judgment against the defendant and dismissed the application for specific disclosure.

Howard Kennedy LLP, May 2024 17

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
Italian Thai
4.1, 67, 12.1,
Development Public v New Delhi High Challenge to an arbitral award (which followed a DRB decision). Disputed: 1) Refund of liquidated damages; 2) Payment for ground investigation; 3) Payment of withheld
2020 Not specified 42.2, 44, 73, 12.1, Link
Mcm Services Ltd, 27 Court certified amount; 4) Interest. Arbitral award upheld.
67
May 2020

Following summary judgment (in favour of the claimant) and the dismissal of its application for specific disclosure (see above judgment dated 11 March 2020), the
Estate Management defendant filed its appeal against both decisions as well as an application for stay of execution pending an appeal. This judgment concerns the latter application in which
& Business the court was engaged to exercise its discretion to order a stay of execution, whilst recognising the starting principle that a party is not lightly to be deprived of its
Development judgment. The court recognised that giving effect to the overriding objective may warrant a practical common-sense approach in balancing the relative risk of harm to both
Court of Appeal,
Company Limited v parties while the appeal is pending.
2020 Republic of 1999 FIDIC Red 14 Link
Junior Sammy Main question the court had to answer was whether there was a risk of injustice to either of the parties if the stay was granted or refused, and secondly if a stay would be
Trinidad & Tobago
Contractors Limited appropriate, what terms or conditions would be appropriate which are also just and proportionate in the circumstances. The court considered the following: (1) whether or
TT 2020 CA 31 (29 not EMBD demonstrated that its appeals have a good prospect of success; (2) that it would be ruined, or its appeal otherwise stifled if forced to pay JS immediately instead
June 2020) of after the (unsuccessful) appeal; and (3) the risks that JS would be unable to enforce the judgment if the stay is granted and EMBD’s appeal fails.
The court found that a stay of execution on specific conditions was warranted.

Crsc Research and

8.4, 19.1, 19.2,
Design Institute
19.4, 19.7, 15.2,
Group Co. v
Yellow Book 15.1, 8.2, 1.1.3.3,
2020 Dedicated Freight Delhi High Court A terminated contractor sought an injunction restraining the employer from calling on various guarantees under the contract. The contractor's petition was denied. Link
1999 3.5, 20.2, 15.5,
Corridor Corporation
15.3, 15.4, 2.5,
of India Ltd & Ors, 30
4.2
September 2020

Maeda Corporation
and China State
Construction Similar notice
Hong Kong Court Appeal from the 2019 High Court decision. Appeal dismissed. The Court of Appeal held that Bauer had failed to give proper notice and that the arbitrator's decision on this
2020 Engineering (Hong provisions to Link
of Appeal point was wrong. Bauer was not entitled to bring a claim in the arbitration on a different contractual basis to the one notified.
Kong) Limited v Bauer FIDIC 2017
Hong Kong Limited
[2020] HKCA 830
SBI International High Court of
Enforcement of DAB Decision. Stay of proceedings pending reference to arbitration. Plantiff argued that Defendant had waived its right to apply for a stay on the basis that
Holdings (Kenya) v Kenya at Nairobi 20.4, 20.5, 20.6,
2020 Not specified Defendant had filed an unconditional Memorandum of Appearance. This was dismissed by the court: Defendant had not filed any defence or taken any steps which would Link
Kenya National (Milimani Law 20.7 (amended)
be construed as acknowledging Plaintiff's claim. The court declined to stay the proceedings.
Highway Authority Courts)

Howard Kennedy LLP, May 2024 18

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

1. The Joint Venture

“JV Copri
Construction
Enterprises W.L.L. &
Aktor Technical
Societe Anonyme” 2.
Copri Construction
Enterprises W.L.L. 3. Road construction contracts. Claim for EOT and costs. Dispute over the establishment of a DB and whether DB decisions are final and binding. DB decisions determined to
2020 Paris, France Pink Book 2005 20 Link*
Aktor S.A. v. Albanian be final and binding. Respondent ordered to pay Claimant as determined in the DB Decisions. VAT due.
Road Authority under
the Authority of the
Ministry of Public
Works and Transport,
ICC Case No.
23988/MHM/HBH (c-
24011/MHM/HBH)

Applicant attempted to set aside an arbitral award. The contract had been terminated. The applicant alleged that the arbitrator acted beyond the scope of reference in
awarding compound interest which was not provided for as part of the contract. In relying on a non-existent formula to make the award, the arbitrator had re-written the
contract. It also contended that the arbitrator had ignored the express provisions of the contract in the calculation of interest and by so doing awarded interest that was
Ministry of
injurious to the national and economic interests of Kenya as taxpayer funds would be used to settle the award if it was not set aside. Further, the arbitrator had acted in
Environment and
excess of jurisdiction by awarding a sum for a Variation despite this Variation being rejected by the applicant, by awarding a sum on account of an unpaid certificate which
Forestry v Kiarigi
69.3, 60.13, 69.3, was not certified by the project manager and by awarding a sum for idle time and equipment that was not based on the contract nor supported by the BOQ. The applicant
Building Contractors High Court of
2020 Not specified 65.6, 69.1, 69.2, also argued that it should keep the retention money. It also argued that the claim was time barred. The court held that the compounded interest was ‘inordinately high, Link
& another [2020] Kenya at Nairobi
69.3, 69.5, 65.8(c) [did] not constitute compensation but [was] punitive and amounts to unjust enrichment to the extent that if it [was] enforced, would injure the public finances’. The award
eKLR, Miscellaneous
of such interest was set aside for violation of public policy. Regarding the Variation, the court held that it was a matter within the contract which the arbitrator considered
Civil Application E320
and came to a conclusion. This was contemplated by the parties for determination. The court also held that the uncertified amount was also within the arbitrator’s
of 2019
reference. The arbitrator held that retention money was due to the respondent as the contract was terminated prematurely due to the applicant’s default. The court held
that this was a matter within the scope of the arbitration. The court came to a similar conclusion regarding the idle time claim. The applicant was precluded from raising
limitation at this stage of the proceedings. The award was set aside only to the extent of compound interest applied to each head of claim.

Zakhem International Conditions of

Application for defence to be struck off on the grounds that it was scandalous, frivolous or vexatious (etc) and for judgment to be entered for the applicant. The dispute
Construction Ltd v Contract for
related to a contract for the construction of a replacement pipeline. The applicant contractor sought compensation for delays on the project, etc. The respondent employer
Kenya Pipeline High Court of Works of Civil
2020 argued that the matter should proceed to a full trial. The court entered summary judgment for the applicant contractor in accordance with the overriding objective of the Link
Company Ltd [2020] Kenya at Nairobi Engineering
courts which was to adjudicate disputes expeditiously and efficiently at a reasonable cost. The court noted obiter that the dispute was straightforward and was more in the
eKLR, Civil Case No. Construction,
nature of a reconciliataion of accounts in respect of a project which was completed and handed over four years ago.
E322 of 2019 1992

Intex Construction
The applicant sought an order (via application for summary judgment) to enforce two adjudicator's awards against the respondent in relation to two contracts for road
Limited v Kenya Rural
High Court of projects. The respondent argued that there was no decision to enforce because the applicant had failed to submit an original or certified copy of the adjudicator's awards
2020 Roads Authority Not specified 67.1 Link
Kenya at Nairobi and that according to the contract an appeal against an adjudicator's award should take the form of arbitration. The court found that, save for a technical objection, the
[2020] eKLR, Civil Suit
respondent had not raised any legal objection and granted the application.
80 of 2019

Okiya Omtatah Okoiti

The dispute related to the Standard Gauge Railway (SGR) in Kenya. This appeal related to (a) various disputes concerning the legality of procurement of the project, in
& 2 others v Attorney
Court of Appeal at Possibly Silver respect of which the court partially set aside the judgment of the High Court and found that the procuring entity had failed to comply with and violated certain provisions of
2020 General & 4 others Link
Nairobi Book the Constitution and of the Public Procurement and Disposal Act 2005, and (b) whether certain documentary evidence should remain expunged from the record, in respect
[2020] eKLR, Civil
of which the court upheld the decision of the High Court.
Appeal 13 of 2015

Howard Kennedy LLP, May 2024 19

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Omega
Construcciones
Industriales, S.A DE
C.V., Sinohydro Costa Not FIDIC - similar to clause 5.1 (see paragraph 522 of the award; regarding the contractor carrying out its own risk analysis prior to submitting a proposal). Contract for the
Rica, S.A., Desarrollo y construction of a hydroelectric project. The claims related to alleged differences in the conditions offered by Respondent when the project was tendered, including
Construcciones restrictions on trucks entering the Site, the lack of skill and disposition of local workers, restrictions on other areas of the Site, implementation of shutdowns and blocades
Mexico City, Not FIDIC (but
2020 Urbanas, S.A. DE C.V. that impacted access to the Site, and as a result of these various acts and omissions of the Respondent, it was impossible for Claimant to complete the project. Respondent Link*
Mexico similar clause)
and Caabsa denied the claims and challenged the scope of the arbitration agreement, including that the arbitral tribunal lacked jurisdiction to resolve technical and administrative
Infraestructura, S.A. disputes including those relating to force majeure events, since the parties agreed that these should be resolved not through arbitration but by expert proceedings. The
DE C.V. v. Comisión tribunal found that it had jurisdiction and, on the merits, that Respondent had breached various obligations regarding access to the Site, cooperation, etc.
Federal de
Electricidad, LCIA
Case No. 163471
Bridge collapsed during construction causing injury to persons. The Engineers' Board of Kenya commissioned an enquiry, found that the appellants were guilty of
professional misconduct having breached certain codes of conduct, and sanctioned the appellants for this breach including removing their names from the relevant
professional register. The appellants sought in the High Court to quash the respondent's decisions on various grounds including that: their role on the project was limited,
Godfrey Ajoung the main construction contract - which was a FIDIC design and build contract - was between other parties and the appellants had no role in that contract, the accident arose
Okumu & another v because of errors in the sequence of concreting (i.e., errors during construction) by the contractor to the FIDIC contract, plus other procedural grounds. Respondent
Engineers Board of Court of Appeal at maintained that the primary cause of the collapse was wrong sequencing of concreting as a result of failure by the appellants to provide adequate design information to the
2020 Not specified Link
Kenya [2020] eKLR, Nairobi contractor. The High Court upheld the respondent's decision on the basis that judicial review is concerned with the decision making process, not the decision itself or the
Civil Appeal No. 89 of merits of the decision and that, as long as the process followed by the decision maker is proper, and the decision is within the law, a court will not interfere, and
2019 administrative decisions can only be challenged for irregularity, irrationality and procedural impropriety. The Court of Appeal found that the respondent failed the
rationality and proportionality tests and held that the judge ought to have quashed the respondent's desicion, which was made on the basis that the design was flawed and
on the fact that the appellants had failed to supervise the works. The appeal partially succeeded (the removal of the appellants' names from the register for other
procedural grounds was upheld).
General
Conditions of
Contracts for This matter concerned a petition for review, seeking the reversal of a decision issued by the Court of Appeal following its confirmation of an arbitral award. The Supreme
Works of Civil Court confirmed that, unless the claiming party can show any of the exceptional circumstances, the court is duty-bound to uphold the integrity of the arbitration process
Engineering and ensure that the parties do not undermine the process they voluntarily engaged themselves in.
Constructions Following an instruction to widen the carriageway of the road, and several variation orders, ITD submitted a claim for overrun earthwork quantities. A joint survey was
Department of Public
[FIDIC] Fourth conducted by the parties to evaluate and resolve the claims. KEI advised ITD that its claim for additional compensation on the overrun earthwork quantities could not be
Works and Highways
Edition 1987, allowed. The matter was referred to the Construction Industry Arbitration Commission (“CIAC”). DPWH submitted counterclaims against ITD.
(DPWH) vs Italian-
and 1988 with In its final award, CIAC found that DPWH was liable for ITD’s claim for overrun earthwork quantities (with interest). According to CIAC, ITD’s claims were not barred by
Thai Development
Supreme Court Editorial waiver, abandonment or estoppel despite its failure to comply with the notice requirement under FIDIC and COPA, on the basis that its non-compliance with the notice
Public Company Ltd
2020 Manila, Republic of Amendments requirement is mooted by the express provision under FIDIC which allows claims to be decided under arbitration, even though a party failed to comply with timely notice Link
(ITD) and Katahira &
the Phillipines and 1992 with and submission of contemporary records requirements. Further, DPWH was estopped from raising this issue when it decided to conduct a joint survey to evaluate and
Engineers
further resolve the claims. The CIAC also held that there can be no waiver because ITD officially notified KPWH and KEI of its intention to be paid for its claims. Each party was
International. (KEI)
Amendments ordered to shoulder their respective legal expenses. The counterclaims were denied.
G.R. No. 235853 (13
(FIDIC DPWH filed a petition for review of the final award, however, the Court of Appeal (“CA”) dismissed the petition and ruled that the CIAC did not err in its ruling. DPWH
July 2020)
Conditions); and applied to the Supreme Court (“SC”) for an exception (to the rule that only pure questions of law may be raised) and reversal of the CA decision.
Part II – The SC held that the findings of the CIAC were final and conclusive and are not reviewable by court save under narrow exceptions. The SC found that none of the
Conditions of exceptional circumstances existed in this case. DPWH’s claim for exception was denied and the CIAC’s arbitral award ruled as final and unappealable and only questionable
Particular before court on pure questions of law.
Application
(COPA).

Howard Kennedy LLP, May 2024 20

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Decision setting aside an arbitral award under Vietnamese Laws.

The case concerns construction of a hydropower plant project. The contractor (claimant) terminated the contract on the basis of delays and escalated costs, and following
disagreement with the employer (respondent) on sums owning to the claimant, the latter referred the dispute to arbitration and was granted an award in its favour.
The respondent filed a request to this court to set aside the award, on three grounds: (1) the tribunal's decision to change the hearing venue, thus outside of the parties'
Decision 11/2019/QD-
agreement; (2) the tribunal's failure to take into consideration the respondent's factual witness evidence pursuant to the IBA Rules, in violation of the arbitral procedures;
PQTT, HydroChina
and (3) tribunal was said to have failed to make its own assessment of the quantum of damages, instead it was alleged that the tribunal relied solely on the expert evidence
HuaDong Engineering
produced by the claimants.
Corporation and People's Court FIDIC
Regarding the first ground, the court noted that the parties agreed Hanoi as the place of arbitration, as recorded in the tribunal's procedural order. However, during the
2019 China Railway 18th Hanoi City, Yellow/Silver 20.6 Link
course of the proceedings, the tribunal granted certain interim relief against the respondent. The respondent instituted proceedings in the Hanoi Court against the tribunal
Bureau Group v Vinh Vietnam Book 1999
in their personal capacity, which was followed by (and the reason for) the tribunal's decision to use its discretion to change the location of the hearing to Osaka in
Son – Song Hinh
Singapore. The court held that a change departing from the parties' agreement was sufficient to warrant setting aside the award.
Hydropower JSC (14
The second ground. Whilst the respondent filed factual witness evidence, those witnesses were not present at the hearing, and the respondent decided not to participate
Novembr 2019)
in the hearing. The tribunal viewed this as a general lack of cooperation in the arbitration and decided to not attach any weight to the factual witness statements. The court
held that the tribunal had violated Article 56.2 of the Law on Commercial Arbitration (LCA), to settle the dispute on available documents and evidence, and by not taking
into account the respondent's evidence and its application of the IBA Rules, the tribunal adversely affected the respondent's interest.
The third ground. The court held that the tribunal failed to embark on its own exercise of properly assessing the quantum, in contravention of Article 46.3 of the LCA.

Decision concerning an application to set aside an arbitral award.

The requesting party contended that the award violated local laws, and that the VIAC (Vietnam International Arbitration Council) lacked jurisdiction on the basis that the
parties failed to comply with the requirement to pursue amicable settlement pursuant to Sub-Clause 20. 5, instead the dispute was referred directly for arbitration (under
Sub-Clause 20.6). They further asserted that the tribunal's decision relating to the cost of scaffolding fell outside the scope of contract, i.e., formed a completely separate
PCVN Mechanical and
agreement, and therefore outside of the tribunal's jurisdiction. It was further contended that the tribunal's decision regarding payment of a retained warranty (pursuant to
Construction
Sub-Clauses 1.1.3.10 and 10.1) was wrong on the basis that the project was not eligible for actual completion since certain legally required tests had not been completed,
Company v HQ
and the decision was therefore not in accordance with the law.
Investment and People's Court of 1.1.3.10, 10.1,
The related party opposed the application on the basis that parties deleted Sub-Clause 20.2 and 20.3 relating to DRB proceedings, and asserted that the requirement for
2019 Development Hanoi City, 1999 Red Book 20.2, 20.3, 20.4, Link
amicable settlement pursuant to Sub-Clause 20.5 was only applicable following DRB proceedings and a decision under Sub-Clause 20.4. Accordingly, Sub-Clause 20.5 was
Company Limited, Vietnam 20.5, 20.6, 20.8
not applicable, and the parties had the right to refer disputes directly for arbitration. In relation to the allegations of matters outside of the tribunal's jurisdiction and the
Decision number
warranty, the related party asserted that for the present application before court, the court could only consider the procedural aspect and not the content of the dispute as
09/2019/QD-PQTT
the latter had already been resolved by the tribunal.
(24 September 2019)
The court agreed. The court confirmed that pursuant to Sub-Clauses 20.8, the amicable settlement requirement in accordance with Sub-Clause 20.5 was only mandatory in
cases where Sub-Clauses 20.2 – 20.4 were applicable. On procedural grounds, the court found that the requesting party's application failed. The issues regarding the
warranty were said to fall within the content of the dispute and not within the scope when considering an application to set aside an arbitral award as this court would not
entertain a re-trial as the dispute had already been resolved. The court concluded that there was no legal basis for setting aside the arbitral award.

M/S National
Price adjustment and toll tax disputes. 1) Whether excise duty exemption on the cost of materials was to be included while calculating and determining the price
Highways Authority v
New Delhi High FIDIC 4th Ed. adjustment for bitumen and fuel. Held: the excise duty should not be included in the valuation. 2) Whether contractor was entitled to reimbursement of toll tax as a result
2019 M/S Sunway 11.1 Link
Court 1987 of failure by employer to hand over a bridge on which the contractor was working. Held: The contractor should have full access to the bridge. There was no stipulation in
Construction Sdn Bhd,
the contract that the toll had to be paid by the contractor.
22 January 2019

Howard Kennedy LLP, May 2024 21

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
The Municipal
Corporation of
Greater Mumbai v
Payment disputes. Lump sum v remeasurable contract. Whether additional quantities caused by contractor's construction methodology and design. Extra quantities not a
Angerlehner FIDIC 4th Ed. 51.1, 55.1, 56.1,
2019 Bombay High Court result of a variation but actual quantities over and above those stated in the BOQ. Additional quantities were not caused by the contractor's construction methodology or Link
Structural and Civil 1987 60.1, 60.2, 51.2
design. Arbitration award upheld.
Engineering
Company, 27
February 2019
Appeal against lower court decisions concerning an arbitral award issued in respect of a dispute about a road rehabilitation project. The project was commenced but
Republic of the
suspended because of right of way problems. The suspension lasted 32 months meaning that the project completed late. The contractor made monetary claims under the
Philippines,
contract regarding this suspension. The contractor argued that it was constrained to accept payment from the employer of a lower amount than claimed because of
represented by the
financial distress it was suffering which was aggravated by the length of time that had elapsed since the claim was made and the employer made its offer. The contractor
Department of Public
Supreme Court commenced arbitral proceedings for the original claimed amount. The arbitral tribunal found the that contractor had established that it was in financial distress at the time
2019 Works and Highways Not specified 42.2, 54.1 Link
Philippines, Baguio the employer offered to pay the reduced amount and that it was constrained to accept the offer (the 'letter-waiver') to facilitate payment. The arbitral tribunal declared the
(DPWH) v. Roguza
'letter-waiver' to be 'inefficacious' and awarded the contractor some of the additional sums claimed. There followed numerous conflicting court decisions regarding the
Development
arbitral award. The Supreme Court noted that the existence of conflicting decisions appeared to result from failure by the contractor's counsel to disclose the identity of
Corporation, GR No.
the parties and issues in two of the court cases. The Supreme Court found that elements of res judicata existed and granted the appeal against certain of the lower court
199705, 3 April 2019
decisions.

The contract in this case was not FIDIC but NEC 3. However, for the purposes of this table, the case is considered instructive in relation to time limits for adjudicator
Group Five decisions. Following a dispute between the parties an adjudicator was appointed. The adjudicator’s determination was due after an exchange of documents between the
Construction (Pty) Ltd South Gauteng parties and within four weeks of the end of the period of received information (which was 29 June 2018). The adjudicator requested an extension of time for his decision
v Transnet SOC High Court, (which was due 27 July 2018). This was refused by Transnet but agreed by Group Five. Even though both parties had not consented, the adjudicator continued with the
2019 NEC W1.3(8), W1.4(3) Link
Limited (45879/2018) Johannesburg, adjudication and finally published his determination on 18 September 2018. Group Five applied to the High Court for an order to give effect to the adjudicator’s
[2019] ZAGPJHC 328 South Africa determination. Transnet resisted. The court found that the contract failed to stipulate what would happen if the parties failed to agree to an extension and considered that
(28 June 2019) the requirement for parties’ consent was to give them some control over the process. The court held that the adjudicator was not competent to proceed beyond the initial
deadline in the absence of both parties’ consent and, accordingly, the determination was late, in breach of the terms of the contract, and was not binding or enforceable.

Gammon India
Limited v National Contract for road widening project. Referral to DRB for recommendations and then to arbitration. Challenges to arbitral award. The court rejected the challenges. The court
2019 High Court of Delhi Not specified Link
Highways Authority of urged the NHAI not to challenge awards unless there was a reasonable chance of success, noting the public funds involved.
India, 2 July 2019
Indeen Bio Power
EPC contract relating to biomass plant. Appeal against arbitral award. The arbitral tribunal found that it did not have jurisdiction to hear the dispute. The court did not agree
2019 Limited v M/S. Efs High Court of Delhi Not specified Link
with the arbitral tribunal's conclusion that it had no juridiction and allowed the appeal.
Facilities, 24 July 2019

Concerned the right to invoke arbitration where the contract had been subsequently amended. Held: it was clear from the nature of the amendment that all pending claims
Wapcos Ltd v Salma
Supreme Court of 20.1, 20.6, 1.14, of the contractor, as of the date of amendment, were intended to be 'buried' and the arbitration clause could not be invoked except for claims arising out of force majeure
2019 Dam Joint Venture, 14 Not specified Link
India 4.3 events. The Contractor was a consortium. One member could not invoke arbitration on behalf of the consortium after its authority to do so had been specifically revoked by
November 2019
another member.

DAB terms in the Contract were unaltered. DAB ordered Zillion to pay Salz-Gossow an amount of money. Zillion submitted an NOD after the DAB's decision and did not pay
as ordered.
Salz-Gossow brought a court application seeking implementation of the DAB's decision. Zillion opposed this application on the basis that the NOD suspended the operation
of DAB's decision. Zillion argued that the Court should not exercise its discretion to order Specific Performance. Zillion brought a counter application to the Court to set
Zillion Investment
aside the DAB's decision as the main relief.
Holding (Pty) Ltd v
CFI Held: The Court granted Salz-Gossow's application finding that, pending the arbitration, the ruling of the DAB needed to be complied with and that there was no reason
Salz-Gossow (Pty) Ltd FIDIC Red 1999,
Supreme Court of why specific performance should not be granted as contemplated in the agreement. The Court made an Order for the amount to be paid to the Salz-Gossow and dismissed
2019 (SA 17/2017) [2019] 1st Ed. 1999 20.4 Link
Namibia the counter application of Zillion. Zillion appealed the decision of the High Court. The Appeal was for the invalidity of the DAB decision on the following grounds: 1) Zillion
NASC 10 (17 April (amended)
could not afford the amount determined and, as the contentions were more legal than factual, the Court should assume jurisdiction; and 2) as to the awarded interest
2019); (Case No. SA
amount in the DAB's decision - applying the 'Reasonable Man' test, the decision was 'unreasonable, improper, irregular and wrong, leading to 'patently inequitable' result
17/2017)
and 'unjust evaluation' and should be set aside.
SC Held: Zillion's financial position was such that it had never been unable to pay the amount determined by the DAB. For the purpose of the application to stay, Zillion
attempted to make out a case that raising finance to pay the amount determined by the DAB would prejudice them in the project, whereas the real prejudice would be that
they would not be able to recoup the amount from Salz-Gossow, should they be successful in the arbitration proceedings. The SC upheld the DAB decision.

