On 27 May 2015, the 160-page reserved judgement of the Singapore Court of Appeal (“CA”) was handed down in Persero 2 - PT Perusahaan Gas Negara (Persero) TBK (“PGN”) v CRW Joint Operation (“CRW”). It will be regarded a triumph for contractors wishing to enforce DAB decisions. The CA ruled that the interim award issued by the arbitral tribunal ordering enforcement of the DAB’s decision should stand. Using the concept of an “inherent premise”, the CA made two important findings: 1) it was not necessary for the Contractor to refer the failure to pay (the secondary dispute) back to the DAB; and 2) it was not necessary for him to refer the merits (the primary dispute) in the same single arbitration as his application to enforce.
If there is no DAB appointed by the 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.
Four say YES:
• The arbitral tribunal in ICC Case 10619 considered that it was simply the law of the contract.
• This reasoning appears to have been followed in the DBF case.
• A sole arbitrator in ICC Case 16948/GZ, said a final award was OK (this is contrary to the Court of Appeal in Singapore’s guidance).
• A sole arbitrator in ICC Case 15751/JHN considered that a party should be required to pay that sum decided by the DAB and interest from the date when payment was due by way of damages for breach.
Three say NO:
• The Court of Appeal in Singapore (CRW v PGN) say NO in relation to a final award (and upheld the High Court’s decision to set aside the arbitral tribunal’s award, which was enforced by way of a final award) but, obiter, suggest that as long as the merits are placed before the arbitral tribunal, in principle, an interim or partial award enforcing should be possible.
• A sole arbitrator in ICC Case 16119/GZ suggests that a partial final award and consequently also a final award are inappropriate devices to allow enforcement but suggests, obiter, that an interim award might be effective.
• The sole arbitrator in ICC Case 16949/GZ concluded that damages could not include the sum adjudged as due by the DAB and so declined to enforce.
This article is divided into ﬁve parts, namely: Introduction; How can the court’s jurisdiction be ousted (‘‘Are you out?’’); How can the court’s jurisdiction be included (‘‘Are you in?’’); When will the courts give permission to appeal; and Procedural aspects of s.69 of the English Arbitration Act 1996 (‘‘the 1996 Act’’).
The fundamental message behind this article is that the parties should agree at as early a stage as possible on whether:
they wish to oust the jurisdiction of the courts in relation to appeals on a question of law (Are you out?—s.69(1))
or whether they wish to agree to include the ability to appeal to the courts on a question of law (Are you in?—s.69(2)).
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