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International Construction Arbitration: John Savage Partner and Head of International Arbitration, Asia December 13, 2007
International Construction Arbitration: John Savage Partner and Head of International Arbitration, Asia December 13, 2007
John Savage
Partner and Head of International Arbitration, Asia
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Outline of the Presentation
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I. Introduction to International Construction Arbitration (1)
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I. Introduction to International Construction Arbitration (2)
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II. Issues that Cause International Construction Disputes (1)
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II. Issues that Cause International Construction Disputes (2)
−Changes in law
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III. Typical International Construction Claims (1)
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III. Typical International Construction Claims (2)
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IV. Common Mechanisms for Resolving International Construction Disputes (1)
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IV. Common Mechanisms for Resolving International Construction Disputes (3)
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IV. Common Mechanisms for Resolving International Construction Disputes (4)
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IV. Common Mechanisms for Resolving International Construction Disputes (5)
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IV. Common Mechanisms for Resolving International Construction Disputes (6)
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IV. Common Mechanisms for Resolving International Construction Disputes (7)
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IV. Common Mechanisms for Resolving International Construction Disputes (8)
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IV. Common Mechanisms for Resolving International Construction Disputes (9)
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IV. Common Mechanisms for Resolving International Construction Disputes (10)
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IV. Common Mechanisms for Resolving International Construction Disputes (11)
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IV. Common Mechanisms for Resolving International Construction Disputes (12)
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IV. Common Mechanisms for Resolving International Construction Disputes (13)
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V. Introduction to FIDIC and its Dispute Resolution Provisions (1)
What is FIDIC?
• FIDIC stands for Fédération Internationale des Ingénieurs-Conseils or International
Federation of Consulting Engineers
• Formed in 1913, now a global organisation with members from 70 plus countries
and secretariat based in Switzerland
• FIDIC Forms of Contract are widely used forms (i.e. model contracts) for
engineering, construction, provision of mechanical and electrical works in
international projects
• FIDIC introduced the concept of Dispute Board into its Orange Book contract in
1995
• In November 1996 FIDIC introduced the procedure into Clause 67 of its Red Book
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V. Introduction to FIDIC and its Dispute Resolution Provisions (2)
(Note that FIDIC will be launching its Design, Build and Operate (DBO)
Contract (Gold Book) in mid 2008)
Note that these are just model contracts. The parties are expected to adapt
them to their own projects
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V. Introduction to FIDIC and its Dispute Resolution Provisions (3)
• FIDIC Dispute Resolution provision is set out in Clause 20 of the New Red, New
Yellow and Silver Books
• Approach used by FIDIC is the Dispute Adjudication Board (DAB) which issues a
decision, as opposed to Dispute Review Board which issues a recommendation
• The FIDIC DAB provisions apply whenever a FIDIC contract is used unless parties
delete the provision
• FIDIC DAB decisions are immediately binding and parties are obliged to comply with
the decision pending other stages of the dispute resolution procedure, e.g. revised by
amicable settlement or arbitral award
• New Red (Construction Contract) and New Yellow (Plant and Design-Build Contract)
Books provide for Engineer to act as adjudicator and DAB. Silver Book (EPC
Contract) has no Engineer, so disputes under Silver Book must be handled by DAB.
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V. Introduction to FIDIC and its Dispute Resolution Provisions (4)
FIDIC Procedure for Contractor’s Claims
New Red/Yellow Books Silver Book
“Final Claim” 28 days after end of effects “Final Claim” 28 days after end of effects
Clause 3.5 Clause 3.5 Engineer to“Agree or Determine” Clause 3.5 Employer to“Agree or Determine”
Determinations
DAB Decision
final and binding
Clause 20.5 “Amicable Settlement” stage
• Procedural Rules for DAB are set out in Annex to Dispute Adjudication Agreement
• DAB shall visit site at intervals of not more than 140 days but not less than 70
days at request of either Employer or Contractor
• DAB to use site visits to become and remain acquainted with progress of the
Works and actual/potential problems or claims
• DAB to produce a report after each site visit
• DAB may conduct hearings and request exchange of statements
• DAB can adopt an inquisitorial procedure and refuse admission to hearings or
grant audience to any persons other than parties’ representatives
• DAB can open up, review and revise any certificate, decision, determination,
instruction, opinion or valuation of the Engineer
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VI. Conduct of a Typical International Arbitration (1)
Application for
Interim
Relief
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VI. Conduct of a Typical International Arbitration (3)
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VI. Conduct of a Typical International Arbitration (4)
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VII. Investment Treaty Arbitration and Construction Disputes (1)
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VII. Investment Treaty Arbitration and Construction Disputes (2)
Investment
China State X
Treaty
Investment
Investment
Chinese
State X
Investor State X China
Protection Protection Investor
and and
Promotion Promotion
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VII. Investment Treaty Arbitration and Construction Disputes (3)
• BITs cover investments by an investor of one country in the territory of the other
country
• “ Investor of a Contracting State” is usually defined to include:
− Individuals who are nationals of the State; and
− Companies organised under the laws of the State
• Indirectly controlled investments are often covered
• “Investment” is usually broadly defined to include any kind of asset, which can
include any claim to money or to performance under contract
• So definition of covered investment is very wide, far beyond traditional conception
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VII. Investment Treaty Arbitration and Construction Disputes (4)
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VII. Investment Treaty Arbitration and Construction Disputes (5)
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VIII. Advice on Drafting International Construction Dispute Resolution Provisions (1)
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VIII. Advice on Drafting International Construction Dispute Resolution Provisions (2)
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VIII. Advice on Drafting International Construction Dispute Resolution Provisions (3)
• Ideally, make sure that dispute resolution clauses in performance bonds are
identical with main contract dispute resolution provisions
• No language stating that contractor must wait until after completion before
commencing final dispute resolution proceedings
• Ask for courts or (more realistically) arbitration in your home jurisdiction as a
starting point
• Agree to an arbitration friendly place of arbitration if home jurisdiction not
available, e.g. Hong Kong, Singapore, London, Paris
• If in doubt, seek specialist advice
• Keep enforcement considerations in mind, e.g. location of other party’s assets
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VIII. Advice on Drafting International Construction Dispute Resolution Provisions (4)
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IX. Advice on Preparing for and Conducting International Construction Disputes (1)
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IX. Advice on Preparing for and Conducting International Construction Disputes (2)
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IX. Advice on Preparing for and Conducting International Construction Disputes (3)
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Contact Information
John Savage
Shearman & Sterling LLP
6 Battery Road, #25-03
Singapore 049909
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