Howard Kennedy LLP, May 2024 22

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Joint Venture
Between Aveng
A contract for construction of river bridge was awarded by SANRAL to ASJV. ASJV provided SANRAL with Performance Guarantees (PG). During the course of the project the
(Africa) Pty Ltd and
parties agreed to suspend the Works due to violent protests enacted by a local radical group. Eventually ASJV delivered a notice of termination for having been prevented
Strabag International
from executing the works for a continuous period of 84 days by reason of force majeure. ASJV also requested that SANRAL undertake not to make a demand on the PG
GmbH v South African
FIDIC Red 1999, without giving 14 days notice as they were only allowed to make a demand under the provisions of Clause 4.2 of the Contract. SANRAL disputed ASJV's right to terminate
2019 National Roads South Africa 4.2; 17.3, 17.4 Link
1st Ed. 1999 the contract and did not agree that the protests constituted force majeure. It also argued that it was the law that the PG must be paid and the parties may consider
Agency Soc Ltd and
entitlement at a later stage.
Another (8331/19)
Held : The Court held on the evidence before it that the protests did not constitute force majeure. Accordingly, SANRAL was justified in accepting ASJV's actions as
[2019] ZAGPPHC 97;
repudiatory and presenting the PG for payment.
[2019] 3 All SA 186
(GP) (22 March 2019)

The Petitioner (Entes) sought an order from the Court to enforce an Arbitral Award which included an award of costs plus post-judgment interest at statutory rate by the
Respondent (Ministry), pursuant to the NY Convention.
Entes Industrial Plants
The Arbitration was filed under the UNCITRAL Rules over the cost of delays, design changes, additional work and late instructions by the Respondent and their inability “to
Construction and
make important decisions” because of the country’s April Revolution. The Ministry counterclaimed its legal fees. The AT rendered its Award, unanimously finding that Entes
Erection Contracting US District Court
Unknown FIDIC was owed compensation for the extended timeframe of the Works project plus interest.
2019 Co. Inc v The Ministry for District of 60.8; 67.3; Link
type Contract Held : The Court granted the Petition on the basis that:
of Transport and Columbia
1) all statutory conditions for confirmation and enforcement were satisfied; and
Communications of
2) none of the limited grounds for refusal to confirm exist.
the Kyrgyz Republic
'Confirmation proceedings under the NY Convention are summary in nature, and the court must grant the confirmation unless it finds that the arbitration suffers from one
of the defects listed in the Convention.'
Pride Enterprises
Limited v Kenya
National Highways High Court of Application for recognition and enforcement of arbitral awards in respect of FIDIC-based contract for the reinstatement of a road in Kenya. Court ordered the filing of the
2019 Not specified 67.3 Link
Authority, Misc. Kenya at Nairobi original arbitration agreement and awards before considering the application.
Application No. 124 of
2019
Associated
Construction
Company (K) Limited
v Ministry of
High Court of
Transport, The Plaintiff sought an order (a) restraining the Defendant from terminating the contract pending the referral of the dispute to arbitration and (b) that the dispute be
Kenya at Nairobi FIDIC 4th Ed. 67.3, 60.2, 60.4,
2019 Infrastructure referred to arbitration pursuant to clause 67 of the contract. The court held that the conditions for granting an interim measure of protection were not fulfilled. The Link
(Commercial and 1987 60.5
Housing Urban Plaintiff's application was dismissed.
Tax Division)
Development Public
Works & another,
Civil suit no. 189 of
2019

Rail rehabilitation contract. Claimant contractor, Respondent employer. Claimant argued that Respondent was contractually obliged to comply forthwith with a DAB
decision and asked the arbitral tribunal to order Respondent to make payments as directed by the DAB (primary claim). In the alternative, only if its primary claim failed,
Claimant asked the arbitral tribunal to open up, review and confirm the DAB decision and order Respondent to pay VAT, interest and penalties as owed under the contract
ICC Case No. Bucharest, FIDIC 4th 1987 and the applicable law (secondary claim). Respondent argued that the claim was not arbitrable and was inadmissible, that one of the DAB decisions violated Romanian law
2019 67 Link*
23652/MHM Romania (amended) and public policy and that the arbitral tribunal should open up, review and revise the DAB decision. The arbitral tribunal granted Claimant's primary claim so the arbitration
did not need to proceed to a second phase. The arbitral tribunal considers (para 324) other cases regarding the enforcement of DAB decision. The arbitral tribunal states
(para 326) that it has the power and is in fact obliged to order Respondent to abide by the DAB decision and that this result 'reached with respect to a FIDIC-based contract
under Romanian law - is also consistent with the FIDIC Guidance Memorandum of 1 April 2013'.
The applicant was an unsuccessful tenderer whose tender was disqualified for non-responsiveness. The project was to be a turnkey project based on the FIDIC 1999 Silver
WBHO v Nelson Book. The applicant had included a clause in the Contract Data of its tender permitting escalation where completion was delayed beyond May 2020 through no fault of its
Mandela University own and price adjustments where the contract was not awarded within 2 months of the tender submission. The respondent submitted that the applicant was seeking to
High Court of
2019 and Another Silver Book 1999 13.8 introduce price adjustments specifically not contemplated by the FIDIC Silver Book and was attempting to transfer risks that the first respondent had specifically transferred Link
South Africa
(2121/19) [2019] to the successful bidder. The court held that the applicant’s tender did not adhere to the conditions of tender or to the tender terms. The proposal amounted to an open-
ZAECPEHC 68 ended transfer of risk to the first respondent. The first respondent acted lawfully, reasonably and procedurally fairly in its assessment of the responsiveness of all the
tenders received.

Howard Kennedy LLP, May 2024 23

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Ganuni Construction
Co Ltd v County
Government of High Court of FIDIC 4th Ed. Application for a stay of court proceedings in favour of the FIDIC dispute resolution mechanisms. The court declined to stay the proceedings as the defendant had already
2019 67.1, 67.2, 67.3 Link
Garissa & another Kenya at Garissa 1987 participated in the court proceedings.
[2019] eKLR, Civil Suit
No. 2 of 2017

The plaintiff sought orders to restrain the defendant from among other things terminating the plaintiff's sub-consultancy agreement and from continuing with work using
AIA Architects Ltd the plaintiff's designs, however altered or manipulated, and from engaging another sub-consultant, plus orders for payment of sums of money the plaintiff considered due.
FIDIC
Formerly Advents In The project related to infrastructure at Lamu Port Manda Bay. The defendants sought an order that the court lacked jurisdiction and the matter should be referred to
Client/Consultan
House Limited v arbitration. The court found that there was an arbitration agreement between the parties under the Arbitration Act 1995 Laws of Kenya. The court found that as the
High Court of t Model Services
2019 Yooshin Engineering 9(1) defendant had sought to terminate the agreement incorporating the arbitration clause, there was a dispute for reference. The question was whether the defendant had Link
Kenya at Mombasa Agreement 3rd
Corporation [2019] acted within the time frame fixed by the law, i.e., whether the defendant's notice of preliminary objection, the only step taken by the defendant to enforce its right to the
Ed (1998 White
eKLR, Civil Case No. arbitration clause, was in time, by reference to section 6(1) of the Arbitration Act. The court found: that the defendant made an appearance before filing the preliminary
Book).
36 of 2019 objection and so the statutory time for insisting on the arbitration clause had passed and the defendant was deemed to have forfeited the right to insist on reference to
arbitration; and that the plaintiff had established a prima facie case. The court granted the plaintiff the orders it sought.

Dubai Court of Appeal Dubai Court of FIDIC 4th Ed.

2019 67.1 Failure to comply with pre-arbitral conditions. Annulment of tribunal's affirmative award on jurisdiction. Link*
Case No. 32/2019 Appeal 1987
Muri Mwaniki &
Wamiti Advocates v
Draft & Develop High Court of Application to set aside certificate of taxation of costs in case which involved voluminous documents and highly technical FIDIC construction contract. Application
2019 Not specified Link
Engineers Limited, Kenya at Nairobi dismissed.
Misc. Application No.
E252 of 2019
Bucharest Court of
Bucharest Court of Appeal, uphoding This decision of the Bucharest court of appeal is not publicly available. It is, however, referred to by the tribunal in the award in ICC case no. 23652/MHM (which appears
No link
2018 Appeal decision no. the challenged elsewhere in this table). See para 324(f) of the award in ICC case no. 23652/MHM in which the tribunal refers to this decision in the context of tribunals and courts within
available
162 of 3 July 2018 CICA Case 39/2016 and outside Romania which have acknowleged that a merely binding DAB decision may be 'enforced' in arbitration in a partial final award.
award
National Highways
Authority of India v High Court of Delhi FIDIC 4th edition 14, 42.1, 42.2, 44,
2018 Challenge to arbitral award. Challenge dismissed. Link
Patel-Knr (JV), 14 May at New Delhi 1987 52.2, 60, 67.1,
2018
Ongata Works Limited High Court of First Edition, This case concerned an application for injunction preventing the Respondent from termination of the contract pending resolution of disputes in accordance with clause 20
2018 20 Link
v Tatu City Limited Kenya, Nairobi 1999 of the contract. The court considered, inter alia, the importance of disclosure of facts by the applicant and the powers of the court to order interim measures.

Republic v Director
General of Kenya
National Highways The respondent in this case commenced proceedings in court for Judicial Review. The applicant applied to stay the proceedings pending its determination through
High Court of
2018 Authority (DG) & 3 67 arbitration, and requested that the dispute between the parties be referred to arbitration. The Applicant claimed that the Dispute Resolution procedure in the contract was Link
Kenya, Mombasa
Others Ex-parte exhausted and the adjudication award must be enforced by way of a summary judgement.
Dhanjal Brothers
Limited

Steenkampskraal A Fixed Price Contract varied to three times its Original Contract Sum through variations. The Claimant claimed rescission or alternatively cancellation of the two Contracts
Holding Ltd v (1) Eres High Court of entered into with the first Respondent as it was alleged that both were awarded and appointed as a result of bribery. It was found that two of the Respondents colluded to
Engineering Projects South Africa, fraudulently inflate supplier's invoices and as such false and overpriced invoices were paid to them. The First Respondent submitted a counterclaim for 2 unpaid invoices.
2018 (Pty) Ltd; (2) Vincent Pretoria, Not specified 15.2 (f) The Contract contained DAB and Arbitration clauses, however, the Parties agreed to take the matter to the Court. Link
Raphael Mora; (3) Case No. Held : The Court was convinced that the Claimant had proved commercial bribery and that both contracts were lawfully rescinded. On the restitution point, the Court
Jan Albert Dreyer 10906/2013 declined to order repayment of the total amount payed by the Claimant with interest and declined to order the amount claimed in the alternative as well, on the basis of
[2018] Claimant's admission that work for the value of "millions of Rands was done".

Howard Kennedy LLP, May 2024 24

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
The Main Contractor (Respondent) provided 3 Advanced Payments (AP) to the Subcontractor (Claimant). Two of them were secured by a Performance Guarantee (PG) and
recovered through the IPC mechanism. The 3rd AP was unsecured. The Main Contractor issued a demand to the bank. The Subcontractor brought an urgent application
Teichmann Structures
seeking an order stopping the bank from making the payment. As the PG was unconditional, the only ground on which the bank could deny the call was fraud. The
(Pty) Ltd v (1) Hollard High Court of
Subcontractor therefore claimed that the bond was called fraudulently. It claimed that the Main Contractor had recovered the entire amount of the APs secured by the PG.
Insurance Company South Africa, FIDIC Red 1999,
2018 4.2; 14.2 It conceded that the outstanding amount was not secured and should be treated as a loan as it was a transaction entirely separate from the building contract, to be Link
Ltd (2) ELB Johannesburg Case 4th Ed.
recouped through either the certification process or through the Final Account.
Engineering Services No.. 24233/18
Held : The Court found in favour of the Main Contractor because: 1) The IPC made no distinction between secured and unsecured PGs in the section "Repayment of
(Pty) Ltd [2018]
Advance Payments" thus indicating that the Parties treated all Advance Payments as made under the Contract and not outside and 2) The Claimant did not put forward any
evidence to prove an agreement that the outstanding amount was to be treated as an unsecured loan.

Republic v Engineers The Applicant (Consulting Engineer) entered into a design only contract with a Main Contractor for the construction of a bridge. The bridge later collapsed. The Applicant
Board of Kenya ex claimed that under the contract he did not have any supervisory responsibilities. The Main Contractor accepted the fault and began the rectification work. The Engineers
High Court of
2018 parte Godfrey Ajoung Gold Book 6.8; 6.10 Board of Kenya commissioned an inquiry into the collapse. The inquiry claimed that the Applicant failed to provide adequate design and sufficient information as stipulated Link
Kenya, Nairobi
Okumu [107 of 2018] under the Contract under which the Engineer, who designs the drawings, has a duty to ensure that he supervises his drawings until completion of the project, hence, the ex
eKLR parte applicant was negligent in failing to supervise his drawings and thus he breached clauses 6.8 and 6.10 of FIDIC.

The bid for qualification of the Applicant Contractor (Seo & Sons) was rejected for failure to comply with various mandatory requirements. The Applicant argued that the
basis on which its bid had been considered non-complaint (did not meet the required threshold in annual turnover for the last three years) was baseless and unjustified,
High Court of and was based on unknown calculations. Further, it claimed that its disqualification on the grounds that one of its corporate directors did not provide its national identity
Kenya, Nairobi, card was unfair and violated the law. The Applicant referred the matter to the Public Procurement Review and Appeals Board, which ordered the rejection be set aside and
Republic v Kenya
Constitutional and the procuring entity to re-admit the Applicant's tender for a thorough technical and financial re-evaluation. The Board also ordered that the successful tenderer be set
Airports Authority Ex
2018 Judicial Review Not specified No clause cited aside. Link
Parte Seo & Sons
Division Misc. Civil The successful tenderer filed for judicial review and in the meantime, the Applicant (Seo & Sons) was awarded the Contract and mobilized immediately. Following the
Limited [2018] eKLR
Application withdrawal of the original successful tenderer, the Kenya Airports Authority (KAA) terminated the Contract based on alleged misrepresentation in respect of the Applicant's
No.338/206 (Seo & Sons) qualification documents. The Applicant claimed that the termination was premature and ultra vires .
Held : The Applicant’s case was merited as KAA did not arrive at a decision after hearing the Applicant's position on an allegation, which had a serious nature itself. The
Court issued an Order of Certiorari, quashing the termination of the Contract.

The Employer and Applicant in this case (KNHA) contracted the Respondent (China Wu Yi Limited). The Respondent (China Wu Yi Limited) subcontracted with Machira
Limited (the Claimant in this case).
Upon completion of the works, China Wu Yi Limited issued the statement of final account for evaluation to the Engineer, who verified and certified the same. The
certificate was then forwarded to the Applicant to settle. The Applicant claimed that during the preparation of the statement of final account the Contractor excluded the
work done by subcontractor Machira.
Machira Limited v Machira then issued court proceedings against China Wu Yi for recovery of the unpaid sums.
China Wu Yi Limited & China Wu Yi was granted leave to issue a Third Party Notice against KNHA.
High Court of FIDIC 4th Ed. 60.14 (PCC)
2018 Another [2018] eKLR KNHA argued that it only became aware of the dispute upon being served with the pleadings and argued further that the Machira suit against China Wu Yi was premature Link
Kenya, Nairobi 1987 67
Civil Suit No. 213 of for failure to exhaust all available dispute resolution mechanisms in the contract. KNHA asserted that clause 67 (Settlement of Disputes) of the contract executed between
2016 China Wu Yi and KNHA provided an elaborate dispute resolution mechanism whereby disputes between China Wu Yi and KNHA were to be referred to the Engineer in the
first instance.
Furthermore, KNHA contended that China Wu Yi failed to adhere to the mandatory statutory provisions to serve KNHA with one month’s notice outlining its claim. Finally,
KNHA submitted that China Wu Yi's claim was statute barred since an action against KNHA had to be instituted within twelve months after the default complained of.
KNHA therefore applied to stay the proceedings, subject to arbitration.
Held : China Wu Yi's claim was not statute barred. KNHA could not use a Preliminary objection to stay the proceedings and the Court declined to stay the proceedings.

Howard Kennedy LLP, May 2024 25

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Claimant MCSJV (Main Contractor) was granted leave to appeal the Arbitral Tribunal's (AT) Award. The point of appeal was related to the validity of a contractual
notice.
MCSJV subcontracted with Bauer. During the course of the work, unforeseeable ground conditions were established and Bauer had to do additional excavation. Bauer,
having experienced difficulties with the ground conditions, proceeded with the extra work required without securing an instruction first. Later, Bauer gave notice of its loss
and expense entitlement, referring specifically to the variation, being the additional excavation. In its notice, It did not refer to an entitlement arising under the ground
Maeda Corporation
conditions provision. Disputes arose and the matter was referred to arbitration. Bauer submitted its claim on two alternative bases: both as a variation and as a ground
and China State
conditions claim.
Construction Similar Notice
Hong Kong High AT observed that the circumstances gave rise to a valid ground conditions claim but there was no notice issued to the Engineer, describing the ground conditions and
2018 Engineering (Hong Provisions to 4.12.1 Link
Court reasons why they should be considered unforeseeable. Bauer had not given notice under clause 21 of his contract by reference to the event (similar to the requirements of
Kong) Ltd v Bauer FIDIC 2017
Clause 4.12.1 of FIDIC Red 2017 [Contractor's Notice] and increase in cost of the execution of the works. Considering the facts, AT said that it had no entitlement to be paid
Hong Kong Ltd [2019]
as a variation because no instruction had been issued, however decided that the notice Bauer had given was equally valid as a notice based on unforeseen ground
HKCFI 916
conditions and that fact that Bauer had made its claim on the basis of a Variation did not preclude it from making a claim on a new legal basis. The costs awarded by the AT
included the standby costs of plant and equipment
MCSJV appealed the AT's second interim award on points of law and claimed that the AT had included sums in the evaluation that had not actually been incurred by Bauer.
Held : The AT's conclusion failed to give effect to the express wording of Clause 21 (similar to clause 4.12.1 FIDIC 2017) and that the AT did not misdirect itself in regards to
awarded costs as it had received and considered evidence before making its valuation of a fair and reasonable price.

This case is an application by the Claimant (Sinolanka - a Sri Lankan incorporated company) under the IAA and the UNCITRAL Model Law for a ruling on the jurisdiction of an
AT or, alternatively, an order that the Award rendered by the AT be set aside on the basis that it lacked jurisdiction to hear and determine the dispute between the parties.
The contract was based on FIDIC with amended Clause 20.6 in the PCC. There were some discussions and suggestions between the parties about the Rules and Seat of
Sinolanka Hotels & Arbitration, which were not reflected in the signed contract.
Spa (Private) Limited The contract was terminated by Sinolanka on the ground that Interna failed to furnish a performance guarantee as required under the contract. By this time, Interna had
2018 High Courts FIDIC 1999 20.6 Link
v Interna Contract completed a portion of the contracted works and had incurred significant expenditure in relation to such works. Interna referred the dispute to ICC arbitration.
SpA[2018] SGHC 157 Sinolanka raised objections to the jurisdiction of the tribunal arguing that the parties had not agreed to ICC arbitration and that an alternative Sri Lankan arbitration clause
was applicable as Interna had made its offer to contract on the basis of that clause and it had been accepted when the parties signed the Contract.
The AT ruled against Sinolanka on both jurisdiction and the merits, and awarded Interna damages plus interest, legal costs and costs of the arbitration.
Held: The parties had indeed agreed to the ICC arbitration clause and it followed that the relief of setting aside sought should be denied.

Garnishee sought the dismissal of the Garnishee Proceedings. In the earlier application for Judgment on Admission (HCC 164 of 2013) the court noted that the one Interim
Certificate was not signed by the Resident Engineer and held that the Resident Engineer was required to approve the Certificate that the Plaintiff relied upon (in accordance
Ecobank Kenya Ltd v
High Court of with Clause 60). It was therefore evident that the Certificate for payment was a pertinent and central issue of dispute between the parties, which raised a triable issue
True North
Kenya, Nairobi - preventing the court from entering Judgment on Admission. After dismissing that application, the Judge ordered the dispute to be referred to Arbitration.
2018 Construction Fourth Edition 60 Link
Civil Case No. 26 of On the basis that it was clear that the alleged indebtedness by the Garnishee was contested and yet to be proved, and that the Arbitral Proceedings were yet to be
Company Limited &
2014 concluded the court in this application held that it would be premature and futile to make an order attaching a debt which is still disputed and the subject of Arbitral
another [2018] eKLR
Proceedings. The Garnishee Proceedings were struck out with costs to the Garnishee.
Read more at: https://www.law360.com/articles/1221155?copied=1

Dunway Electrical and

Mechanical
Engineering LLC v
Tanmiyat Global Real
Dubai Appelate The court upheld the Contract which provided for the referal of a dispute to a DAB as a condition precedent to arbitration. See First Instance Case No. 2657 of 2017 above.
2018 Estate Development FIDIC 1999 20 Link
Court The originals of these two cases are in Arabic.
LLC at Dubai
Appelate Court in
Appeal No. 795 of
2018

Howard Kennedy LLP, May 2024 26

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
Zenith Steel
Fabricators Limited v Appeal concerned three issues: (1) the true meaning of a nominated Sub-Contractor in the context of the building construction industry; (2) who between the Employer
Continental Builders and the main Contractor is bound to pay the sub-contractor; and (3) whether there was privity of contract between the Employer and Sub-contractor. The court held that
In the Court of
2018 Limited & another Not specified 31 the Contractor appointed the Sub-Contractor and was consequentially liable for the payments due to it, and that there was no privity of contract between the Employer Link
Appeal at Nairobi
[2018] eKLR Civil and Sub-Contractor. Appeal upheld and the judgment of the lower court was set aside and substituted. There was no formal contract but the judge made reference to FIDIC
Appeal No. 111 of contracts.
2010
Tender
Dispute concerned the interpretation of a provision giving price adjustment formulae. Base rate or current cost of the material in a particular month. The court found that
National Highway document
for bitumen the base rate should be applied and not the current rate. The court found that the arbitral tribunal did not decide the case with the correct application of the
Authority of India v Supreme Court of modelled on
2018 formula and thus that the arbitral award was contrary to the terms of the contract. Normally the court would not interfere but here arbitral tribunals had given conflicting Link
M/S Progressivemvr India generic FIDIC
awards and so the court reached its decision in the interests of justice so that the price adjustment formula would be applied the same way in other pending cases.
(JV) construction
Decisions of the lower courts and the arbitral award were set aside but with no order as to costs.
contracts
Doosan Heavy
Industries &
Construction Co., Ltd.
Contract for the supply of ship-to-shore gantry cranes to be delivered in two phases. The project was abortive due to: non-delivery of land free of obstacles, missing design
v. Damietta 16.2, 16.4, 19.7,
approvals, design changes, insufficient financing, delays caused by the Arab Spring, termination of the governmental concession. None of the cranes were ever delivered or
International Port Yellow Book 19.6, 2.1, 15.5,
2018 Paris, France installed. Doosan terminated and sought redress. Damietta and KGL argued force majeure and impossibility, Doosan delivery risk, waiver of claims pursuant to an amended Link*
Company S.A.E. and 1999 17.6, 19.1, 19.2,
supply agreement, missing delivery readiness. Held: Damietta and KGL ordered to pay Doosan, material breach of the Supply Agreement which was not excused by force
Kuwait Gulf Link Ports 20.6.
majeure, Doosan validly terminated, Damietta and KGL not entitled to return of Advance Payment.
International, ICC
Case No.
21880/ZF/AYZ
Todini Costruzioni
Generali S.p.A. v.
Ukravtodor - State 20.4, 20.5, 20.6, First partial award issued by the arbitral tribunal later considered by the Cour d'appel de Paris (see judgment of 9 March 2021 below in this table). The First Partial Award
2018 Paris, France Not specified Link*
Road Agency of 20.7, 20.8 has not yet been made public, only the appeal judgment is available.
Ukraine, ICC Case No.
22628/MHM
Marg Limited v Van
Oord Dredging and
2018 Madras High Court Not specified Dredging contract. Employer request to set aside arbitral award. Court denied the request. Link
Marine, OP No. 650 of
2013

M/S National
Highways Authority vs
High Court of Delhi Challenge to an arbitral award (which followed a DRB decision). Disputed: 1) Refund of liquidated damages; 2) Payment for ground investigation; 3) Payment of withheld
2018 M/S Itd-Sdb(Jv) on 31 Not specified 52, 53, 60 Link
at New Delhi certified amount; 4) Interest. Arbitral award upheld.
October, 2018, OMP
622/2014
Republic v Engineers
Board of Kenya Ex-
Parte Oliver Collins
High Court of First instance decision; judicial review of decision of the Engineer's Board of Kenya regarding a bridge collapse. This decision was overturned on appeal; see Court of Appeal
2018 Wanyama Khabure Not specified 6.8, 6.10 Link
Kenya at Nairobi decision in Godfrey Ajoung Okumu & Another (Civil Appeal No. 89 of 2019).
[2018] eKLR, Misc.
Civil Application No.
108 of 2018

Howard Kennedy LLP, May 2024 27

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

1) Grupo Unidos por

el Canal, S.A., (2)
Sacyr, S.A., (3)
Contracts related to the design and build of the 'Third Set of Locks' at the Panama Canal. Primary matter in dispute was whether certain advance and other payments were
Webuild, S.p.A.
due under various of these contracts including in light of numerous related arbitrations which were ongoing. Issues in respect of FIDIC included whether the tribunal had
(formerly Salini-
jurisdiction over certain claims where there had been no DAB. One of the parties asserted that the reference to a DAB was a condition precedent to arbitration and another
Impregilo S.p.A.), (4)
2018 Miami, USA Not specified 20.4, 20.6 that a contractor may refer a dispute directly to arbitration without going through a DAB referral in circumstances where the employer has acted inconsistently with the Link*
Jan De Nul, N.V. v.
dispute resolution procedure envisaged by the contract. On this issue, the tribunal found that it had jurisdiction over the relevant claims; any insistence on the DAB pre-
Autoridad del Canal
condition would be futile and unwarranted under the circumstances of the case; the relevant party had waived any entitled to seek compliance with pre-arbitral steps by
de Panamá (II), ICC
proceeding in other fora.
Case No.
20910/ASM/JPA (C-
20911/ASM)

C.E. Construction Ltd.

