FIDIC for PRACTITIONERS

FIDIC Case Law





State Courts

A number of state courts have had the opportunity to conclude on FIDIC forms of Contract. In particular English, Australian, East Asian, Namibian, Romanian, South African and East African courts have been involved in FIDIC cases.

For instance:

Esor Africa (Pty) Ltd/Frankl Africa (Pty) Ltd JV and Bombela Civils JV (Pty) Ltd, SGHC case no. 12/7442

Tabular Holdings and Esor Africa (see Stefanutti Stocks (Pty) Ltd v. S8 Property (Pty) Ltd (20088/2013) [2013] ZAGPJHC 388 (23 October 2013)

Sedgman South Africa (Pty) Ltd & Others v. Discovery Copper Botswana (Pty) Ltd decided by the Queensland Supreme Court ((2013] QSC 105

Swiss Supreme Court (Bundesgericht (German) -Tribunal Federal (French) - Tribunale Federale (Italian)), 7 July 2014 (file number 4A_124/2014)

PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation [2015] SGCA 30, Court of Appeal Singapore

Doosan Babcock Ltd v. Comercializadora De Equipos Y Materiales MABE Limitada ([2013] EWHC 3010 (TCC)

NH International (Caribbean) Limited (Appellant) v. National Insurance Property Development Company Limited (Respondent) (Trinidad and Tobago) [2015] UKPC 37 (Privy Council Appeal No 0031 of 2014 and 0032 of 2014)

Authority v. Kuchling (A 188/2015) [2016] NAHCMD 32 (22 February 2016), HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Arbitral Tribunals

FIDIC Sub-Clause 20.6 refers to ICC arbitration. Over the years a certain number of ICC awards have been published.

For instance (for sake of clarity: this list is not exhaustive):

ICC case n° 10619 on the enforcement of an Engineer´s Decison given pursuant to Sub-Clause 67.1 FIDIC 1987

ICC case n° 16119 recognizing that the tribunal could issue an interim award in respect of a Parties´ failure to comply with its duty to give effect to a DAB decision subject to review in the final award.

ICC case n° 14431 involving the Red Book contract whereunder the Engineer acted as the DAB. Held that Sub-Clauses 20.2 et seq. are to be regarded as mandatory and that under the specific circumstances the arbitration should be suspended while the parties proceeded with adjudication.
 

ICC case n° 16155 holding by majority under the FIDIC Red Book that the Employer had foregone its right to enforce the DAB appointment because it had ignored the Contractor´s efforts to establish a DAB during the performance of the contract.

ICC case n° 16262 declining under a Yellow Book Contract the tribunal´s jurisdiction because the validly set up DAB was required to decide on the pending claims prior to arbitration as a condition precedent of arbitration.

ICC case n° 16765 holding that Sub-Clauses 20.2 et seq. FIDIC Yellow Book create a multi-tier mechanism to be followed should a dispute arise between the Parties.

Notes

The knowledge of these -and other- decisions is one cornerstone to success. Though such precedents may not constitute a binding authority regarding a particular case it may give users a proper understanding of how the clauses can be understood. Nestor trainers are used to refer to case law, if possible. The trainers are continuously updating their relevant course materials.

Nestor FIDIC Trainers

Nestor FIDIC trainers are FIDIC accredited and under the permanent duty to acquaint themselves with news and developments. In particular they continuously investigate various data bases worldwide in order to become aware of new cases. Particpnats are welcome to share cases with the trainers.

Last Updated on 11.05.2016 13:19:34