'4. Parties' positions on jurisdiction/admissibility

4.1. [Respondent]'s position

45. [Respondent] raises two jurisdictional objections to [Claimant]'s claims in the Request for Arbitration based on:

(a) [Claimant]'s alleged failure to submit these claims to a Dispute Adjudication Board ("DAB") before commencing this ICC arbitration, as allegedly required under Clause 20 of the EPC Conditions; and

(b) [Claimant]'s alleged failure to engage in amicable settlement negotiations before commencing this ICC arbitration, as allegedly required under both Clause 20 of the EPC Conditions and Article 15 of the Special Conditions.

46. Based on [Claimant]'s alleged failure to comply with these pre-arbitral procedures, [Respondent] requests the Arbitral Tribunal to rule that the Request for Arbitration is premature and that the Arbitral Tribunal has no jurisdiction to consider the Request for Arbitration until [Claimant] complies with all of the agreed pre-arbitral procedures.

……….

5. Legal analysis

5.1. The Contract's dispute resolution provisions

54. The Contract signed by [Respondent] and [Claimant] contains two main dispute resolution provisions set forth in Article 15 of the Special Conditions and Clause 20 of the EPC Conditions.

55. Article 15 of the Special Conditions provides for a two-step dispute resolution procedure involving: (a) amicable settlement negotiations; and (b) arbitration under the ICC Rules:

Article 15 Settlement of Disputes

a) The two parties agreed that in the event there arises any disputes, difference or controversy arising out or relating to this agreement, the two parties shall first try to settle it amicably.

b) Failure by the two parties to reach an amicable settlement, then the dispute, difference or controversy shall be referred to arbitration by the International Chamber of Commerce, Paris.

c) The decision there of shall be final and binding on the two parties.

d) The arbitration costs together with the arbitration fees incurred shall be borne by the party against whom the arbitration award is decided.

e) The language of the arbitration shall be English Language and the venue shall be Paris, France.

f) The applicable Law shall be the law of [Respondent's state].

56. Clause 20 of the EPC Conditions provides for a three-step dispute resolution procedure involving: (a) adjudication by a dispute adjudication board (defined above as a "DAB"); (b) amicable settlement negotiations; and (c) arbitration under the ICC Rules:

20.2 Appointment of the Dispute Adjudication Board

Disputes shall be adjudicated by a DAB in accordance with Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision]. The Parties shall jointly appoint a DAB by the date 28 days after a Party gives notice to the other Party of its intention to refer a dispute to a DAB in accordance with Sub-Clause 20.4.

The DAB shall comprise, as stated in the Particular Conditions, either one or three suitably qualified persons ("the members"). If the number is not so stated and the Parties do not agree otherwise, the DAB shall comprise three persons.

[…]

The agreement between the Parties and either the sole member ("adjudicator") or each of the three members shall incorporate by reference the General Conditions of Dispute Adjudication Agreement contained in the Appendix to these General Conditions, with such amendments as are agreed between them.

[…]

20.3 Failure to Agree Dispute Adjudication Board

If any of the following conditions apply, namely:

(a) the Parties fail to agree upon the appointment of the sole member of the DAB by the date stated in the first paragraph of Sub-Clause 20.2.

(b) either Party fails to nominate a member (for approval by the other Party) of a DAB of three persons by such date,

(c) the Parties fail to agree upon the appointment of the third member (to act as chairman) of the DAB by such date, or

(d) the Parties fail to agree upon the appointment of a replacement person within 42 days after the date on which the sole member or one of the three members declines to act or is unable to act as a result of death, disability, resignation or termination or [sic] appointment,

then the appointing entity or official named in the Particular Conditions shall, upon the request of either or both of the Parties and after due consultation with both Parties, appoint this member of the DAB. This appointment shall be final and conclusive. Each Party shall be responsible for paying one-half of the remuneration of the appointing entity or official.

20.4 Obtaining Dispute Adjudication Board's Decision

If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Employer, then after DAB has been appointed pursuant to Sub-Clauses 20.2 [Appointment of the DAB] and 20.3 [Failure to Agree DAB], either Party may refer the dispute in writing to the DAB for its decision, with a copy to the other Party. Such reference shall state that it is given under this Sub-Clause.

[…]

In [sic] either Party is dissatisfied with the DAB's decision, then either Party may, within 28 days after receiving the decision, give notice to the other Party of its dissatisfaction.