V Intertoll ICS Cecons High Court of Delhi FIDIC 3rd Application to appoint a sole arbitrator to adjudicate disputes between the parties. Whether an arbitration agreement in a tripartite agreement survived a later settlement
2017 Link
O&M Company Ltd & at New Delhi edition, 1987 deed. The court found that the arbitration agreement did not survive and dismissed the application.
Ors, 4 January 2017
Appeal against the finding in respect of a claim pertaining to the reimbursement of excise duty.
National High Ways The relevant Export Import (Exim) Policy underwent an amendment, which limited the benefit of exemption. Respondent claimed the benefit of Sub-Clause 70.8 on the
Authority of India v basis that it incurred additional cost because of the burden of payment of excise duty which was exempt until the subsequent legislation.
2017 Gammon Atlanta FAO Delhi High Court Not specified 70 The court noted that the price adjustment formula (Sub-Clause 70.3) accounted for labour costs, change in the wholesale price index and diesel fuel costs. It held that the Link*
(OS) 7/2017 (18 excise duty component was part of the wholesale price covered by Sub-Clause 70.3, and the benefit under Sub-Clause 70.8 could not be given as it would have amounted
January 2017) to double benefit. However, on the basis that the change was in Exim policy (and not in the excise duty) the court found that there was no double benefit to the
Respondent. Appeal was dismissed with no order as to costs.
M/S Zillion
Infraprojects Pvt v
New Delhi High Call on Advance Payment Guarantees. Whether clause 14.2 of the Main Contract was incorporated into the Subcontract. Appeal dismissed: the court declined to order an
2017 Alstom Systems India Not specified 14,2, 14.3, 14.4 Link
Court interim measure to restrain the call on the bonds.
(P) Ltd, 10 February
2017
M/S Angerlehner
Structural and Civil
Engineering Co. v
2017 Municipal Bombay High Court Not specified Interpretation of the price escalation clause. Link
Corporation of
Greater Mumbai, 31
March 2017
The Municipal
Corporation of
Greater Mumbai v
M/s Arabian Jacking High Court of Dispute regarding price escalation clause; whether the formula was open to interpretation. Two arbitral tribunals had taken diametrically opposite views. The court found
2017 Not specified 15.2, 15.5, 31.4 Link
Enterprises for Bombay that one of these tribunals failed to exercise their jurisdiction to interpret the price escalation clause and set aside that award.
Contracting and
Trading Co. (AJECT),
31 March 2017
Appeal against the Arbitral Tribunal’s decision that if the delay, and EOT, was on account of compensation events, and EOT had been granted under Clause 28, read with
Clauses 44 and 21 of the Contract, the respondent would necessarily be entitled to additional costs. Clauses 21.1 and 44.1 of the Conditions of Contract defined
compensation events as those which were not attributable to the respondent. Appeal failed and was dismissed.
2017 NHAI v. Hindustan Construction
Delhi HighCompany
Court Ltd.
Not specified 21,28,44 Link
The court further noted that the purpose of the alternative dispute redressal mechanism was to ensure that business disputes were dealt with in a speedy manner and that
appeals should not be ‘mechanically’ made to all Arbitral decisions, making the High Court a “Court of Appeal”. This was in reference to the numerous challenges brought
to court by the appellant seeking re-examining of arbitral awards.
Technology and Although the Main Contract between the Employer and the Contractor was based on FIDIC, this case involves a dispute which arose under the Sub-Contract. The Claimant
AIS Pipework Limited
Construction made an application for summary judgement claiming sums for the works carried out under the Sub-Contract. The Court considered the Respondent's argument for non-
2017 v Saxlund Not Specified Not Specified Link
Court, England and payment due to alleged defective works, the contractual mechanism for payment and approval of the invoices and rejected the application for summary judgement. The
International Limited
Wales case is to proceed to trial.

Howard Kennedy LLP, May 2024 28

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Contract between the Contractor and the Sub-Contractor was based on the Red Book 1999. There was an arbitral award rendered in 2016. The Claimant applied to the
Symbion Power LLC v Technology and
court under section 68(2)(d) of the Arbitration Act 1996 [serious irregularity] alleging that the Arbitral Tribunal had failed to deal with all issues referred to it. The court
Venco Imtiaz Construction Red, First
2017 20.6 considered whether it had to set aside the award or remit it to the Arbitral Tribunal. The issues of bias and breach of duty to act fairly and impartially were also considered Link
Construction Court, England and Edition, 1999
due to communication of one of the Arbitrators with the appointing party's counsel. The court rejected the Claimant's application. (Please note that there were further
Company Wales
proceedings for enforcement of the arbitral award, challenging the arbitral award and staying the proceedings in the UK, in this case.)

Bulgarian Supreme Red, Fourth The Supreme Court in this case refused to allow appeal from the Decision of the Appellate Court in case No. 4069/2014 (above). The court held that clause 67 is not void,
2017 Case No. 788/2016 Court of Cassation Edition, Revised 67.1; 67.2; 67.3 however, an Engineer's decision is not enforceable if one party refuses to comply with it. A party dissatisfied with the Engineer's decision may refer the dispute to an Link
(Comm Div) 1992 arbitral tribunal or the court under sub-clause 67.3. In doing so, the sub-clauses 67.1 and 67.2 do not apply.

In this case the contractor started works on a road which was not part of the contract. As a result there was a meeting in which parties agreed to stop the works and the
contractor to be paid for the works already done and to vacate the site. However, the contractor continued with the works. There was then an arbitration between the
parties in which the arbitrator issued an award ordering the employer to pay the contractor on basis of quantum meriut. The employer argued that the arbitrator exceeded
Narok County
High Court of Red, First Edition its jurisdiction as these works were not part of the contract. The contractor argued that the employer did not file an application to set aside the arbitrator's award and that
2017 Government v Prime Not Specified Link
Kenya, Narok 1999 the court does not have jurisdiction to correct errors of fact. The court agreed with the employer that the contractor unilaterally started the works and continued the works
Tech Engineering Ltd
after the meeting between the parties. The court stated that the arbitrator's jurisdiction over the dispute on the second road ended the moment it became clear to him
that the parties had mutually agreed not to continue the works (in the meeting). The court also considered the four elements that must be established for payment on the
basis of quantum meriut. The court decided that under FIDIC, the maximum contract variation was 15% of the contract sum.
County Government
of Homa Bay v Oasis
High court of Silver, First The dispute in this case was not directly relevant to FIDIC, however, the court stated that IPCs are not finally agreed payments and are subject to verification by the
2017 Group International 14 Link
Kenya, Migori Edition, 1999 Employer.
and GA Insurance
Limited
Prime Tech v
High Court of In this case the court stated that the arbitrator wrongly calculated the sum the contractor was entitled to as the sum exceeded the Contract Sum and 15% (maximum
2017 Engineering v Narok Not Specified Not Specified Link
Kenya, Narok variation allowed under the Contract). The court also stated that an error on the fact of record must be crystal clear and reasonably capable of one opinion.
County Government
Salz-Gossow (PTY) Ltd High Court of The Respondent in this case refused to comply with the DAB award stating that the Notice of Dissatisfaction suspended the enforcement of the DAB ruling. The Court held
First Edition,
2017 v Zillion Investment Namibia, Main 20.4 that the parties should promptly give effect to the decision of the DAB and that negative liquidity is not a ground for non-enforcement of the DAB ruling. The court decided Link
1999
Holdings (PTY) Ltd Division, Windhoek that it has discretion in exceptional circumstances not to order specific performance but in this case the Respondent failed to prove the special circumstance.

The question for the court was whether the tests agreed in a settlement agreement between the parties were Tests After Completion under Sub-clause 12.2 of the
SPX Flow Technology
High Court of New Yellow, First Contract. The court referred to Sub-clause 1.1.3.6 which defined the Tests at Completion as tests "which are specified in the Contract..." and held that the tests did not
2017 New Zealand Limited 1.1.3.6; 12
Zealand Edition, 1999 have to be for FIDIC to apply. The court held "When the term sheet variation was entered into, the parties incorporated into their settlement the terms of the contract
v Gas 1 Limited
including FIDIC, except to the extent they were varied by the term sheet variation." Therefore, the tests were Tests at Completion under Clause 12.

Dunway Electrical and

Mechanical
Engineering LLC v
Tanmiyat Global Real Dubai First The court upheld the contract which provided for the referal of a dispute to a DAB as a condition precedent to arbitration. See Dubai Appelate Court in Appeal No. 795 of
2017 FIDIC 1999 20 Link
Estate Development Instance Court 2018 below. The originals of these two cases are in Arabic.
LLC at First Instance
Case No. 2657 of
2017

Howard Kennedy LLP, May 2024 29

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

1.1.3.6, 1.1.4.7,
1.1.6.1, 1.8, 2.1,
National
2.5, 3.1, 3.2, 3.3,
Arbitration under
3.4, 3.5, 4.1, 4.3,
Centro de Arbitraje
4.6, 4.7, 4.9, 4.19,
Noarco S.A. -en y Conciliación de la
5.1, 5.2, 5.5, 5.6,
Liquidación por Cámara de National Arbitration Award in Spanish (translated) seated in Colombia on an amended Spanish version of the Silver Book 1999 in respect of construction works in an
Amended Silver 5.7, 5.8, 6.9, 7.1,
Adjudicación- v Comercio de international airport in Colombia. The Contractor raised claims relating to extensions of time, additional work, variations and prolongation. The Employer raised
2017 Book 1999 in 7.6, 8, 8.1, 8.3, Link
Sociedad Bogotá (Bogota counterclaims relating to unfinished and defective works, failure to supply materials and equipment, bodily injury claims, failure to renew insurance policy, supply of
Spanish 8.4, 8.7, 8.9, 10,
Aeroportuaria de la Chamber of electricity and other utilities, interest, delay damages and failure to provide documents.
10.1, 11.1, 11.2,
Costa S.A. -SACSA- Commerce
11.4, 12, 12.1, 13,
Arbitration and
13.2, 13.3, 13.8,
Conciliation
14.2, 14.4, 14.9,
Centre)
14.10, 14.11,
17.1, 17.2, 18, 20
International
Construction & Contract for civil and earthworks relating to the construction of the New Liberty Gold Mine in Liberia. Claims relating to alleged breaches of contract, delayed design and
Ad hoc arbitration, 1.9, 3.1, 4.7, 13.1,
Engineering instructions, variations, price adjustment due to inflation, financing charges, valuation post-termination, disruption and quantum meruit. Counterclaims related to advance
2017 seat in London, Red Book 1999 12.3, 13.8, 14.1, Link*
(Seychelles) v. Bea payments pre-termination and payments to third companies that completed the works. Tribunal dismissed the claims, found that there were proper and lawful grounds for
England 14.8, 15.3, 20.6
Mountain Mining termination of the contract and upheld the counterclaims.
Corporation
This was the 'Pacific Entrance Cofferdam Arbitration'. The Claimants' primary case related to alleged failures by Respondent to provide accurate and reliable geotechnical
data and an alleged withholding of crucial geotechnical information in connection with the design and construction of the main cofferdam and the feasibility of a diversion
(1) Grupo Unidos por
of the Cocoli River. According to Claimants, these failures were breaches by Respondent of certain duties and it led to Claimants entering in the contract under financial
el Canal, S.A., (2)
terms that were more advantageous to Respondent than Claimants would have agreed to had Respondent provided all infromation and performed its duties at tender
Sacyr S.A., (3) Salini- 1.4, 2.1, 3.5, 4.1,
stage. Claimants therefore sought extensions of time and damages. Alternatively, Claimants sought compensation for unforseeable physical conditions. Respondent's
Impregilo S.p.A, and ICC arbitration Yellow Book 4.10, 4.12, 5.2,
2017 position was that the allocation of risk and responsibility of physical conditions is common in construction and engineering contract and, in a design and build contract, Link*
(4) Jan de Nul N.V. v. with seat in Miami 1999 8.4, 10.1, 13,
since it is the contractor that must come up with a design suitable for the physical conditions, it is logical that the risk of such design should remain with the contractor. The
Autoridad del Canal 20.1, 20.6
contract provides for the party's agreement as to the risk of unexpected physical conditions including agreement as to the claims a contractor may claim in defined parts of
de Panama (I), ICC
the site. Also, geotechnical information was provided. The parties agreed that the contract was an administrative contract but disagreed about many aspects of
Case No. 19962/ASM
Panamanian law which were considered at length by the tribunal. There was a dissenting opinion from one of the arbitrators in respect of certain issues, including the
principle of good faith. The tribunal, deciding in the majority, rejected all of Claimants' claims.

A review of the Court of Appeal's decision concerning the court's interpretation and application of a liquidated damages clause. Company A completed the project 288 days
after the contractual completion date. Company B asserted that Company A was in breach of contract. For this reason, Company B: (1) withheld payment of the remaining
amount due to Company A; and (2) argued that Company A was liable to pay liquidated damages for the said breach, 5% of the contract value, which Company B would
deduct against its payment obligations. Both the court of first instance and Court of Appeal agreed with Company B.
Decision
15/2016/KDTM-GÿT,
The Supreme Court, in its cessation decision, had to consider the applicability of this liquidated damages clause under the law of Vietnam, and the deduction of such
Service and
People's Supreme Red/Yellow Book 2.5, 3.5, 4.23, 8.2, penalty (by Company B) from the outstanding sum owed to Company A.
2016 Engineering Joint Link
Court, Vietnam 1999 8.7, 10.1
Stock Company A v
As to the deduction, the court held that pursuant to Sub-Clause 2.5, Company B would only be entitled to deduct or reduce the amount of an IPC according to a claim and
Company B, (7
that Company B had failed to bring such a claim.
September 2016)
As to the validity of the liquidated damages clause, the court held that this was a penalty clause under the law of Vietnam (2005 Commercial Law) and that the penalty had
to be based on the value of the breached contract, instead of the entire contract value. The Court of Appeal's judgment was overturned and the case was referred back to
the People's Court of Hanoi City for retrial.

The award in this CICA case no.39/2016 is not publicly available. It is, however, referred to by the tribunal in the award in ICC case no. 23652/MHM (which appears
1999 (otherwise No link
2016 CICA Case 39/2016 elsewhere in this table). See para 324(e) of the award in ICC case no. 23652/MHM in which the tribunal refers to the award in CICA case no.39/2016 in the context of
not specified) available
tribunals and courts within and outside Romania which have acknowleged that a merely binding DAB decision may be 'enforced' in arbitration in a partial final award.

Howard Kennedy LLP, May 2024 30

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

High Court of
Roads Authority v Red Book, First The High Court of Namibia upheld an interim DAB decision on jurisdiction, scope of the dispute and some procedural matters. The court concluded that the applicant failed
2016 Namibia, Main 20.4; 20.6 Link
Kuchling Edition, 1999 to establish any contractual right which the court needed to protect by stopping the adjudication process.
Division, Windhoek

High Court of
The Court found:
Justice Queens
• The Employer’s right to delay damages under an amended Sub-clause 8.7 was not conditional upon an agreement or determination by the Engineer under Clauses 2.5
Bench Division -
J Murphy & Sons Ltd v Amended FIDIC and 3.5 [although in the unamended form Sub-clause 8.7 is expressly stated as being subject to Sub-clause 2.5].
2016 Technology and 2.5; 3.5; 8.7 Link
Beckton Energy Ltd Yellow Book • Sub-clause 8.7 set out a self-contained regime for the trigger and payment of delay damages.
Construction
• 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
Court, England and
had been determined under Sub-clauses 2.5 and 3.5.
Wales
Divine Inspiration High Court of
This case highlights the problems caused by not appointing a standing DAB. The contract provided for appointment of DAB which was not complied with, when the other
Trading 130 (PTY) South Africa,
Red, First 20; 20.2; 20.4; party referred to arbitration, the applicant argued that the arbitrator had no jurisdiction to hear the dispute. However, the applicant amended its submissions at the stage
2016 Limited v Aveng Gauteng Local Link
Edition, 1999 20.5; 20.8 of arguments to request that the Court should order the respondent to appoint another tribunal. The question then was whether the applicant could seek a further or
Greenaker-LTA (PTY) Division,
alternative relief than that included in the Notice of Motion.
Ltd and others Johannesburg
M/S Hindustan
Construction Co v High Court of Red, Fourth 1; 6.4; 12; 42; 44; The Contractor sought to claim, inter alia, profit and loss of earning capacity. The Court considered the reason and liability for the delay and held that: 1) the Engineer was
2016 Link
M/S National Delhi, India Edition Partly amended correct to consider the critical activities when assessing the delay; and 2) the Contractor was entitled to profit and loss of earning capacity.
Highways Authority
High Court of The Engineer omitted part of the works. The Contractor claimed disruption and abortive costs as a result. The issues considered by the court in this case were, inter alia, 1)
Ennore Port Limited v
2016 Judicature at Fourth Edition 51.1; 52.1; whether the 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- Link
Hcc-Van Oord JV
Madras in-title to one of the parties to the arbitration agreement, was itself a party to the arbitration agreement.

Although the Contract between the Parties was based on FIDIC, the case itself is not directly relevant to FIDIC. The question for the arbitrator was whether the law
ICC Final Award in Red, Fourth
2016 Paris, France Not Specified governing limitation should be the substantive or the procedural law. The arbitrator decided that in exercise of its discretion, under Art 15(1) of the ICC Rules, the Link*
Case 16247 Edition
substantive law of the Contract (State X) would be applicable to limitation, particularly since all construction works subject to the Contract were carried out in State X.

Two claims were raised by the contractor in arbitration. One for compensation for additional cost for increase in the service tax on insurance premium. The other for the
additional cost on 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
National Highways
The Supreme Court Red, Fourth 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
2016 Authority v M/S Jsc 70 - Amended Link
of India Edition furnishing a performance bank guarantee was a mandatory condition of the contract and it fell under clause 70.8.
Centrodostroy
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.
General Electric
GE purchased a gas turbine by Siemens. GE was willing to export the machine and disassemble it, acquiring know-how that it would allow it to compete with Siemens in the
International Court of Appeal, Silver, First
2016 1.10. market. Siemens secured an interim injunction pending the trial. The contract by Sub-clause 1.10 (similar to FIDIC) provided that the copyright in construction and other Link
Incorporated v New Zealand Edition, 1999
design documents relating to works (including the turbine) remained with Siemens.
Siemens (NZ) Limited

Commercial
Technology and Red, First
Management Clause 20 FIDIC 1999 was used as an example of a time bar clause. In this case, the parties entered into a sub-contract. Defects appeared nearly 9 years after completion.
Construction Edition, 1999 - 20 - Refer to the
2016 (Investment) Ltd v The issues in dispute were 1) whether a clause in the standard terms and conditions of the Respondent, requiring the defects to be notified within 28 days from the date of Link
Court, England and Refer to the Summary Note
Mitchell Design and appearance, was incorporated into the sub-contract, 2) if so, was that subject to Unfair Contract Terms Act 1977's reasonableness test.
Wales Summary Note
Construct Ltd & Anor

Smatt Construction
This was an application for an injunction by the contractor preventing the employer from terminating the contract and awarding the contract to a new contractor. The
Co Ltd v The Country High Court of
2016 Not Specified 15 employer sought to terminate the contract by alleging that the contractor abandoned the works and failed to proceed with the works without delay. The contractor Link
Government of Kenya, Kakamega
opposed this allegation. The application was successful.
Kakamega

Howard Kennedy LLP, May 2024 31

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
Eastern European
The Appellant in this case alleged fraudulent misappropriation of construction materials, i.e. a prefabricated house used to accommodate workers in the project
Engineering (Ltd) v Seychelles Court of First Edition,
2016 6.6 implementation. One of the issues in dispute was whether the advance payment could be used to purchase temporary house accommodating the workers. Another issues Link
Vijay Construction Appeal 1999
was whether the structure accommodating workers could be removed by the contractor because it qualified as Temporary Works under the FIDIC Contract.
(Pty) Ltd
Lafey Construction Co
High Court of The dispute in this case is not directly relevant to FIDIC. It has been only mentioned that the contract between the parties incorporates the terms of the FIDIC Green Book.
2016 Ltd v Prism First, Green Not Specified Link
Kenya, Nairobi The court considered the issues of fraud, mistake (three categories) and misrepresentation.
Investments Ltd

Peeraj General
Trading & Contracting
High Court of The dispute in this case was not directly relevant to FIDIC, however, there is a reference to the dispute settlement mechanism in FIDIC and whether non-payment of
2016 Company Ltd v Fourth Edition 67 Link
Kenya, Nairobi outstanding amounts was a dispute that could trigger arbitration under FIDIC.
Mumias Sugar
Company Ltd

A Libyan corporation commenced arbitration against two Libyan Respondents based on FIDIC terms between the Claimant and the 1st Respondent. During the arbitration
both Respondents raised jurisdictional objections and claimed that the matter should be resolved by the Libyan Courts, referring to the jurisdictional clause in the second
Decision First Civil Law
2016 Not Specified Not Specified contract. The tribunal dismissed the argument and the Respondents appealed to the Supreme Court. Link
4A_490/2016 Court, Switzerland
Held : The Court rejected the application. The Arbitral Tribunal had not violated the right of the parties to be heard. Further, the 2nd Respondent did not raise the fact that
it was not part of the FIDIC Contract during the arbitration, therefore it was precluded from invoking this argument in the setting aside proceedings.

Climate Control CG (Main Contractor) subcontracted with Climate Control (CCL). CG claimed that the subcontract was governed by the terms of the Main Contract. The dispute resolution
Limited v C.G. FIDIC 1988, procedure in the Main Contract required referral of a dispute to the Engineer with escalation to Arbitration. CCL completed the work and submitted invoices. CG paid some,
HC of Trinidad &
2016 Construction Services presumably 67.3 but not all, of them. CCL filed a debt collection claim to the court. CG failed to attend the proceedings and judgment was entered in default against it. CG then made an Link
Tobago
Limited [2016] Claim reprinted 1987 application to stay or set aside the judgment on the basis that the subcontract incorporated the terms of the Main Contract, which provided for arbitration, but failed to
No: CV2015-03486 provide evidence that the terms of the Main Contract were incorporated into the subcontract. CG's application was dismissed.

