SYSTECH SOLICITORS LEGAL UPDATE

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them the right to seek future determination. The majority of the arbitral tribunal were not convinced of PGN’s defence and issued an interim award compelling PGN to make payment under the DAB’s decision pending the tribunal’s decision on the Underlying Dispute. Once again PGN disputed the arbitrator’s award and took it before the High Court. High Court in 2014 The High Court agreed with the tribunal majority and rejected PGN’s argument that an interim award was in breach of s19B of the IAA, stating that the award was final and binding on the specific subject that it dealt with. The award was there to “decide with finality CRW’s substantive but provisional right to be paid promptly without having to wait”, whilst still preserving PGN’s right to argue the case later. The High Court stated that it was important to look at the intentions of the contracting parties when they signed the contract, which in this case clearly saw both parties agreeing to the SOP regime and its facilitation of provisional relief. PGN subsequently appealed the decision to the CoA. Court of Appeal in 2015 Unable to come to a unanimous decision the CoA split 2:1 in favour of CRW. In Justice Chan’s 95 page dissenting judgment he rationalised that FIDIC’s original intention, traced back from its history, was for DAB decisions to go through the local courts and advocated in favour of the ‘gap’ in enforcement of a DAB decision. The majority however, affirmed the High Court’s decision stating that sub-clause 20.4 imposed a distinct contractual obligation on the parties to comply with a DAB decision which was final and binding, regardless of whether a notice of dissatisfaction was given or whether it was subsequently revised. What is also of note is CoA’s disagreement from the earlier 2011 CoA judgment, where the latest decision held that the parties did not require the Underlying Dispute and Secondary Dispute to be settled in the same arbitration. The Secondary Dispute was a dispute within its own right and was capable of having a standalone decision. Conclusion Where a payment dispute arises, incorporating dispute resolution sub-clauses 20.4 to 20.7 from FIDIC (not only Red but also those using Silver, Yellow and Pink Books) the Singapore courts have shown that they are willing to enforce interim relief granted by the DAB to a contractor in accordance with the contract. The CoA reiterated the importance that delay is contrary to the intended purpose of the SOP regime. As a result, this judgment hopefully provides a deterrent to employers who wish to use these clauses to shield themselves from making prompt payment to the contractor. It is a shame that the conclusion of this saga is not more convincing as the detailed dissenting judgment as well as the majority’s deviation from a previous CoA decision may encourage other employers to try their luck, however, it is understood that FIDIC Drafting Committee is presently working on revising their suite of contracts to incorporate an express right to enforce non-final DAB decisions. Parties to a construction contract are advised to adopt this if they want a fool proof means of avoiding the commotion. 28 www.systech-int.com
Systech Solicitors offers a truly unique service – a global legal solution from a single business. Our solicitors and counsel combine with commercial managers, claims consultants, forensic planners and experts from Systech International to offer contractors an innovative and cost effective approach to legal services. We provide contentious and non-contentious advice to our clients over the full lifespan of a project – from initial involvement in the structuring and drafting of contracts to formal dispute resolution and advocacy. Our solicitors are also available for short and medium term secondments, becoming part of your team and working under your instruction. Our solicitors, counsel, advocates and paralegals, who are regulated by the SRA in England and Wales, operate across different jurisdictions from both civil and common law systems and a number of our team sit as part-time judges, arbitrators or adjudicators and on dispute review boards. Our consultants work together under a single point of responsibility to provide a fully co-ordinated and seamless service from the outset of a project to its conclusion, avoiding the abortive work that often arises when using multi-party advisors. Our cost effective performance fee based service is half the cost of that charged by traditional solicitor practices and also benefits from full legal professional privilege (Water Lilly v Mackay). Legal issues are often complex and we are able to use our in-house visualisations expertise to demonstrate the key facts pictorially, aiding communication with the key decision makers and avoiding the confusion that can be caused by language issues. We operate from our offices across Europe, the Middle East and Africa, Asia Pacific and the Americas, locations that are ideally placed for the global seats of arbitration. • International Chamber of Commerce, Paris [ICC] • Dubai International Arbitration Centre [DIAC] • Singapore International Arbitration Centre [SIAC] • London Court of International Arbitration [LCIA] Contentious and non-contentious services • Procurement strategy • Contract advice • Contract risk • Partnering / JV / framework agreements • PPP / PFI • Dispute management and resolution • Adjudication, mediation, arbitration and litigation • Training • Interim legal services Sectors • Construction [Building, civil engineering, MEP] • Transportation [rail, air, highways] • Energy [power, oil and gas, mining] • Telecommunications and IT • Shipping and marine • Industrial and process • Facilities Management Contacts Rebecca Redhead London Director of Legal Services, Europe rebecca.redhead@systech-solicitors.com Tel: +44 (0) 207 940 7656 Tom Allen Dubai Director of Legal Services, MEA and APAC tom.allen@systech-solicitors.com Tel: (+971) 4 420 8900 www.systech-int.com 29
Page 1 and 2: SYSTECH SOLICITORS LEGAL UPDATE 1st
Page 3 and 4: CONTENTS 4 7 10 13 16 19 22 26 John
Page 5 and 6: The first question to ask is: is re
Page 7 and 8: CLIENT’S GUIDE TO ENFORCING ARBIT
Page 9 and 10: virtually any matter can be argued
Page 11 and 12: It is a fairly common scenario in t
Page 13 and 14: CHERRY PICKING IN ADJUDICATION Phil
Page 15 and 16: from the responding party from sums
Page 17 and 18: When it comes to construction and s
Page 19 and 20: PROTECTING COMMERCIALLY VALUABLE IN
Page 21 and 22: can be fiercely negotiated and rang
Page 23 and 24: The SICC confirms Singapore as a Di
Page 25 and 26: Summary While arbitration as an alt
Page 27: The question as to whether the Sing

SYSTECH SOLICITORS LEGAL UPDATE

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