[…] neither Party shall be entitled to commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance with this Sub-Clause.

[…]

20.5 Amicable Settlement

Where notice of dissatisfaction has been given under Sub-Clause 20.4 above, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration may be commenced on or after the fifty-sixth day after which notice of dissatisfaction was given, event in no attempt at amicable settlement has been made. [sic]

20.6 Arbitration

Unless settled amicably, any dispute in respect of which the DAB's decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties,

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce,

(b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules, and

(c) the arbitration shall be conducted in the language for communications defined in Sub-Clause 1.4 [Law and Language].

The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of (or on behalf of) the Employer, and any decision of the DAB, relevant to the dispute.

Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its decision, or the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration.

Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works.

20.7 Failure to Comply with Dispute Adjudication Board's Decision

In the event that:

(a) neither Party has given notice of dissatisfaction within the period stated in Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision],

(b) the DAB's related decision (if any) has become final and binding, and

(c) a Party fails to comply with this decision,

then the other Party may, without prejudice to any other rights it may have, refer the failure itself to arbitration under Sub-Clause 20.6 [Arbitration]. Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision] and Sub-Clause 20.5 [Amicable Settlement] shall not apply to this reference.

20.8 Expiry of Dispute Adjudication Board's Appointment

If a dispute arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works and there is no DAB in place, whether by reason of the expiry of the DAB's appointment or otherwise:

(a) Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision] and1

5.2. The Arbitral tribunal's jurisdiction to render this decision

57. The Arbitral Tribunal's jurisdiction is derived from the arbitration agreements contained in Article 15 of the Special Conditions and Sub-Clause 20.6 of the EPC Conditions, subject to the jurisdictional objections raised by [Respondent].

58. Under Article 15(e) of the Special Conditions, the Parties agreed that the place of arbitration is Paris, France. The Parties confirmed this agreement in Section 7 of the Terms of Reference ...

59. Since the place of arbitration is in France and any award rendered in this arbitration is subject to review by the French courts, the Arbitral Tribunal's jurisdiction to render this decision should be determined in accordance with the French law of international arbitration.

60. Under the French law of international arbitration, it has long been recognized that an arbitral tribunal has jurisdiction to rule on its own jurisdiction under the principle of "compétence-compétence". 2 This principle has been codified in Article 14663 of the French "Code de procédure civile" (the "French CPC"), which applies to international arbitration by operation of Article 14954 of the French CPC.

61. The principle of "compétence-compétence" is also expressly recognized in Article 6(2) of the ICC Rules, which provides that "any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself".

62. In the present case, [Respondent] objects to [Claimant]'s claims in the Request for Arbitration on the ground that [Claimant] allegedly failed to comply with the pre-arbitral procedures set forth in the Contract. According to [Respondent], this objection goes to the jurisdiction of the Arbitral Tribunal rather than the admissibility of [Claimant]'s claims in the Request for Arbitration.

63. [Claimant] has not taken any position on this question, notwithstanding the Arbitral Tribunal's request for submissions on it.

64. There is some debate as to whether a party's alleged failure to comply with pre-arbitral procedures gives rises to an objection based on jurisdiction or admissibility. 5

65. For two main reasons, the Arbitral Tribunal finds that [Respondent]'s objection is properly characterized as an issue of admissibility:

(a) First, the French Cour de cassation has held that mandatory alternative dispute resolution procedures, such as conciliation or similar procedures, give rise to an objection preventing a judge from entering into the merits of the case ("fin de non-recevoir") and consequently have an effect on the admissibility ("recevabilité") of the claim. 6 This analysis is equally applicable in an international arbitration seated in France.

(b) Second, there is no evidence that the Parties' consent to arbitration in the present case was contingent on compliance with the various pre-arbitral procedures set forth in the Contract. In other words, there is no basis for concluding that the Parties would have preferred to submit disputes to state courts rather than arbitration in the event that one Party failed to comply with these pre-arbitral procedures. Accordingly, the question of whether the Parties complied with these procedures does not affect the jurisdiction or authority of the Arbitral Tribunal. 7

66. The Arbitral Tribunal therefore concludes that compliance with the different pre-arbitral procedures in the Contract, if applicable, is not a condition precedent to jurisdiction but a condition precedent to the admissibility of [Claimant]'s claims in the Request for Arbitration.

