The Claimant, a European company, was engaged by the Respondent, a West African State (State C), to carry out work related to the construction of a highway in State C. The parties' contract included the FIDIC Conditions of Contract for Works of Civil Engineering Construction (4th ed., 1987). Pursuant to Clause 67 of those Conditions, the Claimant submitted to the Engineer a request for the payment of amounts, including extra costs, it alleged were due to it. The Engineer acceded to part but not all of the request. The Claimant commenced arbitration proceedings to recover the amounts awarded to it by the Engineer in decisions which had become 'final and binding' under Clause 67 but which the Respondent had failed to pay, and to obtain a decision in its favour with respect to the costs denied by the Engineer. In its second partial award the arbitral tribunal addressed the Claimant's renewed request for an early determination of claims relating to certificate payments and design fees. In responding to this request, the Arbitral Tribunal addressed the related issues of the currency of and interest on the payments.La demanderesse, une société européenne, avait été engagée par la défenderesse, un État d'Afrique occidentale (l'État C) pour réaliser des travaux liés à la construction d'une route dans l'État C. Le contrat des parties comprenait les Conditions de contrat applicables aux marchés de travaux de génie civil de la FIDIC (4e éd. 1987). Conformément à la clause 67 de ces conditions, la demanderesse a soumis à l'ingénieur une demande de paiement des sommes, y compris des frais supplémentaires, qu'elle estimait lui être dues. L'ingénieur n'a accepté qu'une partie de cette demande. La demanderesse a engagé une procédure d'arbitrage afin d'obtenir le paiement des sommes acceptées par l'ingénieur dans des décisions devenues « définitives et irrévocables », conformément à la clause 67, mais non payées par la défenderesse, ainsi qu'une décision en sa faveur concernant les frais refusés par l'ingénieur. Dans sa seconde sentence partielle, le tribunal arbitral a examiné la demande réitérée de la demanderesse d'une décision rapide sur les réclamations relatives au paiement de certificats et aux honoraires d'études. Dans sa réponse à cette demande, il a également traité de la question connexe des devises et des intérêts sur les paiements.El demandante, una empresa europea, fue contratado por el demandado, un Estado de África Occidental (Estado C), para realizar trabajos relacionados con la construcción de una carretera en el Estado C. El contrato entre las partes incluía las condiciones contractuales para trabajos de construcción de ingeniería civil de la FIDIC (4ª ed., 1987). De conformidad con lo dispuesto en la cláusula 67 de estas Condiciones, el demandante presentó una solicitud de pago al ingeniero en concepto de las sumas, incluidos los costes adicionales, que, según alegó, se le adeudaban. El ingeniero accedió únicamente a una parte de la petición. El demandante inició procedimientos de arbitraje para recuperar el importe que le adeudaba el ingeniero de acuerdo con decisiones que, según los términos de la cláusula 67, se habían convertido en «definitivas y vinculantes», pero que el demandado no había pagado, y para obtener una decisión a su favor en relación con los costes denegados por el ingeniero. En su segundo laudo parcial, el tribunal arbitral trató la nueva solicitud del demandante de que se determinaran rápidamente las demandas relativas al pago de certificados y a los gastos de diseño. En respuesta a dicha petición, el tribunal arbitral abordó las cuestiones conexas relativas a la moneda de los pagos y al interés sobre ellos.

'25. Prior to the First Partial Award, the Respondent took the position that it was entitled to resist payment of the Claims, principally because of the Claimant' s alleged liability to it in respect of the Respondent's counterclaims, thus entitling the Respondent to a set-off under Clause 60.2 of the Contract's General Conditions. Clause 60.2 provides as follows:

The Engineer shall, within 28 days of receiving such statement [showing the amounts to which the Contractor considers himself to be entitled], certify to the Employer the amount of payment to the Contractor which he considers due and payable in respect thereof, subject:

(a) firstly, to the retention of the amount calculated by applying the Percentage of Retention stated in the Appendix to Tender, to the amount to which the Contractor is entitled under paragraphs (a), (b), (c) and (e) of Sub-Clause 60.1 until the amount so retained reaches the Limit of Retention Money stated in the Appendix to Tender, and

(b) secondly, to the deduction, other than pursuant to Clause 47, of any sums which may have become due and payable by the Contractor to the Employer.

Provided that the Engineer shall not be bound to certify and payment [sic] under this Sub-Clause if the net amount thereof, after all retentions and deductions, would be less than the Minimum Amount of Interim Certificates stated in the Appendix to Tender.

Notwithstanding the terms of this Clause or any other Clause of the Contract no amount will be certified by the Engineer for payment until the performance security, if required under the Contract, has been provided by the Contractor and approved by the Employer.

26. The Respondent also contended that the Claimant failed to rectify defects in the Contract works, in breach of Clause 67.1 of the Contract's General Conditions, and had breached the notice provisions of Clause 53.1, which states:

Notwithstanding any other provision of the Contract, if the Contractor intends to claim any additional payment pursuant to any Clause of these Conditions or otherwise, he shall give notice of his intention to the Engineer, with a copy to the Employer, within 28 days after the event giving rise to the claim has first arisen.