Dubai Court of First

Dubai Court of FIDIC 4th Ed.
2016 Instance Commercial 67.1 Engineer decision is a pre-condition to the validity of the arbitration. Link
First Instance 1987
Case 757

Konoike Construction
Co. Limited v. The
Ministry of Works,
Tanzania National
Contract for the design and upgrade of a road. The dispute related to variations, price escalation, suspensions and finally termination of the contract. The contractor
Roads Agency, The
FIDIC Yellow claimed: (a) payment for completed work, (b) delay and disruption arising from the suspensions, (c) costs and losses arising from wrongful termination of the contract. The
2016 Ministry of Transport, London, England Link*
Book employer counterclaimed: exclusions of sums paid that should not have been paid; recovery of overpaid amounts; declaration that the contractor failed to complete on
The Attorney General
time; declaration that the employer validly terminated; liquidated damages for delay; costs of repairing defective work. Tribunal found for the contractor.
of the United
Republic of Tanzania,
ICC Case No.
18806/ARP/MD/TO

JV Monteadriano -
Engenharia e
Construção, SA /
Sociedade de
Construções Soares
Contract for construction of a by-pass road. 1 year and 5 months after signing relevant addenda, the Engineer issued a Determination finding that the method of calculation
Da Costa SA
Bucharest, used in respect of the addenda was erroneous and requiring the Contractor to pay the Employer EUR 3m. By reference to Romanian law, the Tribunal held that the
2016 (Portugal) v. The Red Book 1999 13.8, 20 Link*
Romania addenda were binding on the Parties. By signing the addenda, the Parties intended to change the Accepted Contract Amount, despite being calculated using an erroneous
Romanian National
formula. Issues of call on the Performance Security: Employer wrongly called on the Performance Security due to non-compliance with clause 20.
Company of
Motorways and
National Roads S.A.
(Romania), ICC Case
No. 20632/MHM

Howard Kennedy LLP, May 2024 32

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

NH International
(Caribbean) Limited v The Judicial
The proper construction of clause 2.4. In the Board’s view, the decision of the Court of Appeal cannot stand. There was no suggestion that the Arbitrator had misconstrued,
National Insurance Committee off the 2.4; 2.5; 14; 15.3;
Red, First his conclusion was that the employer had to produce evidence that Cabinet approval for payment of the sum due under the Agreement had been obtained. So the
2015 Property Privy Council, 16; 16.1; 16.2; Link
Edition, 1999 Agreement was validly terminated by the contractor. In relation to 2.5, any of those sums which were not the subject of appropriate notification complying with the clause
Development Trinidad and 16.3; 16.4; 19.6
and cannot be characterised as abatement claims as opposed to set-offs or cross-claims must be disallowed.
Company Limited Tobago
(No.2)
A member of JV unilaterally suspended their works and vacated the premises. The Employer terminated the contract and invoked the guarantees arguing that the JV met
M/S Gammon v M/S High Court of Not Specified - the pre-qualification criteria but not the Applicant. The Applicant argued that bank guarantees are independent contracts and cannot be subject to Arbitration under the
2015 Chennai Metro Rail Judicature at Not Specified Refer to the relevant acts of the country. The Employer further argued that the Applicant cannot file applications independently when the contract was entered by the Employer on one Link
Limited Madras Summary Note 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.
In reaching the decision that the Employer had lawfully terminated the Contract, the Court found inter alia that:
• The Contractor had failed to proceed with the design and execution of the works with due expedition and without delay.
• The Engineer was entitled to issue various Clause 15.1 notices to correct and made some general points on their limits.
• The Employer served a notice of termination on the grounds set out in Clauses 15.2(a), (b) and (c), and the Contract was lawfully terminated by the Employer on these
1.1; 1.1.6.8; 4.1;
Obrascon Huarte Lain grounds.
Yellow, First 4.12; 5.1; 5.2; 8;
SA v Her Majesty's Court of Appeal, • Service of the termination notice to the technically wrong address was not fatal.
2015 Edition, 1999 8.1; 8.4; 13; 13.1; Link
Attorney General for England and Wales • Termination could not legally occur if the Contractor has been prevented or hindered from remedying the failure for which the notice is given within the specified
(Amended) 15.1; 15.2; 15.3;
Gibraltar reasonable time.
15.4; 20
• 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.
Bosch Munitech (PTY) High Court of
Red Book, First 14; 14.3; 14.6; The Court considered the formation of the contract and incorporation of FIDIC's General Conditions of Contract. The Court held that no contract was formed between the
2015 Ltd v Govan Mbeki South Africa, Link
Edition, 1999 14.7 parties.
Municipality Gauteng, Pretoria
Red (1987): 67;
Red, First
67.1 ; 67.3; 67.4.
Edition, 1999.
PT Perusahaan Gas Red (1999): 14;
Red, Fourth
Negara (Persero) TBK 20; 20.4; 20.5; Persero 2 - DAB enforcement - Court of Appeal upheld the award enforcing the DAB's decision dismissing the appeal. The CA ruled that it was not necessary to refer the
Court of Appeal, Edition, Revised
2015 v CRW Joint 20.6; 20.7; 20.8; failure to pay back to the DAB (contrary to the decision in HC Persero 1) and it was not necessary for the Contractor to refer the merits in the same single application as its Link
Singapore 1992. Yellow,
Operation [2015] 20.9. Yellow and application to enforce (contrary to the CA in Persero 2).
First Edition,
SGCA 30 Silver (1999): 20;
1999. Silver, First
20.3; 20.4; 20.5;
Edition, 1999
20.6; 20.7
Taisei Corporation v
High Court of Red, Fourth The dispute between the parties revolved around the price adjustment formula stipulated in the Appendix to Tender. The court considered 1)whether the contract was a
2015 West Bengal State 70 Link
Calcutta Edition dual currency contract and 2) the method of application of the price adjustment formula.
Electricity
Venture Helector v Supreme Court, Red, First
2015 1.6 The question in this case was whether the stamp duty was payable by the contractor as specified in the conditions of offer or the employer as specified by the contract. Link
Venture Tomi SA Cyprus Edition, 1999
National Highways 70 - Amended,
The Supreme Court Red, Fourth The disputes relate to consequences of additional amount of royalty payable by the respondent as a result of the notification for upward revision of royalty imposed by the
2015 Authority v M/S Ltd Refer to Summary Link
of India Edition government, price adjustment under the contract and jurisdiction of the arbitral tribunal.
Cementation India Note

Appellate Court, Red, Fourth The court in this case affirmed the decision of the Sofia City Court, namely, it enforced the ICC arbitral award in which the arbitrator refused to consider the counterclaims
Commercial Case No.
2015 Sofia (Commercial Edition, Revised 67.3 by the Contractor which were not previously referred to the Engineer. The Contractor's main argument was that sub-clause 67.3 was in contradiction with the Bulgarian Link
4069/2014
Division) 1992 mandatory rules and public order and therefore was void. This case was referred to the Supreme Court (see below).

Howard Kennedy LLP, May 2024 33

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

DBT Technologies High Court of

(Pty) Limited v August South Africa,
Yellow, First
2015 General Servicing Gauteng Local 4.1; 7.7 The question for the court was whether the Applicant in this case became the owner of the plant and material when the Respondent received payment from them. Link
Edition, 1999
South Africa (Pty) Division,
Limited and others Johannesburg

Ntpc v Hindustan Although the contract between the parties was based on FIDIC 4th, the issue in this case was whether the appellants had, by their petition, made an unequivocal,
High Court of Red, Fourth Refer to the
2015 Construction categorical and unambiguous admission of liability with regards to the claims arising out of the contract. The Court decided that even when a part of a document gives an Link
Delhi, India Edition Summary Note
Company impression that there is admission of liability, the document has to be read as a whole which may dispel that impression.

Conditions of
Subcontract for
Works of Civil
Aircraft Support Court of Appeal,
Engineering 1.6; Refer to
2015 Industries Pty Ltd v New South Wales, Note: FIDIC conditions mentioned seem to be heavily amended. Link
Construction - Summary Note
William Hare UAE LLC Australia
No further
information
given

The applicant in this case applied to court seeking order that the main suit before this court be referred to arbitration under clause 2 of the Form of Agreement as read with
clause 67.3 of the FIDIC Conditions. The questions for the court were whether there was an arbitration agreement in place and whether the Applicant could refer to
Triple Eight arbitration at this stage. In this case, the Respondent had not executed the Form Agreement and denied that there was a binding contract pursuant to Form of Agreement.
Construction (Kenya) High Court of The court found that the arbitration clause was not binding on the Respondent and a full hearing was required. In regards to the second question the court held that the
2015 Fourth Edition 67 Link
Ltd v Kenya Pipeline Kenya, Nairobi applicant was in significant delay in commencing this application considering that the main suit before this court was pending in this court since 2009. The court agreed
Company Limited with other judgements stating that although there was a dispute that was capable of being determined, the dispute could not be referred to arbitration as the court was
seized of the matter and that the application should have been made at the time of entering appearance not after appearance and filing of defence. Therefore, the court
rejected the application.

The Appellant (Employer) entered into two contracts with the Respondent (Contractor). The first contract was completed and the second was 'abandoned' following
mobilisation. The contractor claimed that Employer remained indebted to it under the first contract and, under the second, that a commitment fee that ought to have
been paid was not paid and following “the termination and or abatement of the second contract” its submitted contractual claim was certified. The Employer denied the
claim as being time-barred, asserted that the Contractor had not complied with the terms of the contract and claimed entitlement to LADs. The High Court found that the
Kisii County
Employer had admitted the debt and that the claim was not time-barred as the cause of action was the Employer's statement two years later that it was not going to pay
Government v
Court of Appeal of FIDIC 4th Ed. the outstanding amount.
2015 Masosa Construction 48.3; 60 Link
Kenya, Kisumu 1987 The Employer appealed under Clause 48.3. It asserted that the Contractor should have demonstrated that it had completed the works under the contract by producing a
Company Ltd [2015]
“Taking-Over Certificate” issued by the Engineer to show substantial and satisfactory completion of the works under the Contract. Also that no evidence was presented
eKLR
before the trial court demonstrating compliance with Clause 60 requiring the Contractor to submit to the Engineer on a monthly basis valuations of work done for
certification to facilitate issuance of payment certificates on the basis of which payments would then be made. The Court of Appeal held that the trial judge was wrong and
the cause of action rightly accrued upon the issuance of the Final Payment Certificate, however the Limitations of Actions Act did apply as the Employer was a local
authority. In conclusion, the Court held that it was unnecessary to establish the claim beyond the Employer's admission of the debt.

True North True North entered into a FIDIC contract with the 2nd Respondent (KNHA). The subject of the case was the Tripartite Agreement (no arbitration provisions) through which
Construction True North was granted a loan from Eco Bank to finance the project, backed and secured by KNHA. It was argued that KNHA reneged on the Tripartite Agreement by failing
Company Limited & 3 High Court of FIDIC 4th Ed. to pay the balance to True North and the latter sought relief from the courts. It was the 2nd Respondent position that the Genera Conditions of the Contract (GCC)
2015 Not Specified Link
others v Eco Bank Kenya, Nairobi 1987 provided that the general conditions shall be those forming part 1 of the FIDIC conditions of the construction contract between the 1st Claimant and 1st Respondent.
Kenya Limited & KNHA sought a stay of proceedings on the basis that the dispute should be referred to arbitration. Held: The Tripartite Agreement was a commercial loan agreement
another [2015] eKLR separate from the construction contract and did not fall within FIDIC Conditions. The request for the stay of proceedings in favour of arbitration was rejected.

Howard Kennedy LLP, May 2024 34

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Republic of South Sudan (“Respondent”) opened up a tender for the construction of an electrification project. Claimant was the successful bidder and received the
Final Letter of Award. Claimant asserted that, before the contract was signed, Respondent modified the contract to include only five towns rather than eight. By that time,
Claimant had already carried out surveys of the eight towns. The contract was formalized and the signed Financial Agreement stipulated the date of Site possession by the
Active Partners Group Contractor and the requirement of a Letter of Guarantee. However, the Letter of Guarantee was not submitted by Respondent to Claimant. As such, Claimant terminated
Limited v. The the Contract and sought to obtain reparation by recourse to arbitration. The Claimant claimed entitlement for: 1) Lost Profit - Claimant asserted that when it won the
Republic of South tender, Respondent had accepted Claimant’s gross profit as it was the most competitive. 2) Claimant claimed consequential damages based on Respondent’s failure to
Arbitral Tribunal FIDIC Yellow
2015 Sudan (PCA Case No. 4.2; 8.6; 20 provide the payment guarantee, which caused Claimant's financier to withdraw from the South Sudan market. As a result, Claimant lost a potential contract where it was Link
under UNCITRAL Book 1999
2013/4) – Final expected to realise a substantial profit. Held: The Republic of South Sudan had breached its obligation under the Contract. As a result of this breach, Claimant was entitled
Award – 27 January to terminate the Contract and to damages plus interest. In ordering damages, the Tribunal sought to restore Claimant’s position to what it would have been had the
2015 contract been performed. The AT concluded that Claimant was entitled to 'lost profits' net of tax. The Tribunal found that Claimant was entitled to a 25% profit margin for
the net loss of profit. The AT also found that Claimant had shown extensive evidence of the sums incurred in expectation of the contract’s performance and that
Respondent was aware of their activities. As such, the AT ordered Respondent to pay the Contractor's direct damages and indirect costs. The LDs and consequential
damages claims were dismissed.

The Claimant (Omega) brought an action for recovery of the amount certified in a Final Certificate issued by the Project Manager under a contract. The Respondent
(Kampala) objected to the payable figures outlined in the Final Certificate due to alleged performance shortfall on the part of the Claimant. The Respondent unilaterally
reviewed the certificates before issuing a final certificate with a reduced outstanding payment. Establishing which set of certificates was legally enforceable formed the
Omega Construction High Court OF heart of this case. Held: The court ruled in favour of the Claimant, finding the Respondent's claims to be substantially impaired on several grounds. The Respondent's
58.2, 39.3, 39.4,
Company v Kampala Uganda at FIDIC 4th Ed. unilateral amendment of the Final Certificate did not accord with the GCC and it was not delivered to the Claimant, nor agreed to in writing. In principal the issuing of final
2015 39.6, 42, 43, 60.2 Link
Capital City Authority Kampala, Civil 1987 certificates creates a liquid debt – discrepancies ought to have been raised prior to certification and resolved by adjudication or arbitration as per the parties’ agreement.
60.8
Case No. 780 of 2015 Division Failing this, the court found that the set-off sought ought to have been raised in the current suit via counterclaim and not through unilateral adjustment of the final
certificate. The Respondent was found further to have misrepresented the Final Certificate of Completion to the Claimant, following the Project Manager's issue, and
consequently was estopped from raising the erroneous conduct of its project manager as a justification for its non-payment. The plaintiff was awarded damages with
interest.

Midroc Water Drilling

Co. Ltd v National
The defendant applied to take over from the plaintiff a construction site at Badasa Dam and for all further proceedings to be stayed and referred to arbitration. The court
Water Conservation & High Court of
2015 Not specified 67.3 refused to issue orders for taking over and (on the basis that the application regarding arbitration was out of time) refused to stay proceedings or refer the dispute to Link
Pipeline Corporation Kenya at Nairobi
arbitration.
[2015] eKLR, Civil Suit
45A of 2013

The Applicant - Members of Parliament (MP) sought judicial review to challenge the decision of the Government of Uganda (Ministry of Works & Transport - (MWT)) to
Sekikubo & Ors v enter into contract under the FIDIC Conditions with China Harbour Engineering Company (CHEC) on the basis of illegality. They argued that the Contract should be deemed
Attorney General High Court OF null and void as it was biased and contrary to public policy. They sought a Certiorari Order to quash the contract and an Order of Prohibition barring MWT from
(Misc. Cause No. 092 Uganda at Unknown FIDIC implementing the Contract. It was claimed that CHEC had insufficient inexperience and that a proper technical evaluation would save the Government and the people of
2015 Link
of 2015) [2016] Kampala, Civil type contract Uganda. The Contract was also criticised as it provided for variations, which were likely to increase the cost of the project.
UGHCCD 26 (4 April Division Held : The Applicant (MPs) had no locus standi as they could not show they were 'personally affected' by the decision. Where public rights were involved, the Applicant has
2016) to prove that is acting in relation to a decision which directly affects its own interests, because it would be acting in the same way as an individual. The Court concluded
stating that 'the Applicants in this case are simply busy bodies or Mischief Makers.'

LLC Plastikana and JSC

Arbitration court of This case concerns the enforceability of time bar under subclause 20.1 and the applicability of this in relation to claims for financing charges within the context of Russian
Yaroslavlvodokanal,
cassation instance, law. Russian courts concluded that the 20.1 time bar clause is not applicable to claims for financing charges. The court noted that under Russian law, failure to give notice
2014 Case No. A82- 1999 14.8 and 20.1 Link
Volga-Vyatsk of its claim for financing charges did not amount to a waiver or its rights and the Russian Civil Code gives a creditor the right to demand a penalty determined by law or
8698/2013, 29 August
District, Russia agreement in the event of non-fulfilment of an obligation by a debtor. This was upheld on appeal.
2014

Howard Kennedy LLP, May 2024 35

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Nazir Basic Joint

Venture, OSE and CPC
Joint Venture, Islam
Trading Corporation
Limited (ITCL) and
Bengal Development
Corporation Ltd.
(BDC) v. Roads and
High Court of 67, 67.3, 70.1, Application to set aside arbitral award. Arbitration dispute related to changes in cost due to subsequent legislation. Whether application was time barred. The court found
2014 Highways Not specified Link*
Bangladesh 70.2 that the application was time barred, restored the award (which had been subject to a stay) and ordered the applicant to take immediate steps to pay as per the award.
Department, Roads
Division, Ministry of
Communication and
Government of
Bangladesh, ICC Case
No.15642/JEM/MLK/
CYK, 19 February
2014

ICC Procedural Order

Bucharest, 2.5; 14.9; 14.11; In this case the Arbitral Tribunal considered whether it was appropriate to allow new claims to be introduced and considered the delay and disruption as a result of
2014 of February 2014 in Not Specified Link*
Romania 14.13; 20.6 introducing new claims.
ICC Case 19105
This case is not directly relevant to FIDIC. It only refers to the pre-arbitral negotiation procedure which is to be regarded as a pre-requirement to commence arbitration. If
ICC Final Award in
2014 Paris, France Not Specified 20 these pre-requirements are not met, claims will either be dismissed without prejudice or proceedings stayed pending the completion of pre-arbitral negotiation Link*
Case 13686
procedures.

The Claimant contended that the Arbitral Tribunal lacked jurisdiction to determine certain issues from a DAB decision because the Respondent failed to issue its Notice of
Dissatisfaction (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
ICC Final Award in An Eastern Yellow, First 2.5; 20; 20.4;
2014 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 Link*
Case 19346 European Capital Edition, 1999 20.5; 20.6
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.

(1) The Arbitral Tribunal held that a Claimant is not required to give notice to the Engineer and await its determination under Sub-clause 3.5 before referring a dispute to
arbitration if reference to Sub-clause 3.5 is not explicitly provided for in the Contract. The claims in question involved Sub-clauses 4.2, 11.9 and 14.9 regarding performance
3.5; 4.2; 11.9;
bonds, performance certificates and retention money, respectively, none of which refer to Sub-clause 3.5. Sub-clause 3.5 only applies when the relevant Sub-clause so
ICC Final Award in An Eastern Red, First 14.9; 20; 20.1;
2014 provides and Sub-clause 20.1 only applies to extensions of time or additional payments. The return of a retention money guarantee does not constitute consideration given Link*
Case 19581 European Capital Edition, 1999 20.4; 20.6; 20.7;
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
20.8
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.

Honeywell Technology and Not specified,

International Middle Construction First edition, 14.6; 14.7; 16.2;
2014 Contracts to bribe are unenforceable, however, contracts procured by bribe are not unenforceable. Note: Clauses cited are not specific to a particular Book. Link
East Ltd v Meydan Court, England and 1999 - Refer to 16.4; 20.6
Group LLC Wales Summary Note
National Highway
High Court of Red, Fourth
2014 Authority v Som Dutt 70.2 - amended The question in this case was whether the entry tax introduced was recoverable from the Employer under the subsequent change in the legislation clause. Link
Delhi, India Edition
Builders NCC
Technology and
Peterborough City 1.2.6; 1.4.1; 20.2; Can a party go straight to arbitration under Sub-Clause 20.8 when no DAB is in place or is it mandatory to put a DAB in place prior to referral to arbitration? What if one
Construction Silver, First
2014 Council v Enterprise 20.3; 20.4; 20.5; party tries to scupper the process? A party refusing to sign the DAA can be compelled to do so by an order of specific performance. Thus, failure to agree on DAA does not Link
Court, England and Edition 1999
Managed Services Ltd 20.7; 20.8 demand the application of sub-clause 20.8.
Wales

Howard Kennedy LLP, May 2024 36

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

PT Perusahaan Gas
Negara (Persero) TBK
v CRW Joint High Court, Red, First 20; 20.4; 20.5; Persero 2 - DAB enforcement - These proceedings in the High Court were a second attempt to enforce the DAB's binding but not final decision. This time, following the
2014 Link
Operation (Indonesia) Singapore Edition, 1999 20.6; 20.7 guidance of the CA in Persero 1, the merits were placed before the arbitral tribunal and the arbitrator issued an interim award which was not set aside by the court.
and another matter
[2014] SGHC 146

Chennai Metro Rail High Court of

Red, First
2014 Limited v M/S Lanco Judicature at 20.6- amended The contract between the parties was FIDIC, however, the case is concerning removal of arbitrators. Link
Edition, 1999
Infratech Limited Madras
Amended FIDIC Yellow Book.
In reaching the decision that the Employer had lawfully terminated the Contract, the Court found inter alia that:
• The Contractor had failed to proceed with the design and execution of the works with due expedition and without delay.
1; 1.1.6.8; 1.13;
• The Engineer was entitled to issue various Clause 15.1 notices to correct and made some general points on their limits.
1.3; 3.3; 4; 4.1;
• The Employer served a notice of termination on the grounds set out in Clauses 15.2(a), (b) and (c), and the Contract was lawfully terminated by the Employer on these
Obrascon Huarte Lain Technology and 4.10; 4.11; 4.12;
grounds.
SA -v- Her Majesty’s Construction Yellow, First 5; 5.2; 8; 8.1; 8.2;
2014 • Service of the termination notice to the technically wrong address was not fatal. Link
Attorney General for Court, England and Edition, 1999 8.3; 8.4; 8.6; 8.7;
• Termination could not legally occur if the Contractor has been prevented or hindered from remedying the failure for which the notice is given within the specified
Gibraltar Wales 13; 15.1; 15.2;
reasonable time.
15.3; 15.4; 20;
• Termination events do not have to amount to repudiation.
20.1
• 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.
Al-Waddan Hotel Technology and
Red, Fourth 1.5; 2.1; 2.6; 49;
Limited v Man Construction The contractor was entitled to refer the dispute directly to arbitration when the engineer's appointment had clearly terminated. (In this case, the parties could refer the
2014 Edition, Revised 66; 67; 67.1; 67.2; Link
Enterprise Sal Court, England and dispute to arbitration after the engineer's decision or if the engineer failed to give notice of its decision within 84 days.)
1992 67.4; 68.2
(Offshore) Wales
The contract between the parties was based on FIDIC with conditions of particular application. A dispute arose between the parties as to additional sums claimed by the
M/S National Contractor. The dispute was referred to the DRB but the DRB failed to issue its recommendation within the allowable time period. The dispute was therefore referred to
High Court of 1.1; 6.4; 12.2;
2014 Highways Authority v Fourth Edition 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 Link
Delhi, India 42.2; 44.1;
M/S Hcc Ltd 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?
The Claimant (Contractor) claimed a Variation in Price under Clause 70. The Employer evaluated and reduced the sum. The Contractor claimed that Employer was not in
compliance with Clause 70 and had never expressly disputed the Certification of Variation. It therefore urged the court to enter judgment on admission against the
True North Employer.
Construction Ltd v The Respondent (Employer) did not dispute the Contractor's entitlement to a Variation in Price under Clause 70, but denied that the Contractor had submitted a Variation
High Court of
2014 Kenya National FIDIC Red 1999 56.1; 60; 70 Certificate for the claimed amount. The Employer admitted to owing an amount equivalent to the achieved progress (75%) but argued that Clause 70 the FIDIC conditions Link
Kenya, Nairobi
Highways Authority had to be read and interpreted together with Clause 56.1. Payments under the Contract were to be made on the basis of works undertaken, measured, approved and
[2014] eKLR certified for payment in accordance with Clause 60.
Held : The Court referred to Clause 67, stating that there was an elaborate dispute mechanism in place and, as such, the matter ought to be referred to the Engineer in the
first instance and then follow the agreed dispute mechanism.