67. In any event, whether characterized as an issue of jurisdiction or admissibility, it is clear that the Arbitral Tribunal has jurisdiction to decide on [Respondent]'s objection under the principle of "compétence-compétence". A dispute as to whether the pre-arbitral requirements have been met is a dispute arising out of or connection with the Contract, which contains a valid arbitration agreement. Moreover, under the principle of "compétence-compétence", an arbitral tribunal has jurisdiction to interpret the arbitration agreement on the basis of which it has been seized. 8

5.3. Law applicable to the question of whether any claims are premature

68. Having concluded that the Arbitral Tribunal has jurisdiction to render this decision, it is next necessary to determine what law should be applied to the question of whether any claims in this arbitration are premature due to the failure to comply with pre-arbitral procedures.

69. [Respondent] argues that this question must be determined in accordance with the laws of [its country of origin]. As previously noted, [Respondent] bases this argument on: (a) Article 15(f) of the Special Conditions, which provides that "the applicable law shall be the law of [Respondent's country]"; and (b) Article 17 of the ICC Rules, which provides that "[i]n all cases the Arbitral Tribunal shall take account of the provisions of the contract and trade usages".

70. [Claimant] has not taken any position on the law applicable to this question, notwithstanding the Arbitral Tribunal's request for submissions on this point.

71. In the view of the Arbitral Tribunal, the question of whether any claims are premature relates in essence to the proper interpretation and effect of the different arbitration agreements contained in the Contract. It is therefore necessary to determine what law should be applied to these arbitration agreements.

72. The Arbitral Tribunal is not persuaded that the Parties' reference to the law of [Respondent's country of origin] in Article 15(f) of the Special Conditions constitutes a choice of law regarding the arbitration agreements in the Contract. Rather, when read in context, this reference is properly interpreted as a choice of substantive law to govern any disputes arising out of or in relation to the Contract. As a general matter, it is very unusual for parties to make an express choice of law to govern an arbitration agreement. Moreover, in the present case, there is no evidence to suggest that the Parties specifically intended to make such a choice of law regarding the arbitration agreements in the Contract or even turned their minds to this matter.

73. While the Parties did not make a choice of law in regard to the arbitration agreements, the Parties did agree that the place of arbitration is Paris, France. Given this fact, the Arbitral Tribunal finds that the law applicable to the arbitration agreements should be determined in accordance with the French law of international arbitration.

74. Under the French law of international arbitration, it is well established that the arbitration agreement is separate and autonomous from the main contract and, accordingly, it is not subject to the law which governs the main contract. In fact, French courts and legal commentators emphasize that the arbitration agreement should be seen as autonomous of any national law. Accordingly, rather than determining the law applicable to the arbitration agreement by the choice of law method, the arbitration agreement is to be assessed exclusively in accordance with French substantive rules of international arbitration. This French substantive rules method avoids the potential "idiosyncrasies of local law" and results in the arbitration agreement being interpreted and applied based on the parties' common intention, subject only to mandatory rules of French law and international public policy. 9

75. The parties' common intention in regard to an arbitration agreement should be ascertained in accordance with the same general principles of interpretation that are applicable to all contracts. The most widely recognized and important of these general principles is the principle of interpretation in accordance with good faith. Based on this principle of interpretation in good faith, it is necessary to seek the parties' true common intention by taking into account the consequences that the parties may be considered as having reasonably and legitimately envisaged. 10

76. For the above reasons, the Arbitral Tribunal concludes that the question of whether any claims are premature should be determined based on a good faith interpretation of the Parties' true common intention in regard to the arbitration agreements, without reference to any specific national law.

5.4. [Respondent]'s objection based on the DAB procedure

77. [Respondent]'s first and main objection is that [Claimant]'s claims in the Request for Arbitration are premature because these claims have not been first submitted to a DAB, as allegedly required under Clause 20 of the EPC Conditions.

5.4.1. Did the Parties agree on a DAB procedure?

78. In order to determine whether [Claimant] is required to submit its claims to a DAB before commencing arbitration, it is necessary to ascertain the Parties' true common intention regarding the interaction between Clause 20 of the EPC Conditions and Article 15 of the Special Conditions.

