Court of Appeal confirms judgment in Obrascon v Gibraltar
The Judgment of Sir Robert Akenhead has been upheld and OHL’s appeals have been dismissed. The judgment was a rare excursion by the TCC into the FIDIC contract and considered unforeseen ground conditions, termination and notice under cl.20.1.
Time’s up for FIDIC’s Pink Book?
Rumour reaches us that the Multilateral Development Banks (MDBs) behind the Pink Book, FIDIC’s harmonised version of the 1999 Red Book, will discontinue the experiment. Should we be sorry to see the back of the Pink Book? We think not.
Time Waits for no Man – So you think the Adjudicator got it wrong? How long do you have to challenge the decision?
How long have you got to challenge the adjudicator’s decision? The English Court of Appeal has decided: 1) the claimant who considers the adjudicator awarded too little must challenge before the original limitation period for his claim expires; and 2) the defendant who considers he paid too much has a new limitation period starting on the day he paid the adjudicator’s decision. Is it unfair that the loser may have years longer than the winner? That question will soon be answered by the Supreme Court of the United Kingdom. Their decision will be of interest to anyone involved with FIDIC DABs anywhere in the world.
Can a party ignore FIDIC’s DAB process and refer its dispute directly to arbitration?
If there is no DAB appointed by parties to a FIDIC 1999 contract, may disputes be referred directly to arbitration under Clause 20.8? This issue has troubled many in the industry – and has now been considered in English and Swiss courts.
Indemnity Costs – you’ll be lucky! Interim Payment of Costs – definitely maybe
Even if a claimant has achieved complete success in litigation, it remains exceptionally difficult to recover legal costs on an indemnity basis, as this case demonstrates. Costs will most likely be recovered on the standard basis – at least in the absence of bad conduct during the litigation itself. This case also indicates that the court will generally limit an interim payment of costs to two-thirds of an approved costs budget.
Light at the end of the tunnel? Gibraltar dispute reviews key FIDIC Yellow Book provisions
As disputes under the FIDIC forms of contract are normally resolved in private Dispute Adjudication Board (“DAB”) proceedings or confidential arbitration proceedings, reported FIDIC cases are rare and often of considerable precdential value either formally or informally. In this article, originally published in The International Construction Law Review, Victoria Tyson considers one such recent decision which was transferred from the Gibraltar courts.
Tunnel Vision: The English High Court Considers the FIDIC Yellow Book
The English Court considers termination and notice provisions under the FIDIC Yellow Book 1999. How are clause 15.1 notices to correct limited? Do termination events have to be repudiations? Is it fatal to serve notice of termination on the ’wrong’ address? When does the 28-day period under clause 20.1 start to run? Mr Justice Akenhead offers guidance to the industry.
Mind The Gap: Analysis of Cases and Principles Concerning the Ability of ICC Arbitral Tribunals to Enforce Binding DAB Decisions Under the 1999 FIDIC Conditions of Contract
Published in International Arbitration Law Review This article is divided into four parts: Part 1 introduces the dispute resolution mechanism adopted by FIDIC in the 1999 Conditions of Contract and explains the gap that exists in the Conditions if a winning party in DAB proceedings wishes to enforce a binding but not final DAB decision: the contract does not expressly provide a mechanism to enforce a binding DAB decision. Part 2 gives consideration to how different arbitral tribunals and courts have approached this gap. In addition to the published awards and decisions of Singapore that have been the subject of
Enforcement of DAB decisions – The legal justification for the ‘enforcement’ of a ‘binding’ DAB decision under the FIDIC 1999 Red Book
A previous article proposed that difficult questions arose from recent cases on the enforceability of Dispute Adjudication Board (DAB) decisions, including the correct basis of the award and the appropriate type of order. This article offers answers to these questions. In the October 2011 edition of CLInt (pp 13–16), this author considered the case law concerning the enforceability of binding DAB decisions and identified, at the conclusion of the article, some of the difficult issues that the cases present. This article explores the answers to three questions (a summary of the answers put forward in this article follows in italics):
Are you in? Or are you out? An analysis of Section 69 of the English Arbitration Act 1996: Appeals on a question of law
Parties should decide early whether to include court jurisdiction for appeals on legal questions in arbitration. Excluding court jurisdiction ensures finality, cost savings, and speed. Including it addresses concerns about arbitrators' legal interpretation abilities. The 1996 Act allows this choice.