The Respondent (Employer) terminated the contract with the Claimant (Contractor). The Claimant acknowledged the dispute resolution mechanism under clause 67, but
stated that it was too elaborate and time-consuming and considered that a preservatory order was required to maintain the status quo. It therefore sought a court order
for an interim measure of injunction preventing the Employer 1) from assigning the contract to another contractor and 2) confiscating, removing or selling the plant,
machinery and equipment situated at site, pending the hearing and determination of the intended arbitration.
Talewa Road
Held : 1) The court declined an injunction with respect to assigning the contract to others and applied Cetelem v Roust Holdings, stating that the purpose of interim
Contractors Limited v
High Court of FIDIC 4th Ed. measures or injunctions was to preserve an asset and evidence. The contract between the Employer and Contractor could not be deemed an asset, tangible or otherwise
2014 Kenya National 67 Link
Kenya, Nairobi 1987 and 'restraining the Respondent from assigning the contract to other parties would amount to this court rewriting the contract, something a court would not have
Highways Authority
jurisdiction or power to do...'
[2014] eKLR
2) The court granted an injunction on the balance of convenience in respect of confiscation etc. of plant, equipment and machinery as these were 'items that were capable
of being dissipated if not preserved.'
The court found that it would be just, equitable, proper and fair to grant an injunction as an interim measure of protection, pending the referral of the dispute to the AT for
its determination in line with the provisions of clause 67.

Howard Kennedy LLP, May 2024 37

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Claimant supplied bitumen to the 1st Respondent, who ordered it for its FIDIC Contract with the 2nd Respondent (Kenya National Highways Authority). The Contract
was terminated by mutual agreement. The Claimant claimed that the 2nd Respondent had paid the 1st for the bitumen, however, this payment had not reached the
South Shore Claimant at all. The 1st Respondent argued that, due to delay in supply of the bitumen, it had purchased bitumen from another supplier, informing the Claimant that its
International Limited supplies were no longer required. Nevertheless, the 2nd Respondent delivered the bitumen to site, simply to be put in storage and used (or a portion used) later, should
High Court of FIDIC 4th Ed.
2014 v Talewa Road 63.1 the need arise. The 1st Respondent argued that this bitumen did not belong to the 2nd Respondent. The 3rd Respondent claimed that the restraining order from the earlier Link
Kenya, Nairobi 1987
Contractors Limited & proceedings (see Talewa Road Contractors Limited v Kenya National Highways Authority [2014] eKLR ) was delaying its release to the Claimant.
another [2014] eKLR Held : The Court found that the bitumen ordered by the Claimant did not belong to the 1st Respondent and it was therefore not subject to the aforementioned restraining
Court Order. It also found that the 2nd Respondent had obtained title for the stored bitumen, once it transferred the payment for it to the 1st, because the latter was
acting as an agent for the 2nd Respondent (Kenya National Highways Authority) and was entitled to the use of bitumen as per clause 63.1 of the Contract.

The Contractor notified the Employer of its intention to refer the dispute to the DAB. The constitution of the DAB was delayed and, when finally appointed, the DAA (as per
20.2) was not executed. Later the Contractor filed for arbitration with the ICC. Alongside the arbitral proceedings, the parties continued their exchanges as to the
constitution of the DAB.
2 months after filing, the DAB chairperson circulated a draft DAA, the Employer proposed some changes to it and passed it to the Contractor for signature. The Contractor
stated that it had commenced arbitration because of the fact that the DAB was still not formally in place 18 months after the start of the contract. The Employer challenged
the Arbitral Tribunal's jurisdiction on the basis that the Contractor had failed to comply with the DAB procedure. The parties agreed to bifurcate the proceedings and obtain
an interim award on the Employer's jurisdictional point.
1.2; 2; 20; 20.2; The Tribunal upheld its jurisdiction. It held that as per clause 20 the DAB procedure was only optional and non-mandatory because - 1) the term 'shall' in 20.2 must not be
Decision Swiss Supreme FIDIC Red 1999,
2014 20.4; 20.5; 20.6; read in isolation but in the broader context of the dispute resolution mechanism instituted by Clause 20 and the use of the term 'may' in 20.4 indicated that the DAB was Link
4A_124/2014 Court 4th Ed.
20.7; 20.8 only optional. This interpretation is supported by Sub-Clause 20.4, §6, 2nd sentence, which mentions two exceptions to the principle that no party can introduce an
arbitration request without tendering a notice of dissatisfaction to the other after receiving the DAB decision, 2) Clause 20.8 permitted the parties to resort to Arbitration
where one party had attempted to resolve a dispute through the DAB, but no DAB was in place and 3) the fact that the FIDIC conditions did not include a deadline within
which the DAB was to be consulted which further supported the argument that the DAB procedure was optional.
Following issue of the Interim Award, the Employer filed request with other Swiss Courts to set aside the interim award for lack of jurisdiction.
Held : The DAB procedure was a mandatory pre-arbitral step, however according to clause 2, the DAA comes into force when the principal, the contractor and all members
of the DAB have signed it. Failing this, legal writing considers that there is no validly constituted DAB and that the only remedy a party has when faced with the refusal of
the other party to sign the DAA is to go direct to arbitration pursuant to Sub-Clause 20.8 (Baker, Mellors, Chalmers and Lavers, op. cit., p. 520, n. 9.71).

(1) Whether a Notice of Dissatisfaction (NoD) needs to set out the reasons of the dissatisfaction. The Respondent had identified the letter as a Sub-clause 20.4 NoD and
listed out the matters in dispute but did not include the reasons of the dissatisfaction. The Arbitral Tribunal held that the reasons were not necessary for the notice to be
compliant. Sub-clauses 20.4 and 20.7 do not provide that failing to set out the reasons renders the notice void or non-existent. The notice must be “expressly defined or at
10.2; 16.1; 16.2; 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
ICC Final Award in An Eastern Yellow, First
2013 20; 20.4; 20.5; 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 Link*
Case 18320 European Capital Edition, 1999
20.6; 20.7 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.

Final award by an arbitral tribunal relating to a dispute over a waste water treatment plant. The tribunal found that a counterclaim by the employer for delay damages was
ICC Final Award in An Eastern Yellow, First 2.5; 3.5; 5.2; 20.1;
2013 inadmissible 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 Link*
Case 16765 European Capital Edition, 1999 20.4
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.

The Arbitral Tribunal decided that it had exclusive jurisdiction to rule on objections to its jurisdiction. When the Arbitration Clause does not contain any specific choice of
law the arbitrator considered that the arbitration clause should be interpreted pursuant to three generally accepted principles. On the issue of validity of the arbitration
ICC Final Award in Red, First 1.4; 4.2; 20.4;
2013 Paris, France 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 Link*
Case 17146 Edition, 1999 20.6; 20.8
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.

National Insurance
Property 2.4; 3.5; 8.3; 14;
Court of Appeal,
Development Red, First 14.6; 14.7; 16; The proper construction of clause 2.4. Held that the arbitrator was mistaken in thinking that evidence of Cabinet approval was needed to satisfy clause 2.4 in the light of
2013 Trinidad and Link
Company Ltd v NH Edition, 1999 16.1; 16.2; 20.6; the assurance and the arbitrator was effectively demanding the highest standard rather than reasonable evidence of assurance.
Tobago
International 26; 30
(Caribbean)Limited

Howard Kennedy LLP, May 2024 38

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
The Supreme Court of Queensland analysed the meaning of sub-clause 14.6 of an amended Silver Book, in particular, the words ‘payments due’. Sedgman contracted to
design and construct parts of the Boseto Copper Project in Botswana for Discovery Copper. Sedgman applied for an interim payment of USD 20 million. Amended sub-
clause 14.6 required Discovery Copper to give notice within 7 days if they disagreed with any items in the application. Discovery Copper failed to give the notice and did not
contest the application until 14 days later. Sedgman applied to the Court for payment of the sum claimed.
Sedgman South Africa 1.3; 2.5; 3.5; 11.4; The Court dismissed Sedgman’s application for payment, holding that there was a genuine dispute and that Sedgman’s interpretation of the contract was incorrect. The
(Pty) Limited & Ors v Supreme Court, 13.3; 13.7; 14; Court held that: ‘This contract did not entitle the applicants to be paid the sum which they now claim, simply from the fact that there was no response to their interim claim
Silver, First
2013 DiscoveryCopper Queensland, 14.3; 14.4; 14.6; within the period of seven days stipulated in the contract.’ Link
Edition 1999
Botswana (Pty) Australia 14.7; 14.9; 14.10; McMurdo J considered the words ‘payments due shall not be withheld’ at sub-clause 14.6 of the contract and stated that they were ‘different from saying that a payment
Limited 14.11; 20; 20.4 will become due if a notice of disagreement is not given,’ as Sedgman contended. The Judge held: ‘The alternative view [...] 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 stated that, if Sedgman were correct, the operation of the
contract clauses to determine claims and variations could otherwise be displaced by the operation of sub-clause 14.6. If the contractor included a claim in his application
for payment which was inconsistent with, e.g., a DAB’s determination, and the employer did not notify disagreement, the outcome would be that the DAB’s determination
would be displaced.
Johannesburg Roads
Agency (Pty) Ltd v High Court, North
2013 Midnight Moon Gauteng, Pretoria, Not Specified Not Specified FIDIC mentioned in passing only. A procedural decision setting aside a default judgement. Link
Trading 105 (Pty) Ltd South Africa
and Another

There was no DAB in place, therefore parties were entitled to refer the dispute directly to arbitration. There was also an additional claim regarding performance guarantee
Doosan Babcock v Technology and under clause 4.2 which was replaced by the parties. The case concerned the Claimant’s application for an interim injunction to restrain the Respondent from making
Comercializadora De Construction Red, First 4.2; 10; 20.2; demands under two “on demand” performance guarantees. In doing so, the Claimant argued that the Respondent has wrongfully failed to issue a taking-over certificate.
2013 Link
Equipos y Materiales Court, England and Edition, 1999 20.4; 20.8 The Claimant contended that they had a strong claim that demand for payment would constitute breach of contract as the Respondent had failed to issue Taking Over
Mabe 11/10/13 Wales 11/10/13 Certificates for plant that had been taken in to use by the Respondent. 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.

This was an application to the High Court of Calcutta pursuant to Section 34 of the Indian Arbitration and Conciliation Act 1996 for the setting aside of an arbitral award.
State Of West Bengal 12.1; 12.2; 53.1; The underlying dispute related to a road improvement contract which incorporated FIDIC conditions. The court set aside the arbitral award on the basis that it conflicted
High Court, Red, Fourth
2013 vs Afcons Pauling 53.2; 53.3; 53.4; with Indian public policy because it was not decided in accordance with the contract and was not based on cogent evidence. Link
Calcutta Edition, 1987
(India) Ltd 53.5; 67.3
State of West Bengal v Afcons Interrelated Case 4 of 4 – Decision 10/09/2013 re Tender Notice S-09

Technology and
Red, Fourth
Man Enterprise v Al- Construction
2013 Edition, Revised 67 Right of Contractor to start arbitration where Employer fails and refuses to appoint a new Engineer; no need to wait the 84 days. Link
Waddan Hotel Court, England and
1992
Wales

This is not a FIDIC case but referred to the case of Esor Africa (Pty) Ltd/Franki Africa (Pty) Ltd JV and Bombela Civils JV (Pty) Ltd, SGHC case no. 12/7442. In Esor the parties
had referred a dispute to the FIDIC DAB under clause 20.4 of the FIDIC Conditions of Contract. The DAB gave its decision which was in favour of the contractor. The
employer refused to make payment relying on the fact that it had given a notice of dissatisfaction and the contractor approached the Court for an order compelling
High Court, South 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
Stefanutti Stocks (Pty) 20; 20.4; 20.6;
Gauteng, Red, First 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
2013 Ltd v S8 Property (Pty) Refer to Summary Link
Johannesburg, Edition, 1999 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
Ltd Note
South Africa 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.”

Howard Kennedy LLP, May 2024 39

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Court interpreted the provisions of a performance security that was issued in compliance with Sub-Clause 4.2 of an amended FIDIC 1999 standard form. The contract in
question was the performance security itself, not the construction contract. The Respondent argued that prior to making a demand on the performance security on the
Eskom Holdings SOC
basis of any of the grounds in Sub-Clause 4.2(a) to (d), the Claimant was required to serve notice under Sub-Clause 2.5. The performance security incorporated the grounds
Limited v Hitachi
under Sub-Clause 4.2(a) to (d) by reference. The Court decided that the performance security was an on demand bond and its interpretation relied on the bond itself, not
Power Africa Supreme Court, Red, Fourth
2013 2.5; 2.4; 15.2; the construction contract necessarily. On the basis of this bond the Claimant was not required to serve a Sub-Clause 2.5 notice in order to make a call, i.e., the Sub-Clause Link
(Proprietary) Ltd and South Africa Edition, 1999
2.5 notice is not a requirement under the on demand bond. The only relevant notice under Sub-Clause 4.2(d) is a Sub-Clause 15.2 termination notice. However, Sub-Clause
Hitachi Power of
4.2(d) expressly allows calling the bond on the basis of Sub-Clause 15.2 grounds irrespective of whether the termination notice has been given. The Court also recognised
Europe GMBH
that Sub-Clause 4.2(b) refers to a Sub-Clause 2.5 notice. However, reference to the notice is not tantamount to a requirement that a Sub-Clause 2.5 notice is given in order
to trigger Sub-Clause 4.2 and allow the Employer to call on the bond without breaching the construction contract.

(1) The Arbitral Tribunal held that a Claimant does not need to refer the dispute to DAB before referring to Arbitration. The circumstances by which a DAB is not in place
which trigger Sub-clause 20.8 (i.e., the dispute may be raised to arbitration without the need for a DAB decision or amicable settlement) are not limited to those similar to
20; 20.1; 20.2;
ICC Final Award in An Eastern Yellow, First the expiry of the DAB’s 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
2013 20.3; 20.4; 20.5; Link*
Case 18505 European Capital Edition, 1999 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
20.8
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.
National Highways
High Court of Red, Fourth
2013 Authority of India v 52.1; 52.2; 60 Various claims were considered including claims for unforeseen costs that were incurred as a result of late hand-over of the site and sums for idle the plant and machinery. Link
Delhi, India Edition
Ncc-Knr
The Arbitral Tribunal was asked to determine (1) whether an identifiable dispute about an Adjudicator's decision was necessary before the obligation to give notice arose,
and (2) 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
Not Specified - 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;
ICC Final Award in Port Louis,
2013 Refer to 20 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 Link*
Case 16435 Mauritius
Summary Note. 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].
High Court, South
Tubular Holdings (Pty)
Gauteng, Red, First
2013 Ltd v DBT 20.4; 20.6 Binding but not final decision of the DAB must be complied with pending the arbitration. Link
Johannesburg, Edition, 1999
Technologies (Pty) Ltd
South Africa
Midroc Water
Drillining Co Ltd v
Cabinet Secretary,
High Court of Red, Fourth The Respondent argued that the suit was premature. The court made an order to stay the proceedings so parties could commence settlement of their dispute in
2013 Ministry of 67 Link
Kenya Edition, 1987 accordance with the settlement procedure set forth by FIDIC.
Environment, Water
& Natural Resources
& 2 others
M/S Jsc
Centrodostroy v M/S High Court of Red, Fourth
2013 52 - Amended Certain quantities in the BoQ were reduced or omitted by the Engineer. The claimant claimed for price variation as a result of such reduction. Link
National Highways Delhi, India Edition
Authority
National Highways
High Court of Red, Fourth 14.4; 60.1; 70.3 -
2013 Authority v MS Kmc- The question in this case was whether the contractor was entitled to payment towards price adjustment on all items of work referred to in the BoQ. Link
Delhi, India Edition Amended
Rk-Sd JV

Doosan Babcock v Technology and

Comercializadora De Construction First Edition, 1.1.3.4; 7.4; 8.2;
2013 Following the judgement on 11/10/2013, the Respondent made an application to discharge the injunction. Link
Equipos y Materiales Court, England and 1999 9; 10; 12
Mabe 24/10/13 Wales

Howard Kennedy LLP, May 2024 40

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Claimant (Contractor) entered into a contract with the Respondent - Tanzania National Roads Agency (TNRA). The applicable law was Tanzanian law. The Engineer
failed to issue an Interim Payment Certificates (IPC). A dispute arose mainly as to whether the Respondent was responsible for certain delays and whether, consequently,
the Claimant was entitled to recover damages. The Claimant sent a referral to the DAB and terminated the Contract without waiting for the DAB's decision. Later,
dissatisfied with the DAB's decision, the Claimant filed for arbitration. During the Arbitration, the parties agreed to waive the requirement to bring disputes before the DAB
prior to referring them to arbitration. The Engineer's relationship with the Respondent (TNRA) was also an issue. To determine this relationship, the arbitral tribunal first
examined the relationship between English law and Tanzanian law, as both parties had referred to a number of English court decisions.
Not cited, but 1.4 The AT Decided: A condition for termination of the contract was lacking because the Claimant had not waited for the DAB's decision and the Claimant was ordered to pay a
Case No. T 3735-12 Svea Court of Unknown FIDIC
2013 and 20.4 considerable sum to the Respondent. Link
03 May 2013 Appeal type contract -
applicable On the Engineer's relationship with TNRA, the arbitral tribunal concluded that the Engineer did not represent the Respondent (TNRA) and that, consequently, the Engineer's
failure to issue the IPC could not be attributed to the Respondent (TNRA).
The Contractor filed a challenge of the Award arguing that the AT had exceeded its mandate and committed a procedural error as it failed to apply the parties' choice of
applicable law.
Held : If an arbitral tribunal committed an error in its interpretation or application of a choice of law rule, this is considered a substantive error and, under Swedish law,
does not constitute a ground for annulment of an arbitral award. It concluded that the majority had not failed to apply Tanzanian law and that the possibility that the
majority may have been in error regarding the meaning of Tanzanian law would not constitute a ground for annulment of the award.

BSC-C&C JV a.k.a. BSC-

C&C 'JV' v. The Louis
Berger Group, Inc. /
Road project in Afghanistan. Security was a major concern and issue. Clause 65 of the contract related to special and Employer risks. Contractor made numerous claims
Black Veatch Special Morristown, New
2013 Not specified 65 including 8 claims under clause 65 (equipment damage and injury or death of persons; site and home office overhead; supporting documentation; subcontractor Link*
Projects Corp. Joint Jersey
equipment; equipment downtime; and others). Tribunal awarded sums to Contractor.
Venture, ICDR Case
No. 50-110-T-00415-
11
Archirodon-Arab
Contractors Joint
Contract for the constrution of the quay walls for a new container terminal. The contractor claimed: payment for works done; suspension costs; financing charges; payment
Venture v. Damietta
for plant and materials. The employer opposed the jurisdiction of the tribunal on various grounds (citing Egyptian law) alternatively submitted defences to the claims, in
2013 International Port Paris, France Not specified 1.4, 20.6 Link*
particular that the contractor's suspension of the work was not justified, that the engineer could not bind the employer and that the contractor failed to mitigate. Tribunal
Company S.A.E., ICC
dismissed the employer's objections to jurisdiction and on the money claims found largely for the contractor.
Case No.
17071/VRO/AGF
G.P. Zachariades
Dispute arising out of a Parent Company Undertaking in which Respondent undertook to pay to Claimant, upon first written demand, certain sums and in respect of which
Overseas Ltd. v.
Red Book 4th Respondent failed to make such payments. Underlying the PCU was a FIDIC-based contract for the construction of residential villas. The arbitrator considered various issues
2013 Arcapita Bank B.S.C., Manama, Bahrain Link*
Edition 1987 relating to the PCU, including whether or not it was an 'on demand' guarantee, and a claim of unjust enrichment. The arbitrator found Respondent liable to pay pursuant to
ICC Case No.
the PCU.
17855/ARP/MD/TO

Glocoms, Inc. v.
Vietnam Bank for
Final award in dispute relating to the acquisition of an intrabank payment and customer accounting system and alleged failures to make payment for services related to the
2013 Agriculture and Rural Hanoi, Vietnam Not specified Link*
same. Arbitration agreement referred to FIDIC.
Development,
UNCITRAL arbitration
Mohamed Client- Investor-state arbitration regarding the establishment of a touristic investment project in Libya. Lease of land. Assualts on plaintiff's workers who were asked by defendant
Abdulmohsen Al- Consultant to stop the works until the matter was resolved. Defendant proposed an alternative plot of land for project execution but plaintiff refused this proposal and chose to wait
2013 Kharafi & Sons Co. v. Cairo, Egypt Model Services for the resoluion of the problems on the initial site. The tribunal found among other things that the lease was an investment project governed by the Unified Agreement for Link*
Libya and others, ad Agreement, 3rd the Investment of Arab Capital in the Arab States, that defendants committed various contractual and delictual faults, and ordered the defendants to pay plaintiff
hoc arbitration Edition, 1998 significant damages in compensation.

Howard Kennedy LLP, May 2024 41

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Karachi Development
Company v IM
Technologies Pakistan High Court of 20.2, 20.3, 20.4, The applicant challenged a reference to arbitration under clause 20.6, arguing that the arbitration agreement did not apply to a dispute regarding termination of the
2013 Not specified Link
& another, Judicial Sindh at Karachi 20.6, 20.7 contract or relating to the post-termination phase of the contract, and that instead the the courts of Pakistan had jurisdiction. The court dismissed the application.
Miscellaneous No. 12
of 2013

This matter concerned the Defendant’s application for stay of proceedings pending adjudication. The dispute related to the scope of a consultancy agreement, which
contained conflicting dispute resolution clauses.
The project was for the construction of two hospitals in the Turks and Caicos Islands. In August 2006 the defendant engaged the plaintiff to provide preliminary drawings
for the scheme. On 11 January 2008 the defendant entered into a subcontract (with the main contractor) to design, and construct works for the two hospitals. In April 2008
the plaintiff and defendant signed a consultancy agreement. The plaintiff claimed for certain additional works at the request of the defendant, which claim it split between
SAM ABBAS and Amended FIDIC
fees due for services rendered prior to 11 January 2008 and those post 11 January 2008. The defendant maintained that the consultancy agreement contained an exclusive
Anthony Hayes Conditions of
adjudication clause and applied for a stay for adjudication. The plaintiff argued that the adjudication clause was not incorporated into the consultancy agreement, and in
trading as AH Design High Court of subcontract for
the event that it was, the clause would only apply to the fees post 11 January 2008.
2012 v Rotary Justice in Northern works of civil 19 Link
Three questions considered by the court: (1) was the subcontract’s adjudication clause incorporated into the consultancy agreement; (2) was it enforceable; and (3)
(International) Ireland engineering
whether or not to order a stay of proceedings. The court held that the consultancy agreement was the governing contract, of which the incorporated terms from the
Limited [2012] NIQB construction first
subcontract became part. The court noted that clause 12: contained a mandatory provision for reference to adjudication; stated that the reference to adjudication shall be
41 (28 May 2012) edition 1994
on the same basis as SC 19 of the subcontract; and stated that the adjudicator’s decision is final. The court held that this suggested that the dispute resolution process
concludes with adjudication and was not intended to extend to arbitration and confirmed that the subcontract was incorporated into the consultancy agreement and thus
enforceable. As regards to a stay of proceedings, on the basis that the issue as to whether or not the consultancy agreement covered both parts of the fees, was still
undecided and in the event that the plaintiff was correct in that regard, that part of the claim would not be subject to the consultancy agreement and could not be stayed.
On this basis, and the defendant’s failure to refer to the matter for adjudication, the court refused the application for a stay.
National High Ways
Appeal regarding an Arbitral Award in which the Respondent claimed reimbursement of excise duty due to subsequent change in legislation
Authority of India v
The contract provided that rates and prices quoted were subject to adjustment during the performance of the contract in accordance with Sub-clause 70. The prevailing
Afcons Infrastructure
2012 Delhi High Court Not specified 70 Exim Policy at the relevant time of bidding provided that supplies to this work were eligible for classification as “Deemed Exports”, which entitled a refund of the excise Link
Ltd FAO(OS)
duty element. The Exim Policy underwent an amendment and the goods became ineligible to the “deemed export” benefit or facility. Court held that the withdrawal of the
120/2012 [2 July,
“deemed export” facility resulted in a new tax liability, and dismissed the appeal.
2012]
International
Electromechanical
Services Co LLC v (1)
Dubai International Subcontract, back-to-back contracting, whether there was a valid arbitration agreement incorporated into the subcontract. The court found a prima facie case that a valid
Al Fattan Engineering
2012 Financial Centre Red Book 1999 arbitration agreement existed in the subcontract; found that it had jurisdiction to order a stay of proceedings; and that the court should exercise its discretion to stay the Link
LLC and (2) Al Fattan
Courts (DIFC) proceedings.
Properties LLC [2012]
DIFC CFI 004, 14
October 2012

NHAI v. Hindustan
An appeal in which the court examined three issues: i) the extra amount awarded for the making of embankment; ii) the allowing of the claims of the respondent in relation
Construction
to toll tax and service tax on transportation imposed by a subsequent legislation; and iii) the award of compound interest post the award period, on both the principal and
2012 Company Ltd. FAO Delhi High Court Not specified 60 Link
the interest amounts.
(OS) 48/2012 [8
Court set aside the tribunal’s award relating to Dispute No.4, relating to executed work of embankment, while upholding the award in all other respects.
November 2012]
Arbitral tribunal of
the Bulgarian The contract between the parties set a time limit of 28 days for referral of disputes to the Engineer under sub-clause 20.1. The contractor argued that the contractual time
Yellow, First
2012 Bulgarian case Chamber of 3.5; 20.1; 20.4 limit was a waiver of rights and is therefore void under the provisions of Bulgarian law. The arbitral tribunal rejected the contractor's argument and held that the clause Link
Edition, 1999
Commerce and provided for timely referral and consideration of disputes.
Industry
R.A Murray Supreme Court of
First Edition, Although the contract between the parties was based on FIDIC, the issues in this case are not relevant to FIDIC. The case involves removal of an arbitrator as a result of
2012 International Ltd v Judicature of Not specified Link
1999 misconduct.
Brian Goldson Jamaica

Howard Kennedy LLP, May 2024 42

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
15.3; 15.4; 16.3;
ICC Partial Award in An Eastern Yellow, First 16.4; 20.2; 20.3;
2012 The Arbitral Tribunal considered the effect of statute of limitation in relation to claims referred to arbitration. The constitution of the DAB was also considered in this case. Link*
Case 16570 European Capital Edition, 1999 20.4; 20.5; 20.6;
20.7; 20.8
Kmc Construction Ltd,
The income tax Fourth Edition - 20.1;20.2;20.3 -
Hyderabad v The issue in this case is not relevant to FIDIC. The issue in the case is related to sales tax refund. The FIDIC contract that one of the parties had entered into was considered
2012 appellate tribunal, Refer to Refer to Summary Link
Department of by the court and the duty of the Contractor after the handing over of the site was mentioned in passing.
New Delhi, India Summary Note Note
Income Tax

In this matter the Court was asked to consider an application for payment under two Engineer’s Progress Certificates where the Respondent did not dispute the validity of
Esor Africa (Pty) Ltd
South Gauteng the certificates but had presented a counterclaim based on a third Engineer’s Progress Certificate. The Plaintiff disputed the counterclaim but stated that it was agreed the
/Frankl Africa (Pty) 20; 20.4; 20.6;
High Court, Red, First Edition matters in dispute were to be referred to the Dispute Adjudication Board for adjudication and if either party was dissatisfied with the decision to arbitration for final
2012 Ltd Joint Venture v Refer to Summary Link
Johannesburg, 1999 determination.
Bombela Civils Joint Note
South Africa The Court in this instance postponed the Claimant's application pending the finalisation of the proceedings before the Dispute Adjudication Board or Arbitration
Venture (Pty) Ltd
Note: Unreported - This case was also considered in Stefanutti Stocks (Pty) Ltd v S8 Property (Pty) Ltd.