79. Clause 20 of the EPC Conditions is set forth above in Section 5.1. This contractual provision provides for a three-step dispute resolution procedure: (a) a DAB; (b) amicable settlement negotiations; and (c) arbitration under the ICC Rules. On its face, this contractual provision requires the Parties to refer disputes to a DAB for decision before resorting to ICC arbitration. The DAB is to be comprised of one or three "suitably qualified" persons who are to decide any disputes in connection with or arising out of the Contract. Clause 20.4 of the EPC Conditions states that the Parties are required to give prompt effect to the DAB's decision, unless one of the Parties is dissatisfied with it. In such circumstances, the Parties may refer the dispute to amicable settlement negotiations pursuant to Clause 20.5 of the EPC Conditions and then to ICC arbitration pursuant to Clause 20.6 of the EPC Conditions. The DAB is a well-known dispute resolution procedure commonly found in the FIDIC standard conditions of contact for construction and engineering projects. 11

80. Article 15 of the Special Conditions is also set forth above in Section 5.1. This contractual provision only provides for a two-step dispute resolution procedure: (a) amicable settlement negotiations; and (b) arbitration under the ICC Rules. There is no reference of any kind to the DAB in Article 15 of the Special Conditions and there is no cross-reference of any kind to the three-step dispute resolution procedure set forth in Clause 20 of the EPC Conditions.

81. In the view of the different dispute resolution procedures contained in these two contractual provisions, the Arbitral Tribunal finds that there is an ambiguity as to whether the Parties intended that all claims or disputes must be referred to a DAB before resorting to ICC arbitration.

82. Where there is an ambiguity or conflict between the different contractual documents comprising the Contract, Article 1 of the Special Conditions sets forth a specific order of precedence:

1.1. The following documents shall be part of this CONTRACT. In the event of any contradiction between the provisions of this CONTRACT and the following documents, the provision of CONTRACT shall prevail to the extent of such contradiction.

1.2. The documents are:

a) Contract Agreement

b) Special Conditions of Contract

c) Scope of Works according to the "Technical Specification …"

d) Conditions of Contract for EPC Turnkey Projects.

1.3 Order of Precedence:

In the event of any ambiguity or conflict between the Contract Documents listed above, the order of precedence shall be the order in which the Contract Documents are listed in paragraph (Contract Documents) above. [Emphasis added]

83. Pursuant to Article 1.3 of the Special Conditions, Article 15 of the Special Conditions prevails over Clause 20 of the EPC Conditions in the event of ambiguity or conflict. Given this clear order of precedence for contractual interpretation, the Arbitral Tribunal concludes that the Parties are not required to refer claims or disputes to a DAB before resorting to ICC arbitration.

84. While this conclusion would not be justified under many agreements incorporating one of the FIDIC standard conditions of contract, the Arbitral Tribunal finds that a number of different factors taken together necessitate this conclusion in the specific circumstances of the present case.

85. First, Article 15 of the Special Conditions is a free-standing and self-contained dispute resolution provision, which includes all of the necessary terms to function properly. As previously noted, this provision contains no cross-references to Clause 20 of the EPC Conditions and there is no indication of any kind that this provision should read in an integrated manner with Clause 20 of the EPC Conditions.

86. Second, Article 15 of the Special Conditions contains an express requirement that the Parties engage in amicable settlement negotiations before commencing arbitration. This is significant because it demonstrates that the Parties formed a specific intention regarding the required pre-arbitral procedure. If the Parties had intended that claims or disputes should be submitted to a DAB before amicable settlement negotiations and arbitration, they would have expressly set forth this additional requirement in Article 15 of the Special Conditions or at least included a cross-reference to Clause 20 of the EPC Conditions. In this regard, it is important to recognize that the Special Conditions were specifically "tailor-made" by the Parties whereas the EPC Conditions are "off-the-shelf" general conditions which appear to have been based, in part at least, on FIDIC standard conditions. It is therefore logical that, in the event of ambiguity or conflict, the terms of the Special Conditions take precedence over the terms of the EPC Conditions.

87. Third, it is not relevant, in and of itself, that Clause 20 of the EPC Conditions refers to the "Particular Conditions". 12 Given the order of precedence set forth in Article 1.1 of the Special Conditions, the relevant question is whether Article 15 or some other provision of the Special Conditions contains a reference to Clause 20 of EPC Conditions or, more specifically, to the DAB procedure. The Special Conditions do not, however, contain any such reference. In the absence of any reference to the DAB procedure in the Special Conditions, the free-standing and self-contained dispute resolution procedure set forth in the Special Conditions must take precedence.

