Civil Engineering Reference
In-Depth Information
DABs and can either issue a recommendation or make a decision, depending on what
the parties request in the particular situation.
There tend to be time limits built into the procedure within which the board is
required to make its decision or recommendation. The aim is for this to be done
quickly. The decision or recommendation is often binding only on an interim basis
and the dispute can ultimately be taken to court or arbitration, should the parties so
desire. However, like adjudication, it is often a quick decision that is required, even if
it is rough and ready, in order to allow parties to move on and there may then be little
appetite for later arbitration or court proceedings.
18.6.4 Enforcement of decisions
An important issue in relation to decisions of dispute boards is how to enforce them.
The FIDIC Red Book provision is that the DAB decision 'shall be binding on both
Parties,whoshallpromptlygiveefecttoitunlessanduntilitshallberevisedin
an amicable settlement or an arbitral award'. The final form of dispute resolution in
FIDIC is international arbitration.
Where there is no notice of dissatisfaction issued within the time limits for this,
FIDICgoesontoprovidethatthedecisionshallthenbecomeinalandbinding.In
relation to enforcement of a DAB decision which has become final and binding (i.e.
where no notice of dissatisfaction is issued), FIDIC provides that the failure to comply
with the decision may be referred to arbitration. Where there is a notice of dissatis-
faction, the arbitral tribunal has power, among other things, to open up, review and
revise any decision of the DAB. This would involve a re-run of the dispute.
There is, therefore, on the face of it, a gap in that no specific provision is made
for enforcement of the DAB decision in a situation where there is a notice of dis-
satisfaction. This gap was discussed in the Singapore Court of Appeal case of
CRW
Joint Operation
v.
PT Perusahaan Gas Nagara (Persero) TBK
(2011), which dealt with
enforcement of an order for payment in a DAB decision. The DAB had issued a deci-
sion requiring PGN to pay CRW US$17 million. PGN issued a notice of dissatisfac-
tion. CRW referred the case to arbitration. One of the orders sought was for a final
awardenforcingtheDAB'sdecisiononthebasisPGNwasinbreachofthecontract
provision requiring that parties should promptly give effect to DAB decisions. They
sought immediate payment of the amount in the DAB decision. The arbitral tribunal
concluded the DAB decision was binding and made a final award finding the sum
awardedbytheDABwasdueandthatPTNshouldmakeanimmediatepayment.
heydeclinedtoopenup,revieworrevisetheDABdecision.PTNsoughtanorder
from the Singapore High Court to set aside that decision. Both the High Court and
the Court of Appeal refused to enforce the award. he Tribunal could have dealt with
this by way of an interim or part award pending final resolution of the parties' dispute
but it had enforced by a final award without a hearing on the merits. That is where
they went wrong.
The FIDIC has sought to close this loophole in the Gold Book, which provides that
ifapartyfailstocomplywithaDABdecision,whetherbindingorinalandbinding(in
other words, whether or not there has been a notice of dissatisfaction), the other party