ICC Final Award in An Eastern Red, First 1.2; 20.2; 20.4; The parties' poor drafting of the DAB agreement led to disputes as to whether the DAB was ad hoc or permanent and consequently a dispute on Dispute Adjudication
2012 Link*
Case 18096 European Capital Edition, 1999 20.6 Agreement's termination.

Conditions of
In this case the Court considered what the consequences for a party bringing legal proceedings where they have disregarded a dispute resolution scheme provided for in
Sub-contract for
the contract as between the parties in dispute.
Abbas & Hayes (t/a A Works of Civil No clauses cited -
High Court, The Court stated that where the scheme is sufficiently certain so as to be enforceable it may result in a stay of Court proceedings. Further, that where provision for a
2012 H Design) v Rotary Engineering Refer to Summary Link
Northern Ireland scheme has been made in the contract the burden in on the litigating party to show why the agreed method for dispute resolution should not operate.
(International) Ltd Construction, Note
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
First Edition,
civil engineering construction 1st Edition (1994). The Court also considered how to interpret the clause where the drafting had been imperfect.
1994

Issue: adjustment of BoQ rates under the contract.

Clause 59(4)(b) required only that the quantities were substantially different before they acted as a trigger for the engineer to embark on a rate review. The contractor had
In the High Court
General performed substantially greater quantities of a particular work item than estimated and the dispute over his entitlement to payment was referred to arbitration.
Maeda Corp v. of the Hong Kong
Conditions of The contractor regarded the employer’s BoQ estimates as a considerable underestimate and took advantage by transferring into his tender rate for that item an additional
Government of Special
2012 Contract for Civil 59(4) preliminary sum that had originally formed part of another unconnected rate (and was set to make a large ‘windfall’ profit). Link
HKSAR (CACV Administrative
Engineering The arbitrator held that the preliminary sum transferred across should be excluded as that made the contract rate for the item unreasonable and inapplicable. His view was
230/2011) Region, Court of
Works (1999) that in cases where a rate was a composite one involving a number of activities, he could adopt such a position. The Court of Appeal endorsed the arbitrator’s findings. This
Appeal
was a long running case. Other decisions in the case appear elsewhere in this table.
Further reading: https://www.corbett.co.uk/boq-rates-neither-immutable-nor-sacrosanct/

Contract for the design, procurement and construction of a power plant near Kabul in Afghanistan. The claimant was the prime contrator. The respondent was the
The Louis Berger subcontractor. The subcontract was terminated. Each party maintained that it properly terminated the Subcontract on the basis of breach by the other. There were
Group Inc. / Black & disputes about payment and performance. The prime contractor's claims included: extra costs to complete the work; additional insurance costs; liquidated damages. The
Veatch Special subcontractor's counterclaims included: payment for work done and equipment retained by the prime contractor and a performance bond it claimed was wrongfully
2012 Projects Corp. Joint Paris, France Red Book 1999 15.2 collected. The central question was whether the prime contrator was in material breach of the subcontract at the date the subcontractor gave notice of breach and Link*
Venture v. Symbion withdrawal from site. If the prime contractor was not in material breach then the subcontractor had no right to abandon the works and the prime contractor was then
Power LLC, ICC Case justified in terminating on the grounds of abandonment. Tribunal among other things: found that the subcontractor was entitled to terminate for material breach by the
No. 16383/VRO prime contractor; found that the subcontractor was responsible for delay and so awarded liquidated damages to the prime contractor; awarded sums to the subcontractor
for work performance and the performance bond (etc).

Howard Kennedy LLP, May 2024 43

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
(1) Kenneth David
Rohan (2) Andrew
James Mostyn Pugh
(3) Michelle Gemma
Dubai International FIDIC 4th Ed.
Mostyn Pugh (4) Sale & purchase of flats. Termination of agreement and restitution of sums. Delayed completion under an underlying FIDIC contract terminated due to delay. Defects and
2012 Financial Centre 1987 (reprinted 12, 13 Link
Stuart James Cox v EOT.
Courts (DIFC) 1992)
Daman Real Estate
Capital Partners
Limited [2012] DIFC
CFI 025

In this matter the court had to decide whether or not a DAB decision was final and binding and could be considered an arbitral award, enforceable under the New York
Convention, which states that recognition and enforcement of a foreign award may be refused if the award has yet to become finding and binding.
SYIVT AS v SC A. Satu High Court of
A DAB decision was issued, which was followed by a notice of dissatisfaction within the 28 days’ period. The claimant submitted an application to the court for recognition
2012 Mare 4613/2012 Civil Cessation and FIDIC Red 20.1 - 20.7 Link
of an arbitral award and approval of enforcement under the New York Convention. Whilst this was pending, the matter as also referred to ICC arbitration under Sub-Clause
Section Justice of Romania
20.7. The court held the DAB decision did not fulfil the conditions of admissibility under the New York Convention on the basis that the decision was issued during
proceedings preliminary to the arbitration, and that preliminary process was not finalised in light of the respondent’s notice of dissatisfaction.

Romania High The Contractor was found to be in breach of the general and particular conditions in sub-clause 4.4, by sub-contracting the works to 14 sub-contractors (13 of whose value
ICCJ Decision No. Yellow, First
2011 court of Cassation 1.4; 4.4; did not exceed 1% of the total contract value) without the engineer's prior and express consent. Also, the fact that another language than that specified in sub-clause 1.4 Link
2473/2011 Edition, 1991
and Justice was used, did not give rise to the documents being null and invalid.
The parties to the contract had a dispute regarding the reference date for determining the RON to EURO exchange rate. This dispute was settled by arbitration. However,
one of the 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)
ICCJ Decision No. High Court, Red, Yellow and
2011 13.8; 20;20.2; 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 Link
287/2011 Romania Green Book
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.
ATA Construction,
Industrial & Trading
Company v Red, Fourth 67 - Refer to the The issue between the parties were whether the final award extinguished the Arbitration Agreement under Jordanian Law, whether the Arbitration Agreement can be
2011 ICSID Link
Hashemite Kingdom Edition, 1987 Summary Note restored and whether the application meets the requirements for an ICSIC Article 50 post-award interpretation.
of Jordan (7 March
2011)
ATA Construction,
Industrial & Trading
Not Specified -
Company v Red, Fourth This case involved a conditional application for partial annulment of 18.05.2010 Award granted if the Tribunal were to adopt ATA's interpretation. Following the rejection of
2011 ICSID Refer to the Link
Hashemite Kingdom Edition, 1987 ATA's interpretation, the Applicant sought to terminate the proceeding and claimed all the costs in connection with it.
Summary Note
of Jordan (11 July
2011)
Amira Furnishing
Company Ltd v New This case is not directly relevant to FIDIC. The Claimant in this case clamed £10k as a contingency sum for unknown works. Reference was made to FIDIC Building Contract
2011 High Court, Fiji Not Specified Not Specified Link
India Assurance which sets a percentage figure as construction contingency for unforeseen emergencies or design shortfalls identified after construction of a project.
Company Limited

Red, First Red 1999: 20;

ICC Final Award in An Eastern Edition, 1999 20.1; 20.4; 20.5; Enforcement of DAB decision without consideration of merits: the Arbitral Tribunal held that non-payment amounts to breach of contract and a new dispute. Referring non-
2011 Link*
Case 16948 European Capital and Red, Fourth 20.6; 20.7. Red payment back to the DAB for a Decision made the Employer liable for damages for breach of contract plus interest.
Edition 1987 1987: 67

Persero 1 - DAB enforcement - Court of Appeal upheld High Court's decision which set aside the final award on the basis that the merits were not before the tribunal. They
CRW Joint Operation
Court of Appeal, Red, First 20; 20.4; 20.5; went on to state that as long as the merits are placed before the arbitral tribunal, in principle, an interim or partial award enforcing a binding DAB's decision should be
2011 v PT Perusahaan Gas Link
Singapore Edition, 1999 20.6; 20.7; 20.8 possible. Note: This case makes reference to the Interim Award in ICC Case 10619 in relation to clause 67.1.
Negara (Persero) TBK
[2011] SGCA 33

Howard Kennedy LLP, May 2024 44

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

This was an application to the court under Section 34 of the Indian Arbitration and Conciliation Act 1996 seeking the setting aside of an arbitral award on the grounds of
State of West Bengal illegality. The petitioner argued that the contractual procedure for claims was not followed but the court rejected this argument because sub-clause 53.4 of the contract
v. Afcon High Court, Red, Fourth 53; 53.1; 53.2; 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
2011 Link
Infrastructure Ltd Calcutta Edition, 1987 53.3; 53.4; 67.3 dismissed the application to set aside.
[January 2011]
State of West Bengal v Afcons Interrelated Case 2 of 4 – Decision 06/01/2011 re Tender Notice S-11

Progressive
Construction Ltd v Red, Fourth 6.1(b); 9.5.1; This case involved an application for injunction restraining the respondent from invoking the performance bank guarantee. The right of the employer to expel the
2011 High Court, Andhra Link
Louis Berger Group Edition 9.5.4; 10.1; 63.1 contractor from the site was also considered in this case.
Inc. & Others

Uniphone
Telecommunications Court of Appeal, Orange, First Refer to Summary The court considered the default in payment under the deed of assignment executed by the Respondent.
2011 Link
Berhad V Bridgecon Malaysia Edition, 1995 Note Note: The Deed of Assignment refers to the FIDIC terms.
Engineering
Tanzania National
As a result of disputes between the parties, the Contractor commenced proceedings seeking to restrain the Employer from making demands on the guarantees executed or
Roads Agency v Not Specified -
Court of Appeal at Red, Fourth repossessing any assets and machinery. The Employer also commenced proceedings seeking to enforce the guarantees and recover damages for breach of contract. The
2011 Kundan Singh Refer to Summary Link
Mombasa edition court held that the suit commenced by the employer raised similar issues as the first suit and therefore the proceedings must be stayed pending the ruling of the superior
Construction Limited Note
court in the first suit. The employer appealed against the decision arguing that the issues under the two proceedings are different.
and Another

This was an appeal to the High Court at Calcutta. The appellants argued that an arbitral award, which had been upheld by a trial judge, was opposed to public policy being
State of West Bengal,
in contravention of Sections 26(3) and 31(3) of the Indian Arbitration and Conciliation Act 1996 as the Arbitral Tribunal had failed to adjudicate the dispute in terms of the
Public Works (Roads) High Court,
53.1; 53.2; 53.3; FIDIC contract between the parties. The High Court found that the point for consideration in the appeal was whether the arbitral tribunal and consequently the trial judge
Department v. Calcutta - Appeal Red, Fourth
2011 53.4; 53.5; 60; committed any error in law while upholding the claim partially. The High Court reviewed each of the heads of claim and, apart from one claim, upheld the claims awarded Link
AFCONS against Judgement Edition, 1987
67.3 by the Arbitral Tribunal and the trial judge.
Infrastructure Ltd on 06.01.2011
[September 2011]
State of West Bengal v Afcons Interrelated Case 3 of 4 – Decision 22/09/2011 re Tender Notice S-11

Swiss Civil Court First Civil Law Red, First Edition The court examined whether pre-arbitral steps were mandatory before commencing arbitration and considered the possible consequences of failure to follow the multi-
2011 18.3; 20 Link
decision 4A_46/2011 Court, Switzerland 1999 tier dispute resolution procedure.

(Please refer to Russian Case - 1) The Employer claimed damages as a result of alleged defects and delay in completion of the works caused by the Contractor and refused
Court of Cassation, Red, First to pay the 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
2010 Russian case - 2 11 Link
Russia Edition, 1999 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)

There was a dispute between the Contractor and the Sub-contractor regarding the sums due 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
Court of Appeal,
2010 Russian case - 3 Not Specified Not Specified 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 Link
Russia
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)

Red, First
Red: 20.4; 20.5;
ICC Partial Award in An Eastern Edition, 1999 DAB decisions are binding and must be given effect to by the parties but an Arbitrator cannot grant a partial award determining the matter with finality because the nature
2010 20.6; 20.7; 20.8. Link*
Case 16119 European Capital and Gold, First of a DAB decision is temporary.
Gold: 20.8; 20.9
Edition, 2008
1.5; 1.6; 20; 20.2;
ICC Partial Award in London, United Yellow, First 20.3; 20.3; 20.4; The meaning of DAB “in place” in Sub-Clause 20.8 is validly appointed; those words do not require that the dispute adjudication agreement between the parties of the DAB
2010 Link*
Case 16262 Kingdom Edition, 1999 20.5; 20.6; 20.7; has been executed.
20.8

Howard Kennedy LLP, May 2024 45

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
National Highways In considering an Arbitral Tribunal's award under Section 34 of the Arbitration & Conciliation Act of India 1996, the High Court of Delhi found that a sub-clause, which
Authority of India v allowed the Engineer to correct ambiguities or errors if the Contractor discovered any in the Drawings or other Contract Documents, permitted the Engineer and the
High Court of Refer to Summary
2010 Unitech-NCC Joint Not Specified Arbitrator to correct a sub-clause that contained an error that resulted in an inconsistency with other contract provisions. Link
Delhi, India Note
Venture (8 March 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
2010) for differences in interpretation. See below for appeal.
National Highways
Authority of India v The High Court of Delhi dismissed the appeal of National Highways Authority of India v Unitech-NCC Joint Venture (8 March 2010) on the same terms as the appealed
High Court of Refer to Summary
2010 Unitech-NCC Joint Not Specified judgement. Link
Delhi, India Note
Venture (30 August Note: Go to 8 March 2010 judgement above for more details.
2010)
National Highways
On Appeal, the High Court of Delhi held that the Employer was entitled to retain and use the Contractor’s Equipment brought to site after the Contractor had been expelled
Authority of India v Red, Fourth 1.1; 54.1; 61;
High Court of under an amended FIDIC 4th Sub-clause 63.1. It was held that the Contract made no distinction between equipment owned by the Contractor and equipment hired or
2010 M/S You One Maharia Edition, Revised 61.1; 63.1, Link
Delhi, India otherwise not owned by it.
JV (21 September 1992 63.1(4)
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)

Claimant gave only notice of claim under 20.1. No material was provided in support of claim, despite the Engineer's request. Accordingly, there was no Engineer's
determination. The Claimant requested a joint appointment of a DAB which went unanswered. The Claimant referred the dispute to arbitration and Respondent contested
ICC Interim Award in Red, First 20.1; 20.2; 20.4; 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
2010 Paris, France Link*
Case 16155 Edition, 1999 20.6; 20.8 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.

5.2; 9; 48.1; 48.2;

ICC Final Award in An Eastern Red, Fourth
2010 49; 49.1; 50; 60.3; Release of retention after a 12-month defects period was found to be compatible with a statutory 5-year warranty period. Link*
Case 15789 European Capital Edition, 1987
64.1

Application to the High Court of Calcutta pursuant to section 34 of the Indian Arbitration and Conciliation Act 1996 for the setting aside of an arbitral award. Requirement
State Of West Bengal in section 28(3) of that Act for the arbitral tribunal to decide in accordance with the terms of the contract and in section 31(3) of that Act for arbitral tribunal to give
High Court, Red, Fourth 53.1; 53.2; 53.3;
2010 vs Afcons reasons for its award. Failure by the arbitral tribunal to give reasons. Award set aside. Link
Calcutta Edition, 1987 53.4; 53.5; 67.3
Infrastructure Ltd
State of West Bengal v Afcons Interrelated Case 1 of 4 – Decision 07/07/2010 re Tender Notice S-10.

7.2; 51; 52; 52.1;

Claim time-barred under 4th Edition clause 67.1 where Engineer gave no decision within 84 days and notice of intention to arbitrate was received a week later than 70 day
ICC Final Award in An Eastern Red, Fourth 52.2; 53; 53.1;
2010 limit. Another claim for a variation was also time-barred when the 14-day notice period under clause 52.2 and the 28-day notice period under clause 53 were both missed. Link*
Case 15282 European Capital Edition, 1987 53.3; 53.4; 67;
A notice posted on the last day of a time-limit and received after the deadline was held to be too late.
67.1
National Highways
High Court of Red, Fourth 1.1(f)(v); 54.1; 61; During the course of the project, it was found that the bank guarantees provided by the contractor were forged and fabricated. As a result, the employer terminated the
2010 Authority v M/S You Link
Delhi, India Edition, 1992 61.1; 63.1(4) contract and sought to exercise its rights to seize equipment that was brought to the site by the contractor.
One Maharia
Red, First
Red (1999): 20;
PT Perusahaan Gas Edition, 1999.
20.4; 20.5; 20.6; Persero 1 - DAB enforcement - High Court set aside a final ICC award enforcing a binding but not final DAB decision on the basis that the failure to pay did not go to the DAB
Negara (Persero) TBK High Court, Red, Fourth
2010 20.7; 20.8. Red prior to arbitration. Link*
v CRW Joint Singapore Edition. Gold,
(1987): 67 Gold [2010] SGHC 202
Operation First Edition,
(2008): 20.9
2008.

Cybarco PLC v Cyprus

Supreme Court, Red, First The case concerned contradicting terms between the letter of tender under which the contractor was responsible for payment of stamp duty and the clause 1.6 of the
2010 (Case Nos. 543/2008 1.6 Link
Cyprus Edition, 1999 contract where the employer is responsible.
and 544/2008)

Howard Kennedy LLP, May 2024 46

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Following a court order requiring a revision of the tender awarding criteria and the technical and financial proposals, the Respondent invited bidders to submit new
tenders for works which overlapped with works under the first tender. It was assumed that the second public procurement was organised to circumvent the consequences
Romania High
ICCJ Decision No. Yellow, First 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
2010 court of Cassation 3.1; 3.2; Link
3639/2010 Edition 1999 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
and Justice
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.

20; 20.2; 20.3; The Arbitral Tribunal considered the law governing the dispute resolution clause where the parties had not chosen an applicable law to the arbitration agreement but had
ICC Interim Award in Silver, First
2010 Paris, France 20.4; 20.5; 20.6; agreed on the seat of arbitration. Link*
Case 16083 Edition, 1999
20.7; 20.8 Also, the tribunal found that the parties’ conduct confirmed that neither party considered DAB to be an essential step prior to referring disputes to arbitration.
Francistown City
The High Court of Red, Fourth The Court considered an application to set aside an arbitrator’s decision on the basis that he dealt with matters not submitted to him and went beyond the parameters of
2010 Council v Vlug and 63; 63.1 Link
Botswana Edition, 1987 the parties submission in making his decision. The material contract was subject to the Red Book FIDIC 4th Edition (1987).
Another
1.1.5.6; 13.1;
ICC Final Award in Orange, First Final payment certificate “agreed” by Employer’s Representative did not bind the Employer as the ER had no authority to reach the agreement. Findings in relation to
2010 Singapore 13.3; 13.8; 13.11; Link*
Case 16205 Edition, 1995 Employer’s liability for taxes, financing charges, overheads and exchange rate losses.
13.13; 13.16
ATA Construction,
Industrial & Trading
Company v Red, Fourth
2010 ICSID 67 An ICSID arbitration concerning the validity of the annulment by Jordanian court of an Arbitral Award rendered in favour of the Claimant. Link
Hashemite Kingdom Edition, 1987
of Jordan (18 May
2010)
The court considered clause 20.4 and 20.6 and the meaning of the word 'dispute'.
Mersing Construction
The Contract did not incorporate the arbitration clause in its conditions as only the Appendix to the Contract was produced in evidence. This Appendix only referred to DAB
& Engineering Sdn Unknown FIDIC
High Court, and not to arbitration.
2010 Bhd v Kejuruteraan type contract - 20.4; 20.6
Malaysia Held: There was no agreement to arbitrate as clause 20.4 only referred to the DAB. The court could not make a decision based on a conjecture or whether it was the
Bintai Kin denko Sdn 1999?
parties' intention that the whole provision on resolving disputes be based on the FIDIC Conditions. There was no provision for Clause 20 to apply and the only reference to
Bhd
FIDIC was a clause providing that the procedure for the DAB be in accordance with FIDIC.
M/S Spencon (K) Ltd
v. Ministry of Local
Ad hoc arbitration,
2010 Government with Not specified Payment delays, interest and VAT. Outstanding amounts, interest and VAT awarded. Link*
seat not specified
Mombasa Municipal
Council

Partial Award from arbitral tribunal dealing with (1) the jurisdiction of the arbitral tribunal and (2) whether the DAB's decisions are valid and binding. In relation to (1) the
tribunal found that the Employer was entitled to submit certain claims directly to arbitration without first notifying such claims or following the pre-arbitral procedures in
the contract (including the DAB) because such claims related to the extra cost of completing works following a termination and the DAB had already considered and ruled
on the appropriateness of such termination. Accordingly the tribunal found that it had jurisdiction in respect of such claims. In relation to (2) the tribunal noted that the
2.5; 3.5; 15.2;
parties did not enter into the DAB agreement within 42 days after the commencement date as provided for in clause 20.2. Respondent sought Claimant's agreement to the
ICC Partial Award in City in Eastern Red Book, First 15.3; 15.4; 20.2;
2010 appointment of a DAB but Claimant never answered this request. Respondent ultimately applied to the president of FIDIC for such appointment, pursuant to clause 20.3, Link*
Case No. 15956 Europe Edition, 1999 20.3; 20.4; 20.5;
and the sole DAB member that was appointed proceeded to issue two decisions. Claimant argued that these decisions were not binding because the DAB was improperly
20.6; 20.7; 20.8
appointed. The parties did not agree on the interpretation of the DAB-related provisions in the contract (the general conditions had been amended by particular
conditions). The tribunal considered the contractual provisions and the facts and found that the appointment of the DAB was validly made. The tribunal further found that
decisions of the DAB should be complied with by the parties, subject to the tribunal retaining the power to 'open up, review and revise' such decisions as per clause 20.6.
As a result, the tribunal ordered Claimant to comply with the DAB decisions, reserving the merits of the case.