88. Fourth, the Parties' decision to expressly exclude certain provisions of the EPC Conditions in Article 14 of the Special Conditions does not alter the analysis. Article 14 of the Special Conditions simply provides as follows:

Article 14 Commencement & Payment

Section 8.1 (commencement of the works) in the General Conditions not applicable

Section 14.2 (Advanced payment) in the General Conditions not applicable

Section 14.8 (delayed payment) in the General Conditions not applicable.

This provision does not address the issue of dispute resolution and has no bearing on how ambiguities or conflicts between the different contractual documents comprising the Contract are to be resolved. Having concluded that there is an ambiguity regarding the different dispute resolution provisions in the Special Conditions and the EPC Conditions, the Arbitral Tribunal is bound to resolve this ambiguity in accordance with the order of precedence agreed by the Parties in Article 1.3 of the Special Conditions.

89. Fifth, unlike Article 15 of the Special Conditions, Clause 20 of the EPC Conditions does not contain all of the terms necessary to function properly. In particular, Sub-Clause 20.4 of the EPC Conditions provides that the DAB is to operate in accordance with "General Conditions of Dispute Adjudication Agreement contained in the Appendix to these General Conditions". 13 The EPC Conditions as attached to the Contract do not, however, contain any such Appendix. Similarly, the Parties have not named "the appointing entity or official" in the Special Conditions as required by Sub-Clause 20.3 [Failure to Agree Dispute Adjudication Board] of the EPC Conditions. While not determinative, the Parties' failure to agree on this Appendix and failure to name an appointing entity in the Special Conditions constitute additional evidence that they never actually turned their minds to adopting the DAB procedure contained in Clause 20 of the EPC Conditions.

90. Sixth and finally, the Party's subsequent conduct confirms that neither of them consider the DAB procedure to be an essential first step prior to submitting claims to arbitration. [Claimant] brought forward its claims in the Request for Arbitration without first referring the dispute to a DAB and [Respondent] implicitly renounced the DAB procedure with respect to its counterclaim, as set forth in the Answer and Counterclaim.

91. For all of the above reasons, the Arbitral Tribunal concludes that the Parties have expressed a common intention to resolve disputes under the Contract in accordance with the two-step procedure of amicable settlement negotiations and ICC arbitration set forth in Article 15 of the Special Conditions. Consequently, the Parties are not required to submit claims to a DAB before resorting to ICC arbitration, as alleged by [Respondent].

92. The Arbitral Tribunal therefore dismisses [Respondent]'s objection to [Claimant]'s claims in the Request for Arbitration based on the failure to comply with the alleged DAB requirement in Clause 20 of the EPC Conditions.

5.4.2. Are [Claimant]'s claims admissible in any event?

93. Furthermore, even if the Parties did agree on a requirement to submit claims to a DAB before commencing ICC arbitration, the Arbitral Tribunal finds that [Respondent] is not entitled to rely on this alleged requirement as a ground for objecting to the admissibility of [Claimant]'s claims.

94. Before turning to the reasons for this alternative finding, the Arbitral Tribunal must emphasize that the DAB procedure, as provided under FIDIC standard conditions of contract, is usually considered to be mandatory. Accordingly, parties are ordinarily required to submit claims to a DAB for decision before they will be contractually entitled to commence arbitration.14

95. As previously noted, the French Cour de cassation has held that the failure to comply with such mandatory alternative dispute resolution procedures gives rise to an objection to the admissibility of the claim.15 When faced with a valid objection of this kind, the court must therefore declare the claim inadmissible and temporarily suspend the legal proceedings. According to leading commentators, an arbitral tribunal seated in France should adopt the same approach.16

96. However, for several reasons, the Arbitral Tribunal finds that the situation is different in the present case, where there is no legitimate ground for declaring [Claimant]'s claims inadmissible and suspending this ICC arbitration.

97. First and foremost, [Respondent] has taken a contradictory position regarding the alleged requirement to submit claims to a DAB before commencing arbitration under the Contract:

(a) On one hand, [Respondent] has objected to [Claimant]'s claims in the Request for Arbitration on the ground that [Claimant] failed to submit these claims to a DAB pursuant to Clause 20 of the EPC Conditions.

(b) On the other hand, [Respondent] has itself made counterclaims in the Answer and Counterclaim without first submitting these counterclaims to a DAB. [Respondent] contends that these counterclaims are not premature because [Claimant] has not objected to the Arbitral Tribunal's jurisdiction over them.