. . . . . . . . .

32. While the Respondent argued, prior to the First Partial Award, that it is entitled to a set-off, on the basis of the Claimant's purported indebtedness to it, under Clause 60.2 of the Contract's General Conditions, Clause 60.2 is inapplicable on its face as it relates only to the certification of payments by the Engineer and not to decisions of this Arbitral Tribunal pursuant to Clause 67.

Moreover, in its First Partial Award, the Tribunal decided that it has no jurisdiction over the counterclaims that formed the primary, if not the sole, basis for the Respondent's set-off claim, and the Respondent has failed to establish, in any event, that any sums have become due and payable by the Claimant to the Respondent under the Contract (or otherwise). The Respondent has also failed to show that, under either the Contract or [State C] law, this Tribunal should await the adjudication of other possible disputes between the parties before confirming the Engineer's decisions under Clause 67. Quite to the contrary, Clause 67.4 expressly requires both parties "to give effect" to the Engineer's decisions, even when they are disputed, unless and until reversed by an Arbitral Tribunal.

33. The Respondent's invocation of the notice provisions of Clause 53.1 of the Contract's General Conditions, as noted above, is no more meritorious in the present context. Once, as in this case, a decision of the Engineer has become final and binding under Clause 67, an Arbitral Tribunal no longer has any authority under the express terms of that provision to reconsider possible contractual defenses to the claims that were the subject of the decision. Nor has there been any showing, as contended by the Respondent, that the Claimant has breached Clause 67.1 by failing to rectify defects in the Contract works.

34. Lastly, the Respondent has not provided any evidence that, as initially alleged in its Answers to the Requests for Arbitration, any sums have been paid to the Claimant since the Engineer's decision.

35. Thus, in the view of a majority of the Arbitral Tribunal, this Tribunal no longer has any choice but to follow the terms of the Contract and make an Award ordering the Respondent to pay to the Claimant the sums to which the Engineer found the Claimant to be entitled in the Engineer's decision . . .

. . . . . . . . .

A. Overdue certificates

38. In its decision . . ., the Engineer found that the Claimant was entitled to be paid the full amount of the overdue certificates, together with interest, "as denominated in the currencies certified by the Engineer". As appears from the Claimant's letter to the Engineer . . ., the amount so certified, together with interest . . ., was subdivided into the following two components corresponding to the two Contract currencies: (i) [State C currency] …; and (ii) DM …

39. The Claimant's claim, however, is expressed entirely in euros. As noted above, the amount claimed is . . ., including interest . . . This sum has been derived from the following two components set forth in the Claimant's Exhibit . . . (i) [State C currency] component . . . (ii) DM component . . .

40. As can be seen from a comparison of the above sums with the amounts set forth in the Claimant's letter to the Engineer . . ., the amount of the claim has increased due to the continuing accrual of interest . . . The interest applied by the Claimant is claimed to have been calculated in accordance with the provisions of Clause 60.10 of the General Conditions of Contract.

41. Two issues are required to be resolved.

42. The first is whether the Claimant is entitled, as it has requested, to payment of the entire amount claimed in euros. As already noted, the Engineer decided that overdue certificates and interest are to be paid "as denominated in the currencies certified by the Engineer", that is, in [State C currency] and Deutsche Marks (now euros). The Claimant has provided no explanation or justification for its claim that amounts certified to be paid in [State C currency] should now, contrary to the Engineer's decision, be paid in euros. Thus, the Arbitral Tribunal finds that the Claimant is only entitled to the payment of the DM component in euros, the [State C currency] component being payable in [State C currency].

43. The second issue concerns the Claimant's entitlement to interest . . . in respect of the sums that are the subject of the Engineer's decision. In this respect, the Arbitral Tribunal, by a majority of its members, has little difficulty in allowing the Claimant the amount claimed, as augmented by interest as of [the date of its submission]. In addition, contractual interest continues to accrue thereafter.

44. Indeed, consistent with Clause 60.10 of the General Conditions of Contract, the Engineer explicitly accepted in its decision that interest continued to accrue under that Clause . . . Under Clause 60.10, interest is payable at the rate stated in the Appendix to the Tender, which in turn provides for the payment of interest on the [State C currency] and DM components, respectively, at the "prevailing compound interest rates of Commercial Banks . . . [in [State C] and Germany] on overdrafts".

45. . . . the Claimant claims to have calculated the interest that has accrued in respect of the amounts due as of [the date of its submission] on the basis of Clause 60.10 and the Appendix to the Tender. The Arbitral Tribunal has found no defect in those calculations, which, in any event, have not been disputed by the Respondent. They are therefore accepted by the Arbitral Tribunal, without limiting the Claimant's right to further interest in accordance with Clause 60.10 of the Contract's General Conditions, as from [the date of its submission] until the date of payment of the sums due.'