International Construction Law Review
ENFORCEMENT BY AN ARBITRAL AWARD OF A BINDING BUT NOT FINAL ENGINEER’S OR DAB’S DECISION UNDER THE FIDIC CONDITIONS
CHRISTOPHER R SEPPÄLÄ*
Partner, White & Case LLP, Paris Legal Adviser, FIDIC Contracts Committee
1. Introduction
One of the most important legal issues in relation to international construction contracts in recent years has been how to enforce decisions of the engineer made under clause 67 of the FIDIC Conditions of Contract for Works of Civil Engineering Construction (the “FIDIC Conditions” or “Red Book”), Fourth Edition, 1987, and, since the engineer’s decision procedure was replaced by the Dispute Adjudication Board (“DAB”) in the 1999 edition of the FIDIC Conditions (the “1999 Red Book”), how to enforce decisions of a DAB made under clause 20 of the 1999 Red Book. The Interim Award in Case No 10619 under the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (“ICC”), an award made in Paris in 2001 but an extract of which has been published by the ICC,1 expressly addresses the question of how to enforce decisions of the engineer made under clause 67 of the FIDIC Conditions, Fourth Edition, and, by analogy, how to enforce decisions made by a DAB under clause 20 of the 1999 Red Book.
By that award, a tribunal of three arbitrators held unanimously that decisions of the engineer under clause 67 of the FIDIC Conditions, Fourth Edition, could be enforced by a partial or interim award under the Rules of Arbitration of the ICC (the “ICC Rules”),2 even though a party—in fact, in that case, the same party who was seeking to enforce the decisions—had
* The views expressed herein are those of the author and not necessarily those of any firm or organisation with which he is affiliated. The author is grateful to Matthew Secomb and Luca Kristovic Balzevic, his colleagues at White & Case LLP, Paris, for their comments on drafts of this paper. However, only the author is responsible for its contents.
1 (2008) 19 ICC International Court of Arbitration Bulletin, No 2, 85–90.
2 The ICC Rules do not distinguish between a partial and an interim award. See Art 2 (iii) of the ICC Rules. They mean the same thing and any such award is final as to the issues or matters which it decides.
Pt 4] Enforcement of Decision under FIDIC Conditions
415