98. By submitting its counterclaims directly to arbitration, it is clear that [Respondent] waived by conduct any right to a DAB decision in respect of such counterclaims. However, by doing so, it is equally clear that [Respondent] also waived any right to require [Claimant] to submit its claims to a DAB before commencing arbitration.

99. In British Leyland International Services v. Établissements Richard, 17 the French Cour de cassation came to a similar conclusion. In that decision, the Court found that the claimant's decision to commence legal proceedings before the French courts notwithstanding an arbitration clause in the relevant contract resulted in a waiver of the arbitration clause with respect to both the main claim and the counterclaim. Consequently, the Court held that the claimant was not entitled to rely on the arbitration clause as a ground for objecting to the jurisdiction of the state courts in relation to the counterclaim.

100. Although the facts of the present case are somewhat different, the Arbitral Tribunal finds that the French Cour de cassation's reasoning and overall conclusion are equally applicable in this ICC arbitration. [Respondent] cannot waive the DAB procedure for its own counterclaims and, at the same time, insist on compliance with the DAB procedure for [Claimant]'s claims.

101. Second, contrary to the submission of [Respondent], the question of whether [Claimant] raised a jurisdictional objection to [Respondent]'s counterclaims is irrelevant. The only relevant question is whether [Respondent] waived its alleged right to require [Claimant]'s compliance with the DAB procedure by directly referring its counterclaims to arbitration. For the reasons set forth above, the Arbitral Tribunal considers that [Respondent] has waived any such right.

102. Third, [Respondent] has not itself taken any steps to have [Claimant]'s claims referred to a DAB during the period of more than three years since this dispute first arose between the Parties. Given this fact and the fact that [Respondent] did not refer its own counterclaims to a DAB, [Respondent] has failed to demonstrate a serious interest and readiness to engage in the DAB procedure. In such circumstances, [Respondent] cannot legitimately rely on the DAB procedure as a ground for objecting to the admissibility of [Claimant]'s claims. 18

103. Fourth, from the perspective of the good administration of justice, it would be undesirable to refer [Claimant]'s claims to a DAB and, at the same time, proceed with the adjudication of [Respondent]'s counterclaims in this arbitration. This would result in claims and counterclaims that are based on identical facts being adjudicated separately and on two different procedural timetables. Such an approach would invariably give rise to numerous problems.

104. Fifth and finally, the Arbitral Tribunal doubts that referring the Parties to a DAB at this stage would serve any practical purpose. The DAB procedure is designed to avoid delays and disruption by providing for the speedy resolution of disputes during the course of construction and engineering projects. 19 In the present case, the Parties never started work on the project. According to [Respondent], the Contract was terminated more than three years ago in March 2007, prior to any works being carried out. Moreover, whatever the outcome of the DAB procedure, the Parties are almost certain to be unsatisfied and will therefore refer [Claimant]'s claims back to this arbitration for determination. In these circumstances, the main practical effect of referring the Parties to a DAB would be to increase the costs and delay the final resolution of this dispute. This is not in the interest of either Party.

105. Accordingly, whether or not the Parties agreed on a requirement to submit claims to a DAB before commencing arbitration under the Contract, the Arbitral Tribunal dismisses [Respondent]'s objection to [Claimant]'s claims in the Request for Arbitration based on any such requirement.

5.5. [Respondent]'s objection based on the amicable settlement negotiation procedure

106. [Respondent]'s second objection is that [Claimant] failed [to] engage in amicable settlement negotiations before commencing this ICC arbitration, as allegedly required under both Clause 20 of the EPC Conditions and Article 15 of the Special Conditions.

107. For two main reasons, the Arbitral Tribunal does not consider that [Claimant]'s claims in the Request for Arbitration are inadmissible due to non-compliance with the provisions regarding amicable settlement negotiations in the Contract.

108. First, the Arbitral Tribunal doubts that the provisions regarding amicable settlement negotiations in the Special Conditions and the EPC Conditions are mandatory in nature. 20 Neither of these provisions contain objective criteria which would enable the Arbitral Tribunal to determine that the procedure of amicable settlement negotiations has been exhausted. Article 15(a) of the Special Conditions does not contain any specific time limits governing the commencement and conclusion of the negotiation process or when arbitration may be commenced. While Sub-Clause 20.5 of the EPC Conditions refers to certain time limits, the Parties are ultimately at liberty to commence arbitration 56 days after the notice of dissatisfaction is given even in the event that "no attempt at amicable settlement has been made". 21 Accordingly, this provision specifically contemplates the possibility that the Parties will not make any attempt at amicable settlement negotiations.

