By Mike Stewart and Camilla de Moraes, K&L Gates, London
Following on from our recent blog post discussing the case of Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar  EWHC 1028 (TCC) (which can be found here), there has been another recent decision in the English courts regarding the International Federation of Consulting Engineers (FIDIC) suite of contracts. The case of Peterborough City Council v Enterprise Managed Services Ltd  EWHC 3193 has confirmed that the referral of a dispute to a Dispute Adjudication Board (DAB) under FIDIC is mandatory and operates as a condition precedent to the dispute being referred to arbitration or litigation for final resolution. The case also discusses the well know “gap” in the provisions of clause 20 of the FIDIC conditions where arbitration is chosen as the final method of dispute resolution.
Under the terms of the contract, Enterprise Managed Services Ltd (EMS) agreed to design, supply, install, test and commission a 1.5 MW solar energy plant on the roof of a building owned by Peterborough City Council (the “Council”).
The form of contract was the FIDIC General Conditions of Contract for EPC/Turnkey Projects (the “Silver Book”). The works were completed in late 2011, and the Council alleged that the plant failed to reach the required output of 55kW. Disputes then arose between the parties as to the value of EMS’s executed work and whether or not liquidated damages were payable to the Council for failure to meet the required output.
On 21 July 2014, EMS gave notice under the contract of its intention to refer the dispute to adjudication. Despite this, on 11 August 2014, the Council issued proceedings. Shortly afterwards, the Council wrote to EMS disputing that it was obliged to refer the dispute to the DAB. On 27 August 2014, EMS issued an application to the court for an order to stay the action brought by the Council.
Clauses 20.2–20.7 of the contract set out the procedure for dispute resolution by a DAB to be appointed on an ad hoc basis after any dispute has arisen. Clause 20.8 stated that if at the time a dispute arose there was no DAB in place, “whether by reason of the expiry of the DAB’s appointment or otherwise”, then either party could proceed to litigation.
The issues to be decided were:
i) Whether the contract required a dispute to be referred to adjudication by a DAB as a condition precedent to issuing court proceedings; and
ii) If so, should the court exercise its discretion and order that the proceedings commenced by the Council should be stayed?
In relation to the first issue, the Council argued that Clause 20.8 operated as an “opt-out” from DAB adjudication. However, even if such a reference was mandatory, the Council argued that it would be a time consuming, expensive and ultimately unproductive exercise to conduct an adjudication which would almost certainly provoke a notice of dissatisfaction from one or other of the parties, and therefore, a stay should not be granted.
In respect of the Council’s argument that Clause 20.8 operated as an ‘opt-out’ from DAB adjudication, the judge held that Clause 20.8 would “probably” only grant the parties a unilateral right to opt out of the DAB adjudication if the parties had agreed to appoint a standing DAB at the outset. This was because an ad hoc DAB would only ever be appointed after a dispute had arisen. Otherwise, Clauses 20.2 and 20.3 would have no application because, under those sub-clauses, there had to be a dispute before the process of appointing a DAB began. Given that Clause 20.2 provided for ad hoc DAB appointments and on the Council’s argument Clauses 20.2–20.7 would have been rendered meaningless, the judge accepted EMS’s argument that the contract required disputes to be resolved by way of DAB adjudication prior to litigation.
As to the Council’s submission that the “rough and ready” process of adjudication was entirely unsuitable to resolve the dispute between the parties, although the judge agreed, he stated that this was an inherent feature of adjudication. The judge, however, referred to the presumption that parties should be left to resolve their disputes in the manner provided for in their contract. He stated that the factors and rival scenarios between the parties were finely balanced, and that the Council had failed to make out a sufficiently compelling case to displace the presumption and, accordingly, had failed to make out a sufficient case for resisting a stay.
It was held that the parties must be left to resolve their dispute in accordance with the contractual mechanism, namely adjudication.
“Gap” in FIDIC Clause 20
As part of its submissions, the Council argued that there is a gap in Clauses 20.4–20.7, such that these clauses should be unenforceable for lack of certainty. This so-called “gap” has been the subject of much commentary.
Clause 20.4 of the FIDIC conditions provides that, where a party gives a notice of dissatisfaction after a DAB decision, then the decision must be given effect to (pending final determination). It is therefore binding, but it is not final and binding. The Council argued that if the unsuccessful party subsequently failed to comply with the DAB’s decision, then the only remedy for the successful party would be to refer the refusal to comply to a DAB. The fact that the unsuccessful party is left without an effective remedy (other than to refer the original dispute to arbitration or litigation) is the “gap” which the Council argued rendered the particular clauses unenforceable.
The judge rejected the Council’s argument that Clauses 20.4–20.7 were unenforceable for lack of certainty. The judge held that although the “gap” point was arguable if the contract contained an arbitration clause, it fell away if litigation was the forum for final dispute resolution. This was because a court could intervene and order specific performance of the obligation to comply with the DAB’s decision (something which an arbitrator may not have jurisdiction to do).
Interestingly, there has been a recent case heard by the Swiss Federal Supreme Court where it was decided that, although the DAB procedure was a condition precedent to arbitration, the parties did not have to go through the process if doing so would amount to an abuse of rights/breach of the principle of good faith. Given that there is no underlying principle of good faith in English law, it would be unlikely if such arguments were deployed before the English courts to rebut the presumption that parties should be left to resolve their disputes in the manner provided for in their contract.