International Construction Law Review
ENFORCEABILITY OF “UNTIL AND UNLESS” DAB DECISIONS UNDER THE 1999 FIDIC CONTRACTS
Georgitsa Petkova1
Boyanov & Co
I have said before, that in dealing with adjudications, one must approach the interpretation of any document in a sensible manner and to try to give effect to its intention, whilst bearing in mind the purposes of adjudication and the presumed intentions of the parties to be inferred from the contract, including the Scheme2 as it is part of the contract … and adjudication is fundamentally a contractual form of dispute resolution.3
I. INTRODUCTION
The paper deals with dispute resolution system (“DRS”), elaborated in the General Terms and Conditions (“GTC”) to three of the Standard Form Contracts issued by the International Federation of Consulting Engineers (“FIDIC”) in 1999 – Conditions of Contract for Construction for Building and Engineering Works Design by the Employer (“Red Book”), Conditions of Contract for Plant and Design Build for Electrical and Mechanical Plant, and for Building and Engineering Works Designed by the Contractor (“Yellow Book”) and Conditions of Contract for EPC/Turnkey Projects (“Silver Book”). The three contracts are referred together as “FIDIC 1999 Contracts”. In 2008 FIDIC also issued Design, Build and Operate Contract (“Gold Book”), which is outside the scope of this research.
The 1999 FIDIC Contracts establish an “escalating”4 multi-tier DRS,5 which consist of three stages: resolution of a dispute by a Dispute Adjudication Board (“DAB” or the “Board”) (also referred here as “adjudication” or
1 Senior Associate, Boyanov & Co, Sofia, Bulgaria. This paper was originally submitted for assessment in the University of Melbourne’s Masters of Construction Law Program for the subject “International Construction Law”. All views expressed throughout the paper are of the author.
2 Housing Grants, Construction and Regeneration Act 1996 (UK) c 53.
3 HHJ LLoyd QC in David McLean Housing Contractors Ltd v Swansea Housing Association Ltd [2001] EWHC 830 (TCC); [2002] BLR 125, 130 [8].
4 Ellis Baker et al, FIDIC Contracts: Law and Practice (2009, Informa) 505 [9.2].
5 The Red Book 1999, clause 20. To the extent that they are relevant to this paper, the dispute resolution provisions in the three 1999 FIDIC Contracts are identical with few exception, which I will explicitly discuss. If not expressly stated otherwise throughout this paper, I quote the provisions according to The Red Book 1999.
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