109. Second and in any event, the Arbitral Tribunal finds there is clear evidence that [Claimant] made genuine efforts to engage in amicable settlement negotiations before commencing this ICC arbitration. The correspondence on record shows that [Claimant] repeatedly requested a meeting with [Respondent] … for the purpose negotiating an amicable resolution of the present dispute ... Moreover, it appears that the Parties did, in fact, meet for this purpose …, although this meeting did not ultimately result in a final settlement ... Finally, it should be noted that [Claimant] waited almost two years after [Respondent]'s purported termination of the Contract … before filing its Request for Arbitration ... Accordingly, this is not a case where the claimant acted precipitously in commencing arbitration, without first seeking to resolve the dispute amicably.

110. In these circumstances, the Arbitral Tribunal finds that [Claimant] complied fully with the pre-arbitral procedure of amicable settlement negotiations set forth in Contract before commencing this ICC arbitration.

5.6. Conclusion on [Respondent]'s two objections

111. For all of the above reasons, the Arbitral Tribunal concludes that: (1) [Claimant] is not required to submit its claims to a DAB before commencing ICC arbitration under the Contract; and (2) [Claimant] complied fully with the procedure of amicable settlement negotiations set forth in Contract before commencing this ICC arbitration.

112. Consequently, the Arbitral Tribunal dismisses [Respondent]'s jurisdictional objections and declares that [Claimant]'s claims set forth in the Request for Arbitration are admissible in this ICC arbitration.

6. Interim Award on Jurisdiction/Admissibility

113. For all of the above reasons, the Arbitral Tribunal hereby makes the following Interim Award on Jurisdiction/Admissibility:

(a) [Respondent]'s jurisdictional objections are dismissed;

(b) the Arbitral Tribunal's jurisdiction over the claims and counterclaims in this arbitration is affirmed;

(c) [Claimant]'s claims set forth in the Request for Arbitration are declared to be admissible;

(d) the decision on the costs relating to the determination of [Respondent]'s jurisdictional objections is reserved to the Final Award; and

(e) any and all other decisions are reserved to one or more future Awards.'

1
Sub-Clause 20.8 of the EPC Conditions ends abruptly at this point - it appears that the Parties failed to complete this contractual provision. Nevertheless, when asked by the Arbitral Tribunal, the Parties both confirmed that the Contract as filed is complete and accurate. Neither Party has provided any explanation as to the status or content of this provision. Sub-Clause 20.8 of the standard FIDIC Conditions of Contract for EPC Turnkey Projects goes on to provide that, where no DAB is in place, "the dispute may be referred directly to arbitration under Sub-Clause 20.6 [Arbitration]". If the Parties had agreed on this full text of Sub-Clause 20.8, the Arbitral Tribunal's reasoning in this Interim Award might well have been different, although the outcome would have been the same.

2
E. Gaillard/J. Savage, eds., Fouchard, Gaillard, Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999) at §§ 650-655, pp. 395-398; J.L. Delvolvé/J. Rouche/G.H. Pointon, French Arbitration Law and Practice (The Hague: Kluwer Law International, 1999) at §§ 170-172, pp. 93-94

3
Article 1466 of the French CPC provides: "If one of the parties contests, before the arbitrator, the principle or scope of the arbitrator's jurisdiction, the arbitrator shall rule on the validity or scope of his or her jurisdiction."

4
Article 1495 of the French CPC provides: "Where the international arbitration is governed by French law, the provisions of Titles I, II, and III of the present Book shall only apply in the absence of specific agreement, and subject to Articles 1493 and 1494."

5
J. Paulsson, "Jurisdiction and Admissibility" in International Law, Commerce and Dispute Resolution, Liber Amicorum in the Honour of Robert Briner (Paris: ICC Publishing, 2005) at pp. 601-617; A. Jolles, "Consequences of Multi-Tier Arbitration Clauses: Issues of Enforcement" (2006) 72 Arbitration 4 at p. 335.

6
Decision of the French Cour de cassation, 14 February 2003, Poiré v. Tripier, Rev. arb. 2003, p. 403; C. Jarrosson, "Observations on Poiré v. Tripier" (2003) 19:3 Arbitration International p. 363; Decision of the French Cour de cassation, 2e civ., 25 February 2010 (09-14044); see also J.F. Poudret / S. Besson, Comparative Law of International Arbitration, 2nd ed. (London: Thomson / Sweet & Maxwell, 2007) at § 13, p. 12 and FN 58a (with several additional authorities).