Procedural order. Request by Claimant for interim measure namely the suspension, until the ultimate determination of the dispute on the merits, of points in the Partial
ICC Procedural Order City in Eastern Red Book, First
2010 20 Award rendered by the same tribunal for (1) the return of performance security to Respondent, and (2) the payment of the sum established by the DAB to Respondent. The Link*
in Case No. 15956 Europe Edition, 1999
tribunal considered whether the relief sought was urgent in order to avoid serious and irreparable harm to Claimant and found that it was not. Request denied.

Red, Fourth
2009 Bayindir v Pakistan ICSID 63.3; 67.1; 67.4 The ICSID tribunal was constituted to make a decision on jurisdiction. The parties' main dispute involved the termination of the contract. Link*
Edition, 1987

Howard Kennedy LLP, May 2024 47

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The parties failed to appoint a DAB. Following disputes involving payment of outstanding balance, the Claimant sought to commence arbitration (CIAC Arbitration). The
Respondent disputed the jurisdiction of the AT arguing that reference to arbitration was immature because parties failed to comply with sub-clause 20.4. AT rejected the
Hutama-RSEA joint First Edition, Respondent's 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
Supreme Court,
Operations, Inc. v. 1999 - No Book 20.4; 20.5; 20.6; 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
2009 Manila, Republic of Link
Citra Metro Manila specified, similar 20.7; 20.8 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
the Philippines
Tollways Corporation provisions 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.

The High Court of Delhi heard an appeal of a lower court’s judgment regarding objections under s 34 of the Arbitration and Conciliation Act to the award of an Arbitral
National Highways 2.6; 49; 51; 51.1; Tribunal. The originally estimated quantity of a BOQ item had been exceeded by nearly three times. There had been no instruction from the Engineer. The Employer
Authority of India v High Court of Red, Fourth 51.2; 52; 52.1; considered that a variation existed and that under the contractual terms where actual quantities had exceeded the tolerance limits set out in the Contract, the Engineer
2009 Link*
Som Datt Builders & Delhi, India Edition, 1987 52.2; 52.3; 55.1; was entitled to seek renegotiation of the rate for the additional quantities. The Contractor disagreed that there had been a variation and that any re-negotiation was
ORS 55.2; 67; 67.3 required. The arbitral tribunal found for the Contractor. The High Court held that the arbitral tribunal had erred in its findings and the award and the lower court’s order
were both set aside.
National Highways
The High Court of Delhi considered whether the Employer could keep Contractor’s Equipment after termination when such equipment was hired by the Contractor from a
Authority of India v High Court of Red, Fourth
2009 54.1; 60.7; 63.1 third party as opposed to owned by him. The judge held that the third party could approach the Arbitral Tribunal to consider the question. Link
M/S Youone Maharia Delhi, India Edition, 1987
Note: See below for the appeal at National Highways Authority of India v M/S You One Maharia JV (21 September 2010).
JV (1 July 2009)

Three questions posed by the Arbitrator were decided:

National Insurance 2.5; 11.10; 13.5;
1. Contemporary records means in clause 20.1, records produced at the time of the event giving rise to the claim whether by or for the contractor or the employer?
Property High Court, 16.4; 19.6; 20.1;
Red, First 2. Where there are no contemporary records the claim fails?
2009 Development v NH Trinidad and 53 of FIDIC Red Link
Edition, 1999 3. The independent quantity surveyor’s term of reference override the express provisions of the clause 20.1 and permit the contractor to advance its claims without
International Tobago Book Fourth
contemporary records?
(Caribbean) Limited Edition
Note: Under sub-clause 20.1 the contractor is obliged to keep records which would enable the engineer to investigate and substantiate the contractor's claims.

National Highways This is a decision regarding a petition under Section 34 of the Indian Arbitration and Conciliation Act 1996 seeking the setting aside of an arbitral award which related to the
Authority of India v. rehabilitation of a road in India. The judge reviewed the arbitral tribunal's decisions on each issue, including amounts payable for varied work under Clause 51.1, 51.2, 52.1
High Court of 51; 51.1; 51.2; 52;
2009 M/S ITD Cementation Not specified and 52.2 of the FIDIC general conditions, payment due on account for a re-design, payment due on account of change in thickness of a layer of carriageway, reimbursement Link
Delhi, India 52.1; 52.2
India LTD (Formerly 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
M/S Skansk) upheld them (with one exception where the judge ordered a reduced amount payable). Note: Provides guidance on rate of interest.

Severe civil disturbances in Albania in 1987. Contractor's work site was overrun and ransacked by looters. Each of its two contracts contained a provision to the effect that
the Albanian Government's Road Directorate accepted the risk of losses due to civil disturbance. Contractor sought USD4.8m. A special commission was created by the
Pantechniki S.A.
Road Directorate to value the claim which it did at USD1.8m. Contractor said it accepted that amount in the interest of good relations. That amount was not paid.
Contractors & FIDIC 4th Ed.
Contractor commenced court proceedings in Albania but the Court of Appeal ruled that the relevant contractual provision was a nullity and Contractor abandoned its
2009 Engineers v. Republic ICSID 1987 reprinted 20.4, 11.1 Link*
appeal to the Supreme Court because it believed that it could not get a fair disposition of its claim there. In 2007, Contractor commenced an ICSID arbitration invoking the
of Albania, ICSID Case in 1992
protection of the Albania-Greece BIT. Tribunal considered legal questions: was there an 'investment'; did Contractor's actions before the Albanian courts foreclose
No. ARB/07/21
arbitration under the BIT; was there a denial of justice; did Albania violate the duty of full protection and security; or the duty to accord fair and equitable treatment.
Tribunal found for Albania; the claim did not fail for lack of inherent validity but faltered because the treaty was unavailable to Contractor in the circumstances.

Ijm-Scl Jv v M/S 2.6, 42.1, 52,

High Court of
National Highway FIDIC 4th edition 52.1, 58, 58.3,
2009 Judicature at Construction of a bypass. Challenges to two arbitral awards. The court found that part of the awards violiated public policy and so partially set them aside. Link
Authority, 15 1987 60.1, 67.1, 67.3,
Madras
November 2009 82
Contractor was granted extension of time as a result of unforeseeable ground conditions that were not identified in the tender documents or the drawings provided by the
Court of Supreme Red, First Employer, as well as delay in the payment by the Employer and suspension of the works. There was no DAB appointed by the parties in this case and the dispute was
2009 Russian case - 1 8.4; 20.1; 20.4 Link
Supervision, Russia Edition, 1999 referred to the court which eventually ruled in favour of the Contractor. (Lucas Klee, International Construction Contract Law, pp 186-189, Claims in the St Petersburg flood
protection barrier construction by Aleksei Kuzmin)

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Firma ELSIDI v
Department of Water The Supreme Court
Red, First
2008 and Sewage - Civil and of the Republic of 20.6 Both parties to the contract were Albanian entities. The question was whether arbitration under sub-clause 20.6 was the appropriate forum for resolving the disputes. Link
Edition, 1999
Criminal Decisions Albania
October 2008

National Insurance
Property
High Court of The Arbitrator had decided that the Contractor was entitled to terminate the contract as the Employer was in breach of sub-clause 2.4 (Financial Arrangements). The
Development Red, First
2008 Trinidad and 2.4; 15.2; 16.1 Arbitrator had decided that the Employer had not satisfied the evidential threshold required by 2.4 and the fact that the Employer was wealthy was not adequate for the Link
Company Ltd v NH Edition, 1999
Tobago purpose of sub-clause 2.4. The court did not find any error in the finding of the arbitrator and refused to interfere with the award.
International
(Caribbean)Limited

Following the Employer's failure to pay the amount certified in the final payment certificate, the Contractor sought summary judgement. The Employer argued that: 1)
Parties must refer to arbitration before referring to a court of law, 2) The Contractor has been overpaid and has overcharged the Employer in respect of BoQs, and 3) the
Construction 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
Red, First
Associates (Pty) Ltd v High Court of 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
2008 Edition, 1999 - 14 - Amended Link
CS Group of Swaziland 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,
Amended
Companies (Pty) Ltd 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.

Biffa Waste Services

Technology and
Ltd & Anor v
Construction Red, First Note: The Contract in dispute is not a FIDIC contract but provides useful guidance on the phrase “which sum shall be the only monies due from the Contractor for such
2008 Maschinenfabrik 8.7 Link
Court, England and Edition, 1999 Default".
Ernst Hese GmbH &
Wales
Ors

National Highways
Not Specified - Not Specified -
Authority of India v High Court of The question was whether it would be the Employer or the Contractor who would be responsible for the cess imposed by the government. The contract between the
2008 Refer to the Refer to the Link
M/S Afcons Delhi, India parties was not based on FIDIC. However, reference was made to FIDIC which allows for, inter alia, reimbursement of increase in the works tax.
Summary Note Summary Note
Infrastructure Limited

Red, First
Red 1999: 3.4; 20;
Edition, 1999 The Arbitral Tribunal decided that referring a dispute to adjudication is a mandatory step before referring to arbitration. It was also found that submission of an unsigned
ICC Interim Award in 20.2; 20.4; 20.6;
2008 Zurich, Switzerland and Red, Fourth draft of a formal letter is insufficient to inform intention to invoke the DAB unless the draft is later confirmed to be the final version. The arbitration proceedings were Link*
Case 14431 20.8. Red, 1992:
Edition, Revised stayed to allow parties to refer their dispute to adjudication.
67; 67.1; 67.3
1992

The Court was asked to consider enforceability of clauses in an Engineering, Procurement and Construction Contract which provided for liquidated damages for delay. The
Braes of Doune Wind Technology and
Claimant (Employer) and Respondent (Contractor) had contracted for the construction of 36 wind turbine generators in Stirling in Scotland. The Claimant contended that
Farm (Scotland) Ltd v Construction Silver, First 1.4.1; 8.4; 8.7;
2008 the juridical seat of the arbitrator was England whereas the Respondent contended it was Scotland. The Claimant sought leave to appeal an award made by an arbitrator Link
Alfred McAlpine Court, England and Edition,1999 20.2; 20.2.2
whilst the Respondent 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
Business Services Ltd Wales
made.

Nivani Ltd v China Not Specified- Not Specified -

National Court,
2007 Jiangsu International Refer to Refer to the Note: Although the dispute is over a sub-contract, reference was made to variations under the main contract. Link
Papua New Guinea
(PNG) Ltd Summary Note Summary Note

National Highways 51.1; 51.2; 52.1;

High Court of Red Book,
2007 Authority v Som Datt 52.2; 52.3; 55.1; The issue was whether the material exceeding the Bo should be paid at contract rates or at a newly negotiated rate. Link
Delhi, India Fourth Edition
Builders 60
Jacob Juma v Not Specified - Not Specified -
The High Court of
2007 Commissioner of Refer to Refer to Summary This case is not directly relevant to FIDIC. It only provides a brief explanation of idle time for Plant, Machinery and Equipment, as well as labour. Link
Kenya, Nairobi
Police Summary Note Note

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The income tax

Ahmedabad Vadodara Red Book, Although mainly about tax, this case provides brief guidance regarding contractor's obligation after the project is fully operational. The court in this case decided that the
2007 appellate tribunal, 48.1 Link
v Income Tax officer Fourth Edition contractor's obligation extended to a period even after the project is fully operational.
New Delhi, India

General Earthmovers
Limited v Estate
High Court, 3.1; 14; 14.1;
Management And First Edition, Application to set aside a default judgement re non-payment of 2 IPCs. Judgement was set aside because there was a realistic prospect of success and that the dispute
2007 Trinidad and 14.3; 14.6; 14.7; Link
Business 1999 should have been referred to the DAB under clause 20.
Tobago 16.1; 20; 20.4
Development
Company

Avenge (Africa)
Limited (formerly
Grinaker- LTA
Limited) and Others v
High Court, Natal, Silver, First This decision relates to an application to compel the production of documents relating to a bid for the construction and maintenance of the King Shaka International
2007 Dube Tradeport 4.12; 8.4; 11.10 Link
South Africa Edition 1999 airport. There is only a passing mention of FIDIC contract terms.
(Association
Incorporated Under
Section 21) and
Others

Knowman Enterprises The Sub-contractor was not granted an injunction against termination of a Sub-contract with the Main Contractor on the grounds that, contrary to the Sub-contractor's
High Court,
Ltd v China Jiangsu Red, Fourth argument, it was not a nominated Sub-contractor whose termination would lie within the power of the Employer (meaning that the power to terminate remained on the
2007 Republic of 4.1; 59.1 Link
International Edition, 1987 Main Contractor). Judge also found that the Sub-contractor had other remedies available such as requesting an order compelling the Main Contractor to pay, requesting
Botswana
Botswana the nullification of the documents or to sue for the value of the works done so far.

Mirant Asia-Pacific
Construction (Hong
In the High Court
Kong) Ltd v Ove Arup Dispute over damages caused by defective boiler foundations at a power station claimed by the Contractor against the Engineer. The court rejected all claims, except for
of Justice Queens
and Partners the cost of remedial works of the Unit 1 Boiler foundations.
2007 Bench Division, Not specified Link
International Ltd & The key consideration was the critical path analysis (court provide useful guidance on the use of cpa on construction projects), and whether the boiler foundations were on
Technology and
Anor [2007] EWHC the critical path. This was a long running case. Other decisions in the case appear elsewhere in this table. The judgment here related to the level of damages.
Construction Court
918 (TCC) (20 April
2007)

Kalyan Constructions Conditions of

Subcontract for the widening and strengthening of a road. Nominated subcontractor for 50% of the works. Application seeking the appointment of an arbitrator in
v Kayson Subcontract for
Andhra Pradesh substitution of an earlier arbitrator appointment which was terminated. Whether the arbitration agreement was for an 'international commercial arbitration'. Whether the
2007 Constructions Works of Civil 67 Link*
High Court court had the necessary jurisdiction. Consideration of the Aribtration and Conciliation Action 1996. The court found that it did not have jurisdiction to appoint the arbitrator
Company, 31 August Engineering
and the application was dismissed.
2007 Construction

Dubai Court of
Dubai Court of
2007 Cassation Case No. Not specified 67.1 Conditions precedent to arbitration mandatory. Link*
Cassation
140/2007

You One Engineering

The Supreme Court Red, Fourth Following the allegedly wrongful termination of the Contract, the Employer commenced arbitration proceedings under the amended clause 67.3 of the contract. The
2006 v National Highways 67.3 - Amended Link
of India Edition appointed arbitrators failed to agree on the presiding arbitrator.
Authority

Hindustan
Construction Co Ltd v High Court of Red, Fourth The Contractor had to furnish one performance and 17 retention money guarantees. The guarantees were to be returned to the Contractor 12 months after completion.
2006 10; 44; 60; 67; 70 Link
Satluj Jal Vidyut Delhi, India Edition The Employer arbitrarily and illegally and without giving any notice to the Contractor invoked all guarantees.
Nigam Ltd

Howard Kennedy LLP, May 2024 50

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link
Concerning the conflict between a FIDIC arbitration clause and a bespoke contractual arbitration clause, of which there were two competing versions, set out in separate
Attorney General for documents but which formed part of the same agreement. The agreement provided that in the case of “ambiguities or discrepancies” precedence was to be given to the
Jamaica v bespoke provisions.
Supreme Court, Red, Fourth
2006 Construction 2; 3; 67; 67.3 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 Link
Jamaica Edition, 1987
Developers 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
Associated Ltd 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”.

ICC Procedural Order Not Specified -

2006 of September 2006 in Zurich, Switzerland Not Specified Refer to the Note: FIDIC was the adjudicator appointing authority. Link*
ICC Case 14079 Summary Note
Governing law was that of a West African state. Re Clause 52.3 for a Contract Price adjustment where additions and deductions taken together exceed 15% of the Effective
Contract Price, construing the Clause, the arbitral tribunal held that when the actual quantities resulting are less than the original estimate, the purpose is to compensate
the Contractor for under-recovery of overhead. The Contractor must however demonstrate that it was prevented from recovering the jobsite and general overhead costs
52.1; 52.2; 52.3;
ICC Final Award in A West African Red, Fourth included in the BOQ 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
2006 58.1; 60; 60.10; Link*
Case 12048 Capital Edition, 1987 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.
67; 67.1; 67.3; 70
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
620 Collins Street Pty Not Specified - Not Specified -
Supreme Court,
2006 Ltd v Abigroup Refer to Refer to Summary Note: The contract in dispute is not a FIDIC Contract. FIDIC was used as an example of extension of time. Link
Victoria, Australia
Contractors Pty Ltd Summary Note Note

Conditions of
Subcontract for
ICC Final Award in Works of Civil Case about wrongful termination for default under FIDIC Subcontract 1994. Held that although subcontractor was liable for delay, defects and other breaches, they were
2005 Bern, Switzerland 18; 18.1; 18.3 Link*
Case 10951 Engineering not enough to justify termination.
Construction, 1st
edition 1994
20.2; 20.3; 20.4; The Arbitral Tribunal addressed costs following alleged failure by a state employer to expropriate and evacuate land for the construction of a highway, whether war-related
ICC Final Award in An Eastern Red, Fourth
2005 42.1; 42.2; 44.1; events constituted a "special risk" under clause 65.2 and whether the claimant contractor should be compensated under clause 65.5 for increased costs arising from these Link*
Case 12654 European Capital Edition, 1987
65; 65.2; 65.5 events, and finally whether certain taxes and excises should be reimbursed.
The Arbitral Tribunal was asked to determine whether (1a) a variation omitting work gave rise 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
ICC Partial Award in Geneva, Red, Fourth 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
2005 51; 63 Link*
Case 13258 Switzerland Edition, 1987 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.

Lesotho Highlands
Development House of Lords, Red, Fourth The erroneous exercise of an available power cannot by itself amount to an excess of power. A mere error of law will not amount to an excess of power under section
2005 60.1 Link
Authority v Impregilo United Kingdom Edition, 1987 68(2)(b).
SpA and others

Bayindir v Pakistan
Red, Fourth The judgement contains the decision on AT's jurisdiction. It was considered, inter alia, whether the Claimant's Treaty Claims in reality Contract Claims, whether the Treaty
2005 (Decision on ICSID 53; 67.1 Link*
Edition, 1987 Claims were sufficiently substantiated for jurisdictional purposes, and whether the tribunal should have stayed the proceedings.
Jurisdiction)

The Respondent Contractor was granted extension of time in return for an undertaking that it would not claim any compensation. After completion, the Respondent issued
State of Orissa and a notice claiming compensation on the grounds that the appellants had failed to comply with their obligations and alleging that the drawings and the survey results were
Red, Fourth 42.1; 42.2; 53.1;
2005 Ors v Larsen and Orissa High Court incorrect. The parties referred to arbitration under clause 67.3. The award issued by the arbitrator which awarded sums to the Respondent was challenged on the grounds Link
Edition 53.2; 53.3; 67.3
Toubro Ltd 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.

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Ove Arup & Partners

International Ltd &
No clauses cited -
ANR v Mirant Asia- Court of Appeal, White, Second
2005 Refer to Summary Note: Dispute over breach of ground investigation agreement which incorporated the FIDIC terms. Link
Pacific Construction England & Wales Edition, 1991
Note
(Hong Kong) Ltd &
ANR
5; 5.2; 5.2.4; 8.1;
The Court declined to set aside an ICC Arbitration Award under the Arbitration Act No 5 of 1939 (Trinidad and Tobago) on the basis that there was no technical misconduct
11; 11.1; 12; 12.1;
or decision in excess of jurisdiction on the arbitrator’s part. The ICC arbitration had considered whether the Engineer was independent and partial as required by the FIDIC
12.2; 20.4; 39;
ICS (Grenada) Limited High Court, 4th edition, if not whether or not the relevant Engineer’s decisions should be reviewed, whether alleged defects were the result of poor workmanship by NHIC or faulty
Red, Fourth 39.1; 39.2; 51.2;
2004 v NH International Trinidad and design supplied by ICS, and whether NHIC’s resulting failure to comply with the Engineer’s instructions under Clause 39.1 was a valid cause for ICS’s subsequent Link
Edition 1987 52.3; 53; 53.1;
(Caribbean) Limited Tobago termination of the contract under Clause 63.1.
53.2; 53.3; 53.4;
The Court also found that there were no errors on the face of the award.
63; 63.1; 66;
NHIC’s attempt to oust the jurisdiction of the Court to review the Award (under Article 28(6) of the ICC Rules) was denied.
67;67.3
Technology and
Mirant-Asia Pacific No Clauses cited -
Construction No Book
2004 Ltd & Anor v Oapil & Refer to Summary Note: No clauses cited and no FIDIC books referred to; only 'FIDIC' terms are mentioned. Link
Court, England and Specified
Anor Note
Wales
An arbitration was commenced and the Claimant sought to restrain the arbitration proceedings on the basis of illegality under the contract. The contract was a FIDIC 4th
State v Barclay Bros National Court, Red, Fourth Edition and the reference to arbitration was made under Clause 67. The court ordered that the Respondent by itself, its servants or agents or otherwise howsoever, be
2004 67 Link
(PNG) Ltd Papua New Guinea Edition 1987 restrained from taking any further step in or for the purposes of an arbitration (as amended) commenced by the Respondent in the International Chamber of Commerce
International Court of Arbitration at Paris.

The case dealt with tortious liability and a limitation clause in a main contract which sought to exclude liability for indirect or consequential losses. There was no contract
Conditions of
1; 1.1.12; 8.1; between the operator of a power plant and the contractor who was constructing it. The operator brought proceedings against the contractor (Rolls Royce). Rolls Royce
Contract for
Rolls-Royce New 19.1; 30.1; 30.2; claimed that there was a duty owed to the operator and sought to rely on limitation of liability clauses in its contract with its Employer. Rolls Royce sought to argue that it
Court of Appeal, Electrical and
2004 Zealand Ltd v Carter 30.3; 30.4; 30.5; could have no greater liability to a third party for defects in the works than it would have to its own employer. The Court of Appeal found that while loss to the operator Link
New Zealand Mechanical
Holt Harvey Ltd 42; 42.1; 42.2; may have been foreseeable as a consequence of any negligence by the contractor, the relevant contractual matrix within which any duty of care arose precluded a
Works, third
42.4; 42.6 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
edition, 1987
them to their bargains. In these circumstances, it was not fair, just and reasonable to impose such a duty.

The Engineer issued a decision under Clause 67 accepting in part the Claimant’s claim for payment. The decision became final and binding but went unpaid. In the
arbitration, the Respondent argued that it was entitled to resist payment of the Claimant’s claims, principally because of the Claimant’s alleged liability for counterclaims,
47; 53.1; 60.1; thus entitling the Respondent to a set-off under Clause 60.2. Held: By the tribunal’s First Partial Award it had no jurisdiction over the alleged counterclaims. Further,
ICC Second Partial A West African Red, Fourth
2004 60.2; 60.10; 67; 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 Link*
Award in Case 12048 Capital Edition, 1987
67.1; 67.4 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.

CPconstruction
Pioneers
Baugesellschaft
United States
Anstalt v. Petition for confirmation of ICC Second Partial Final Arbitration Award. Contract for the construction and rehabilitation of a road in Ghana. ICC tribunal ordered Ghana to
District Court for
2004 Government of the Not specified 67 pay Claimant certain sums as also determined in an Engineer's Decision which had become final and binding. Pursuant to the New York Convention and the Federal Link
the District of
Republic of Ghana, Arbitration Act, the court found that the petitioner was entitled to confirmation of the Second Final Partial Award.
Columbia
Ministry of Roads and
Transport, ICC Case
No. 12048/DB/EC

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Respondent Employer, a State entity, challenged the Arbitral Tribunal’s jurisdiction and applied to the local courts for an order revoking the tribunal’s power to hear
the dispute, 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
ICC First Partial Award A West African Red, Fourth 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
2003 67 Link*
in Case 12048 Capital Edition, 1987 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.

