At this stage, the lawyers become involved. Among other things, they point out that thecontractor also has entitlements under clauses 1.19 (delayed drawings or instructions) and4.12 (unforeseeable physical conditions). The contractor then puts its claim on thesealternative bases, as well as advancing its claim for a variation.
The employer alleges that the arbitral tribunal has no jurisdiction to deal with thealternative claims brought under clauses 1.19 and 4.12, as they were not put before the
DAB, so are not part of the “dispute” which is permitted to be submitted to arbitration.
What happens here?
The underlying facts are identical for all the alternat
ive claims. Does the employer’s argument
have any merit?Is it fair to expect the contractor to have to think of all possible legal and contractual argumentswhen the dispute is referred to the DAB? If so, would this not defeat the commercial purpose of the tiered dispute resolution provisions, effectively meaning that the contractor would have toretain lawyers or specialist claims advisors during the whole of the works?Surely it must be open to the contractor to refine its entitlements as the dispute progressesthrough the tiers within clause 20?
There is also clause 20.6, which states that “neither party shall be limited in the proceedings
before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its
what does this mean in practice?
Witney Town Council v Beam
Much will of course depend upon the jurisdiction and the governing law. In terms of the positionin England and Wales, some guidance is provided in
. Although a decision in relation to
,the principles are equally applicable to thescenario set out above.In
, Akenhead J held that there was only one dispute between the parties by the time of theservice of the notice of adjudication and only one dispute had been referred to adjudication. He
therefore rejected the challenge made to the validity of the adjudicator’s decision. This decision
very much depended upon the facts of the case, but Akenhead J helpfully reviewed the relevantauthorities and restated the principles that should be applied when considering whether a partyhas attempted to refer more than one dispute to adjudication.
Parallel claims and practicalities
The answer to any such jurisdictional challenges is relatively straightforward
simply ensurethat all parallel or alternative claims are included in the reference to the DAB. However, in thereal commercial world, this is far more easily said than done.
HOW NOT TO INTERPRET THE FIDIC DISPUTES CLAUSE: THE SINGAPORE COURT OF APPEAL JUDGMENT INPERSERO CHRISTOPHER R SEPPÄLÄ * Partner, White & Case LLP, Paris Special Adviser, FIDIC Contracts