WARUNKI KONTRAKTOWE FIDIC PDF

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They are mandatory. In this case, the Supreme Court did not decide whether the successive stages of dispute resolution according to the FIDIC terms, including DAB involvement in the dispute, are mandatory or optional.

The court merely ruled that under the facts of the case, the parties had effectively modified the FIDIC general terms to agree that if no DAB was appointed, they could submit the dispute to arbitration immediately. Three persons were ultimately selected to serve on the DAB, but the Dispute Adjudication Agreement required for the board to act was never signed. Finally, in , 15 months after initially raising the dispute, the contractor commenced ICC arbitration. However, the court recognised that there are exceptions to this requirement which were applicable in the present case.

The court thus held that the phrase in clause The court rejected the reasoning of the arbitral tribunal that the phrase in clause The court found that this interpretation was inconsistent with the FIDIC dispute resolution mechanisms, particularly in instances where as here the contract provided for appointment of an ad hoc DAB—which by definition could be appointed only after the dispute arises. These arise out of clause Yet, saying in advance and once and for all when it may be applied is impossible because the answer to the question depends upon the facts germane to the case at hand.

Because the FIDIC terms are followed broadly around the world, this ruling is important also for contracts performed outside Switzerland under non-Swiss law. The most important aspect of the reasoning by the Swiss court is that when determining whether proceedings before the Dispute Adjudication Board are mandatory or optional, the key is the purpose behind the FIDIC dispute resolution system, namely for the parties to obtain effective resolution of disputes.

The ruling thus indicates that bad-faith attempts to block proceedings before the DAB will not deprive the other party of the right to proceed directly to arbitration.

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