A.G. Falkland Islands v

Red, Fourth The Court was asked to consider FIDIC Clause 53 and to provide interpretation of what constitutes a “contemporary record”. The Court specifically considered whether
Gordon Forbes Supreme Court, 53; 53.1; 53.2;
2003 Edition, Revised witness statements can be introduced in evidence to supplement contemporaneous records. The Court held that in the absence of contemporaneous records to support a Link
Construction Falkland Islands 53.3; 53.4
1992 claim the claim will fail or that part of the claim which is unsupported will fail.
(Falklands) No.2
Mabey and Johnson
Limited v High Court, Red, Fourth
2003 No clause cited Note: The issues in the case related to insurance cover and claims and not to a FIDIC contract per se. Link
Ecclesiastical England and Wales Edition 1987
Insurance office Plc
Mirant Asia-Pacific
Construction (Hong
Technology and
Kong) Ltd and Sual
Construction White, Second 17; 18; 18.1; 21;
2003 Construction Note: The central issue between the parties was whether the agreements in dispute incorporated the FIDIC terms. Link
Court, England and Edition, 1991 22; 31; 32; 41; 43
Corporation v Ove
Wales
Arup & Partners &
Another
Ove Arup & Partners
Appeal to CA from TCC decision on various preliminary issues. The central issue was whether the relevant agreements incorporated the terms of the 1991 FIDIC
& Another v Mirant
Court of Appeal, White, Second 5; 16; 17; 18; 21; Client/Consultant Model Services Agreement. Were the formalities envisaged in FIDIC of completing the blanks in the schedules and both parties signing the agreement a
2003 Asia-Pacific Link
England and Wales Edition, 1991 31; 36; 43; 44; necessary pre-requisite to the contract being formed?(answer - no). Consideration of the features necessary for the formation of a binding contract and rehearsal of the
Construction (Hong
relevant case law.
Kong) Ltd & Another
SCJ Decision No. Supreme Court of Red, Fourth The Respondent disputed the amount claimed by the Claimant in respect of interest and the amount certified in IPCs. The requirements set forth by sub-clause 53.5 were
2003 53.5 Link
3827/2002 Justice, Romania Edition, 1987 considered by the court.

1.5; 1.13.4;
1.19.1; 3.3.3;
3.3.4; 3.3.5; 3.3.6;
Red, Fourth 6.4; 12.2; 14; 44;
ICC Interim Award in London, United The arbitral tribunal considered the notice provisions in sub-clauses 44.2 and 53.1, the claims for extension of time, the claim for additional costs, and the interest on the
2003 Edition, Revised 44.1; 44.2; 51; Link*
Case 10847 Kingdom sums awarded.
1992 51.1; 53; 53.1;
53.2; 53.3; 53.4;
60.8; 67.3; 69;
69.1; 69.4

Howard Kennedy LLP, May 2024 53

Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The Appellant challenged an Award rendered pursuant a Bilateral Investment Treaty (BIT) between the Netherlands and the Czech Republic on the following grounds: 1)
One of the Arbitrators had been excluded from the deliberations; 2) The AT failed to apply the law it was obliged to, according to the BIT; 3) The AT was lacking jurisdiction
and, according to lis pendens and res judicata , the AT had exceeded its mandate; 4) The AT applied the joint tortfeasors principle, not submitted by the parties; 5) The AT
determined the amount of damages in violation of the parties' instructions to limit the dispute to the existence of liability for damage; 6) The AT applied the provisions of
the BIT not covered by the Arbitration Agreement; and 7) the Award rendered violated public policy.
Held : The Court rejected the Appeal and did not grant a leave for review of its judgment by the Supreme Court of Sweden on the following grounds:
1) The Chairman of the AT was responsible to issue the Award without delay and had given the arbitrators sufficient time to submit comments. The arbitrator who allegedly
was excluded from the deliberations received all essential communications between the other arbitrators and therefore could not be deemed excluded from the
deliberations.
Not cited, but 1.4
Svea Court of Unknown FIDIC 2) In principle the AT exceeds its mandate when it applies a different law in violation with the choice-of-law clause. As the AT's interpretation of the wording in the clause
2003 Case No. T 8735-01 and 20.6 Link
Appeal type contract allowed the AT to consider other sources of law, they were relevant to the dispute.
applicable
3) A fundamental condition for lis pendens and res judicata is party identity. Here, the identity of a minority shareholder did not equate to the identity of the company.
4) The AT did not apply the 'joint tortfeasors' concept. The State may be held liable for damages suffered by an investor, notwithstanding that the State is not alone in
causing the damage.
5) The Appellant waived its right to challenge the mandate of the AT.
6) The Appellant should have raised its objections as to the new claim during the arbitration proceedings.
7) In accordance with section 43, second paragraph of the Arbitration Act, the Court of Appeal's decision regarding a claim against an arbitration award pursuant to sections
33 and 34 of the same Act may not be appealed as during the proceeding it failed to object that the claims fell outside of the BIT. However, in accordance with the same
paragraph, the Court of Appeal may allow an appeal of the decision where it is of importance for the development of case law that the appeal be reviewed by the Supreme
Court.
The Arbitral Tribunal found that the respondent employer, who had not objected within the 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.
ICC Final Award in Red, Fourth 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
2002 Paris, France 11; 67; 67.1; 67.3 Link*
Case 10619 Edition, 1987 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.

English substantive law. Employer wished to set off delay damages against Contractor's claim for unpaid certified sums. As contemplated by English case of Gilbert-Ash
ICC Interim Award in London, United Yellow, Test 2.5; 11.3; 14.6;
2002 (Northern) Ltd -v- Modern Engineering (Bristol) Ltd [1974] AC 689, clear and express language is required to exclude a right of set-off. Nothing in the TEST edition of the Link*
Case 11813 Kingdom Edition, 1998 14.7; 20.4; 20.6
FIDIC Yellow Book 1998 contains express language to this effect. Set-off therefore permitted as a defence to the claim.

ICC Final Award in White, Second Whether the FIDIC White Book was incorporated into the agreement between Client and Consultant including the one year limitation for claims; and whether such
2002 Berlin, Germany 17; 18.1 Link*
Case 11039 Edition, 1991 limitation clause was valid under German law. Held: yes and yes.
ICC Final Award in Red, Fourth 1; 1.1; 2.6; 39;
2002 Caribbean The Arbitral Tribunal considered the identity and designation of Engineer and whether or not the contract had been lawfully terminated. Link*
Case 10892 Edition, 1987 39.1; 63; 63.1

Partial Award Issue 1: Clause 11 refers to "investigations undertaken relevant to the Works" and the material regarding which unforeseen ground conditions were said to
be encountered 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
ICC Partial and Final Wellington, New Red, Third
2002 11; 12; 39; 65 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 Link*
Awards in Case 11499 Zealand Edition, 1977
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.

Motherwell Bridge
Construction Limited
Technology and Application of
(Trading as If the parties had agreed to conduct their relations within the spirit of FIDIC terms but not to be bound by the strict terms, it was appropriate, as regards extensions of
Construction FIDIC terms,
2002 Motherwell Storage Not Specified time, not to require the Subcontractor to follow the FIDIC procedural time limits. The Subcontractor was entitled to acceleration costs incurred as a result of trying to finish Link*
Court, England and 1.1;11.2;23;26.1;
Tanks) v Micafil on time when delay was caused by the Contractor.
Wales 26.2;31
Vakuumtechnik,
Micafil AG

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Royal Brompton Technology and

Not Specified - Not Specified -
Hospital National Construction
2002 Refer to Refer to Summary Note: The contract in dispute is not a FIDIC contract but there is reference to FIDIC's definition of project management. Link
Health Service Trust v Court, England and
Summary Note Note
Hammond & Ors Wales
Hochtief
Aktiengesellschaft
Vorm. Gebr.
Helfmann and
Consolidated Partial Award on Tranche 1 relating to various claims for additional payment and extensions of time arising in respect of works at an airport. The contract included many
2002 Paris, France Not specified Link
Contractors Company standard FIDIC clauses but was not a 'straightforward' FIDIC contract.
S.A.L. v. the Republic
of Lebanon
(UNCITRAL
arbitration)
The claimant contractor applied for an interim award declaring (1) that the respondent employer must give effect to an Engineer’s decision made pursuant to Sub-Clause
ICC Interim Award in Red, Fourth
2001 Paris, France 2.1; 67; 67.1; 67.4 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 Link*
Case 10619 Edition, 1987
the respondent pursuant to the final award. The arbitral tribunal granted the relief sought.
Salini Costruttori
S.P.A. v. The Federal
Democratic Republic
Preliminary award on a) suspension of arbitration proceedings as a consequence of decisions taken by the Federal Supreme Court and Federal First Instance Court of
of Ethiopia, Addis
2001 Addis Ababa FIDIC 4th, 1987 67 Ethiopia; b) whether the Tribunal had jurisdiction over the proceedings notwithstanding an objection raised by the Respondent. Tribunal held that the arbitral proceedings Link
Ababa Water and
should not be suspended and that it had jurisdiction.
Sewerage Authority,
ICC Case No.
10623/AER/ACS

ICC Final Award in Kuala Lumpur, Red, Fourth

2000 58.3 The Arbitral Tribunal did not have power to draw adverse inferences merely because the claimants' QS was not qualified nor called to give evidence. Link*
Case 10166 Malaysia Edition 1987
Technology and
Hellmuth, Obata v Construction White, Second
2000 No clauses cited The claim pleaded in contract and alternatively in quasi-contract. Link
Geoffrey King Court, England and Edition, 1991
Wales
No clauses cited -
ICC Final Award in
1999 Columbo, Sri Lanka Not Specified Refer to Summary The case involved a dispute over interest rates and payment of interest. Link*
Case 10079
Note
ICC Partial Award in Red, Second The Arbitral Tribunal considered whether the request for arbitration under clause 67 was admissible, whether the termination of contract was valid and whether the
1998 Paris, France 1; 5.1; 60; 67; 69 Link*
Case 9202 Edition, 1969 administrative contract was valid under local law.
Respondent requested a declaration that a clause in a sub-contract agreement making a general incorporation of terms from the main contract did not include the
incorporation of the sub-contract’s arbitration clause. The court established that the test looks at the language of the words used followed by in which they are and the
Technology and
Cegelec Projects Ltd v nature of the transaction. The court held that the dispute resolution clause was not incorporated, in part, because the sub-contract already had a dispute resolution clause
Construction Refer to Refer to Summary
1998 Pirelli Construction and a comparison between the two proved they were incompatible. The court added that attempting to equate a complex conciliation procedure with amicable settlement Link
Court, England and Summary Note Note
Company Ltd without an express statement would be artificial and removed from reality.
Wales
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.
Bouygues SA & Anor v
Shanghai Links High Court, Hong Red, Fourth 1.1(3)(i); 65.8; ‘Contract Price’ does not relate to sums payable to the Contractor pursuant to Sub-Clause 69.3 [Payment on Termination].
1998 Link
Executive Community Kong Edition, 1987 69.3 Note: See below for the appeal at Bouygues SA & Anor v Shanghai Links Executive Community Ltd (2 July 1998).
Ltd (4 June 1998)

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

‘Contract Price’ refers to sums payable to the Contractor for the performance of their obligations, i.e., execution and completion of the work, under the contract and not
Bouygues SA & Anor v the sums a Contractor claims, which are payable to it upon termination regardless of whether or not such sums refer to work performed and certified prior to termination.
Shanghai Links Court of Appeal, Red, Fourth 1.1(3)(i); 65.8; Payments upon termination 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
1998 Link
Executive Community Hong Kong Edition, 1987 69.3 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
Ltd (2 July 1998) 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).
13.1; 20; 20.2;
20.3; 20.4; 21.4;
ICC Final Award in London, United Red, Fourth 52; 54.2; 60.3; The Contractor's country was invaded and war ensued. As a result of looting by the invading forces, the mobilised Equipment for shipment to site was lost. Under Clause
1997 Link*
Case 8677 Kingdom Edition, 1987 60.6; 62.1; 65.2; 65.3, the Contractor's claim for Loss of Contractor's Equipment was allowed.
65.3; 65.5; 65.6;
67; 67.1; 67.4
Gammon Constano JV Failure of the Employer to comply with the conditions precedent to the Contractor's performance , such as handing over the site, were briefly considered. In this case, the
High Court of Red, Fourth
1997 v National Highways 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 Link
Delhi, India Edition
Authority JV) and the Employer.
In a dispute on a contract, which was not a FIDIC form, the claimant argued that the principles contained in FIDIC had become so widely used as to form a trade usage. The
ICC Final Award in Red, Fourth 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
1997 Madrid, Spain 20.4; 65.5 Link*
Case 8873 Edition 1987 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.

The applicants in this case challenge the decision of Board of the Cyprus Ports Authority by which the tender was allegedly awarded to the wrong tenderer. The tender
George W. documents consisted of, inter alia, the General Conditions of FIDIC 4th with Conditions of Particular Application. The applicants included a VAT of 5% (the rate applicable 30
Supreme Court of Red, Fourth
1996 Zachariadis Ltd v Port 70 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 Link
Cyprus Edition
Authority of Cyprus 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.

ICC Final Award in The Hague, Red, Third 67; 67.1; FIDIC Under Clause 67, to validly submit a dispute to arbitration, a mere notice of the intention to arbitrate is sufficient; an actual beginning of the arbitration procedure is not
1996 Link*
Case 7641 Netherlands Edition, 1977 4th: 67; 67.4 required.
ICC Final Award in Red, Third
1996 Tunisia 67 The arbitral tribunal found that it did not have jurisdiction to enforce/consider the final and binding decision of the engineer. Link*
Case 7910 Edition, 1977
Clause 28 of Sub-contract stated that Sub-contractor shall comply with Main Contract so far as it applies to Sub-contract works and "are not repugnant to or inconsistent
ICC Partial Award in Red, Third 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
1995 Nairobi, Kenya 4; 67; 69 Link*
Case 7423 Edition, 1977 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.
See partial award on jurisdiction above. Swiss substantive law governed a sub-contract derived from FIDIC Conditions (2nd edition 1969). It contained a pay when paid
clause. The 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
ICC Final Award in Red, Second
1993 Not Specified No clauses cited 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 Link*
Case 6611 Edition, 1969
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.

The Arbitral Tribunal principally considered a contractor's claims under the "2nd edition". The Arbitral Tribunal considered the ways in which a contractor can recover
ICC Final Award in Red, Second
1993 Not Specified 44; 51; 60 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 Link*
Case 5948 Edition, 1969
this case in 1991 above.
The tribunal considered whether a “dispute” existed under the Contract which could be referred to the Engineer. It found that, as at a particular date, the Contractor had
ICC Final Award in Red, Second
1992 Not Specified 44; 52; 67 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 Link*
Case 6535 Edition, 1969
Engineer under Clause 67.

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

See also the final award below. A bespoke sub-contract governed by Swiss law incorporated 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
ICC Partial Award in Red, Second
1992 Zurich, Switzerland 8; 39; 67 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. Link*
Case 6611 Edition, 1969
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.

ICC Final Award in London, United Red, Edition Not 1) "but for" test used to determine the jurisdiction of the tribunal. 2) punitive damages are not allowed for breach of contract (subject to exceptions) 3) punitive damages
1991 67; 69 Link*
Case 6216 Kingdom Specified can be awarded for claims in tort.
1) What is required under FIDIC 2nd Edition for valid termination under Clause 63? The AT considered that this is a forfeiture clause and therefore to be strictly construed.
ICC Partial Award in Red, Second 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
1991 Not Specified 1; 63; 67 Link*
Case 5948 Edition, 1969 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.
ICC Final Award in Red, Third The tribunal considered whether the Claimant was entitled to recover interest or other financial costs under the Egyptian Code. Passing reference was made to the cost of
1991 Not Specified 30 Link*
Case 5029 Edition, 1977 financing the execution of the work under the FIDIC 3rd edition.
ICC Final Award in Red, Third 11; 12; 41; 52; 55; Original contract and pre-contract documents declared that material was sand, broken shells, silt and clay. Claimant was entitled to assume material was as described and,
1990 Not Specified Link*
Case 5597 Edition, 1977 56 if different, compensation would be due under Contract, where it meets condition which it could not reasonably have foreseen.
ICC Final Award in Red, Third
1990 Not Specified 51; 52; 67; 93 A plain letter by the Architect is not a Clause 67 decision. The Arbitrators conclude therefore that the Architect gave no decision on the disputes referred to him. Link*
Case 6326 Edition, 1977

FIDIC Standard Form 3rd Edition, with Clause 67 amended and re-numbered. The project was completed in an Arab country. The arbitral tribunal found that the condition
ICC Partial Award in Geneva, Red, Third precedent for 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
1990 67 Link*
Cases 6276 and 6277 Switzerland Edition, 1977 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.

ICC Final Award in Red, Second

1990 Not Specified 1; 67 Non resort to the Engineer as provided in Clause 67 prior to instituting arbitral proceedings is not a basis for asserting the arbitral tribunal's lack of jurisdiction. Link*
Case 6230 Edition, 1969

The Arbitral Tribunal considered whether or not the contractor could recover global sums for 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
ICC Final Award in Red, Third 6; 44; 51; 52; 60; 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
1989 Not Specified Link*
Case 5634 Edition, 1977 67 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.

ICC Partial Award in Red, Third

1989 Not Specified 67 The Arbitral Tribunal considered whether a submission was correctly made to the engineer under clause 67. Link*
Case 6238 Edition, 1977

A dispute followed the Contractor's termination of contract with a public entity in an African state where the arbitrators assumed the law to be the same as English
ICC Interim Award in Red, Third 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
1989 Not Specified 1; 67; 69 Link*
Case 6216 Edition, 1977 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.

ICC Interim Award in Red, Second

1989 Not Specified 67 The Arbitral Tribunal considered consolidation of arbitration under the sub-contract and the arbitration under the main contract. Link*
Case 5898 Edition, 1969
The contractor challenged the Architect’s Clause 67 decision with a notice of arbitration 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
ICC Second Partial Red, Third
1988 Not Specified 67; 68 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. Link*
Award in Case 5634 Edition, 1977
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.
Simaan General
Court of Appeal, Red, Fourth The court found that the nominated supplier could not have assumed a direct responsibility for the quality of the goods and therefore, the economic loss suffered by the
1988 Contracting Company No clauses cited Link
England and Wales Edition, 1987 main contractor was irrecoverable.
v Pilkington Glass Ltd

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

Insurance Co of the
State of Pennsylvania Not Specified - Not Specified -
The Supreme
1988 v Grand Union Refer to the Refer to the Although the case itself is on insurance, and the construction contract in question was not a FIDIC contract, it provided for a 12-month period for FIDIC maintenance. Link
Court, Hong Kong
Insurance Co Ltd and Summary Note Summary Note
Another

41; 63; 2.6 of The contract incorporated the FIDIC 2nd edition Conditions. Clause 63 does not specify the time within which the employer should act after receiving the engineer’s
Mvita Construction
Tanzania, Court of Red, Second FIDIC Red Book certificate of default. The court of appeal held that the employer will lose his rights if he does not give notice within a reasonable time after the engineer’s certificate. The
1988 Co v Tanzania Link*
Appeal Edition, 1969 Fourth Edition reasonableness of the time, however, only arises, however if during the period there was no continuing breach by the contractor. The judge did not however determine
Harbours Authority
1987 whether, a rectification of the breach following a termination notice within a reasonable period precludes continued exercise of the power of forfeiture.

Pacific Associates Inc

Court of Appeal, Red, Second 11; 12; 46; 56; 60; The Engineer owed the Contractor no duty of care in certifying or in making decisions under clause 67. There had been no voluntary assumption of responsibility by the
1988 and Another v Link*
England and Wales Edition, 1969 67 Engineer relied upon by the Contractor sufficient to give rise to a liability to the Contractor for economic loss.
BAXTER and Others
The Arbitral Tribunal considered what was required under Clause 67 of the "Third Book" and found that (a) if the Engineer fails to issue a decision on a dispute referred to
ICC First Partial Award Red, Third 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
1987 Not Specified 66; 67 Link*
in Case 5634 Edition, 1977 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.

The Arbitrator considered whether the wording of Clause 67 (i.e., that the Engineer's decision is final and binding unless a "claim to arbitration" has been communicated to
ICC Partial Award in Red, Third 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
1987 Not Specified 67 Link*
Case 5600 Edition, 1977 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.

Impresa Castelli
Construzioni Edilizie
S.P.A v. State of
FIDIC 2nd Ed. Claims related to the BoQ, an increase in fuel and bitumen prices and reimbursement of costs, expenses and loss. The arbitral tribunal appointed an expert to report to it
1987 Kuwait - the Ministry Paris, France 20.1, 52, 67 Link*
1969 on technical matters. The arbitral tribunal found for the Claimant on most of the claims albeit in lower amounts than claimed.
of Public Works, ICC
Case No.
5403/RP/BGD

A public works contract was financed by the European Development Fund (EDF) through the European Commission (EC). Invitations to tender were based on FIDIC's
CMC Cooperativa "Notes on Documents for Civil Engineering Contracts " which contained Instructions to Tenderers whereby they were required to demonstrate experience and technical and
muratori e cementisti financial qualifications for the project. One of the issues was whether the Employer's (not the EC's) own post-tender investigations and requests for clarifications of a
and others v European Court of Refer to Refer to Summary tenderer's offer were compatible with internationally accepted standards for an award procedure and in particular whether they were compatible with Clause 12 of the
1985 Link
Commission of the Justice, Europe Summary Note Note 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
European 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.
Communities 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'.

Queen's Bench Preliminary issue to determine proper law in FCEC subcontract where subcontract was silent as to proper law. Main contract was FIDIC 2nd which provided the proper law
JMJ Contractors Ltd v Red, Second
1985 Division, England 5.1 to be Iraqi law. Held that the proper law of the contract was the law of Iraq because the subcontract had to operate in conjunction with the main contract and the main Link*
Marples Ridgway Ltd Edition,1969
and Wales contract was governed by the law of Iraq. Conflict of laws. A FCEC subcontract is compatible with a FIDIC 2nd edition construction contract.

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Year Case Name Jurisdiction FIDIC Books Clauses Cited Summary Link

The contract was in the standard form of the Public Works Department of the Hong Kong Government, incorporating provisions of the RIBA JCT standard form (1963
edition) and of the FIDIC and ICE standard forms.
The dispute was whether on the true construction of the contract an excess of executed over-billed quantities was a variation.
The Contract provided for a tunnel to be lined with any one of six forms of permanent lining, the precise form to be determined at the Engineers' option during the course
Mitsui Construction Not a FIDIC
of the works as and when the geological characteristics of the strata through which the tunnel was driven became known. The BoQ contained estimates of the lengths over
Co v A-G 1984 WL Court of Appeal, Contract - Refer
1984 Not specified which each form of lining would have to be used. In this case the estimates proved to be inaccurate by considerable margins. Link*
283535 (CA), [1985] CA to Summary
The Claimant contended that it was unreasonable to apply the rates for the estimated quantities to the rates for the actual (As-Built) quantities and that the latter should
HKLY 99 26 BLR 113 Note
be higher rates to be determined upon the basis that the actual quantities constituted a variation.
Held: Allowing the Respondent's appeal that on the true construction of the contract mere differences in quantities from those billed as estimated did not constitute a
variation since the Claimant had undertaken to construct the scope at the option of the Engineer, at the rates contained in the BoQ. When the Engineer had exercised that
option he had simply required the Claimant to make good that obligation and had not varied the scope it in any way

Grinaker Construction
(Transvaal) Pty v Supreme Court, Red, Third Variations clause similar to cl.51 of FIDIC Red Book 3rd Edition. Held that a mere change in quantities did not amount to a variation. Donaldson J in the English case of
1982 51; 51.2 Link*
Transvaal Provincial South Africa edition, 1977 Crosby v Portland UDC (1967) had come to the opposite conclusion.
Administration

The Corporation of
Trustees of the Order
Not a FIDIC
of the Sisters of Supreme Court, In this case, which did not involve a FIDIC contractual provision, the Court considered the date by which a contractor must submit a claim under the contract for costs,
Contract - Refer No link
1981 Mercy (Qld) v Queensland, 44; 46 losses, damages or delay caused and finds that it is not until the events and circumstances occur (which must include both the act or event from which loss is said to flow
to Summary available
Wormald Australia and the events and circumstances which constitute the loss) that the time for submitting a notice of claim starts to run. Citation: (1981) 5 BCL 77
Note
international (Aust.)
Pty Ltd
International Tank
and Pipe S.A.K. v Court of Appeal, Since there was yet no arbitration in existence by which the validity of the notice could be determined, the court under the governing law, English law, has jurisdiction to
1974 Not specified 67 Link*
Kuwait Aviation England and Wales determine the application.
Fuelling Co. K.S.C.

Date The award in this ICC case no.21477/MHM is not publicly available. It is, however, referred to by the tribunal in the award in ICC case no. 23652/MHM (which appears
ICC Case No. Yellow Book No link
not Romania elsewhere in this table). See para 324(d) of the award in ICC case no.23652/MHM in which the tribunal refers to the award in ICC case no.21477/MHM in the context of
21477/MHM 1999 available
known tribunals and courts within and outside Romania which have acknowledged that a merely binding DAB decision may be 'enforced' in arbitration in a partial final award.

Following Order No. 915/2008, FIDIC Conditions became mandatory for contracts entered into by Romanian authorities for a period of time. As a result, there are a number of cases on FIDIC in Romania (in Romanian). Please click on the link for more Romanian
Link
cases on FIDIC.

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