7
Paulsson, supra at pp. 616-617; Jolles, supra at p. 335.

8
Jolles, supra at p. 335; Gaillard / Savage, supra at § 473, p. 254 and §§ 650-688, at pp. 395-415

9
Decision of the French Cour de cassation, 1e civ., 20 December 1993, Dalico v Kohms el Mergeb, Rev. Arb. 1994, p. 116; Decision of the French Cour de cassation, 1e civ., 30 March 2004, Uni-Kod v Ouralkali, Rev. arb. 2005, p. 959; Gaillard / Savage, supra at §§ 412-414, pp. 212-213, §§ 436-445, pp. 228-236 and §§ 472-475, pp. 253-256; Delvolvé/Rouche/Pointon, supra at § 91 at pp. 55-56; Poudret / Besson, supra at §§ 180-182, pp. 144-147 and §§ 291-292, pp. 254-255.

10
Gaillard/Savage, supra at §§ 476-477, pp. 256-257.

11
See the different standard conditions of contract published by FIDIC, the International Federation of Consulting Engineers: www.fidic.org.

12
See: Sub-Clause 20.2 (second paragraph) and Sub-Clause 20.3 (second paragraph) of the EPC Conditions.

13
B.W. Totterdill, FIDIC Users' Guide: A Practical Guide to the 1999 Red Book (London: Thomas Telford Ltd, 2001), p. 240.p. 240: "It is necessary for the Contract to state the procedures, powers and authority of the DAB […]. These procedures, powers and authority are given in this Clause, together with the Appendix and Annex which follow Clause 20." [emphasis added].

14
J. Glover/S. Hughes/C. Thomas, Understanding the New FIDIC Red Book: A Clause-by-Clause Commentary (London: Sweet & Maxwell, 2006) at § 20-028, p. 386 and at §20-037, p. 390; C.R. Seppala, "The New FIDIC Provisions for a Dispute Adjudication Board", (1997) Int'l Bus. L.J. 967 at p. 972; C.R. Seppala, "The Pre-Arbitral Procedure for the Settlement of Disputes in the F.I.D.I.C (Civil Engineering) Conditions of Contract", The International Construction Law Review (Volume 3, October 1985-October 1986) 315 at pp. 333-334.

15
Decision of the French Cour de cassation, 14 February 2003, Poiré v. Tripier, Rev. arb. 2003, p. 403; Decision of the French Cour de cassation, 2e civ., 25 February 2010 (09-14044).

16
Jarrosson, "Observations on Poiré v. Tripier", supra; see also Poudret Besson, supra at § 13, p. 12 and FN 58a (with several additional authorities).

17
Decision of the French Cour de cassation, 1e civ., 6 June 1978, Société British Leyland International Services v. Société d'exploitation des Établissements Richard. See also: T. Portwood, "Country Overview of France", The European and Middle Eastern Arbitration Review 2008 (London: Global Arbitration Review, 2008).

18
While not applicable to this ICC arbitration, the Swiss position on this question is instructive: Decision of the Swiss Federal Supreme Court 4A_18/2007 (published in ASA Bulletin 1/2008, 87-102); C. Boog, "How to Deal with Multi-tiered Dispute Resolution Clauses - Note on the Swiss federal Supreme Court's Decision 4A_18/2007", ASA Bulletin 2008, pp. 103-112, at p. 110; M.E. Schneider/M. Scherer, "Switzerland", in R. Knutson, ed., FIDIC: An Analysis of International Construction Contracts, 2005, pp. 313-342, 340.

19
Glover/Hughes/Thomas, supra at § 20-017, p. 382, § 20-028, p. 386, § 20-036, p. 389.

20
Decision of the French Cour de cassation, chambre sociale, 13 January 2010 (08-18202); Decision of the Cour d'appel de Bourges, 1e civ., 21 February 2008 (RG 07/00530); D. Jiménez Figueres, "Le règlement amiable comme préalable à l'arbitrage dans les clauses d'arbitrage CCI" (2003) ICC International Court of Arbitration Bulletin, Vol. 14 / No. 1 2003, pp. 77-94.

21
Glover/Hughes/Thomas, supra at § 20-041, p. 391.