'7. The Contract provided in Clauses 24 and 25 of the General Conditions of Contract (GCC):

24. Disputes

24.1. If the Contractor believes that a decision taken by the Project Manager was either outside the authority given to the Project Manager by the Contract or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 14 days of the notification of the Project Manager's decision.

25. Procedure for Disputes

25.1. The Adjudicator shall give a decision in writing within 28 days of receipt of a notification of a dispute.

25.2. The Adjudicator shall be paid by the hour at the rate specified … together with reimbursable expenses of the types specified in the Contract Data, and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision

shall be final and binding.

25.3. The arbitration shall be conducted in accordance with the arbitration procedures published by the institution named and in the place specified in the SCC.

8. The Contract also provided in the Special Conditions of Contract (SCC):-

GCC 25.3. Institution whose arbitration procedures shall be used:

"The International Chamber of Commerce (ICC):

Sub-clause 25.3 - All disputes arising in connection with the present Contract shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more Arbitrators appointed in accordance with said Rules."

The place of arbitration shall be: in accordance with the Rules of Arbitration and Conciliation of the International Chamber of Commerce.

………

Respondent's case

107. The Respondent's case on jurisdiction is in summary as follows.

1. The Adjudicator's decision of 2 April 2009 was final and binding since the Claimant had not referred the dispute to arbitration within 28 days as required by Clause 25.2 (GCC). Reference was made to [an appeal court decision in the country whose law was applicable] on the importance of complying with time limits.

2. The Claimant's letter of 30 April 2009 did not comply with Clause 25.2 (GCC) since Clause 25.2 (GCC) read with Clause 25.3 (SCC) required that the arbitration should be conducted under the Rules of Arbitration of the International Chamber of Commerce, Article 4 of which provided that a party wishing to have recourse to arbitration shall submit a Request for Arbitration which had to comply with Article 6.

3. The Claimant did not submit such a request until 30 June 2009 which was not effective until received by the Secretariat on 6 July 2009.

4. The Claimant's letter of 30 April 2009 was a request for amicable resolution failing which the Claimant would commence an arbitration.

5. The Claimant either ought to have written earlier so that if the Respondent did not respond to the request for amicable resolution within the 14 day period, the Claimant could then have commenced an arbitration in time or it might have been able to apply to the High Court under [the applicable law].

6. The policy underlying the Contract was that of the law as set out in … the Limitation Decree. The Respondent submitted:

The basic policy behind that law is that defendants should not be perpetually at risk of proceedings being brought, and should not have to defend stale claims. Fixed periods set out in the contracts have been laid down for bringing various categories of cases and arbitrations to end early at a reasonable time.

7. Reference was also made to Howden & Co. v. Powell Duffryn Steam Coal Company 1912 S.C. 920; Neodox v. Swinton & Pendlebury Borough Council (1958) 5 BLR 34; Concrete Developments Ltd v. Queensland Housing Commission [1961] Qd.R 356 and to Keating on Building Contracts, 7th ed., pages 514 and 516 which refer to a provision in the English Arbitration Act 1996 which is comparable to [the applicable law].

8. The question of jurisdiction is a matter of law. The Contract stated that in case of any dispute the laws to be used are [those of the applicable law]. The [state court in the country whose law was applicable] had jurisdiction to determine such a dispute.

9. Therefore the Respondent was entitled to go to the [said court] to have the point of law decided.

10. The [said court] had issued a temporary injunction to the ICC not to proceed with the matter until the matter was concluded.

11. The Arbitral Tribunal ought not to decide the issue.

Claimant's case

108. The Claimant's case is set out in its submissions of 31 October 2010 and 17 July 2013.

(a) Submissions of 31 October 2010

109. The Claimant maintained that its letter dated 30 April 2009 was tantamount to a referral of the dispute to arbitration. The dispute arose from the Adjudicator's Decision. The Respondent took ten days to respond to the Claimant's letter of 17 April 2009 by its letter dated 27 April 2009. In its letter the Respondent refused to pay the amount claimed by the Claimant, being the amount awarded by the Adjudicator's Decision. That led to the Claimant's letter dated 30 April 2009.

110. The Claimant's letter of 30 April 2009 "in addition" invited the Respondent to arrange a meeting with it to discuss possible amicable settlement. This invitation did not detract from or otherwise affect the letter of 30 April 2009.

111. The Claimant complied with Clause 25.2 (GCC). That clause presupposes that there is in existence a "dispute" to be referred "within 28 days" of the Adjudicator's Decision. That is precisely what happened. Only when the Respondent's letter dated 27 April 2009 was received by the Claimant that a dispute (for the purposes of Clause 25.2) came into existence between the Claimant and the Respondent. It was only as at 27 April 2009 that there was a dispute in existence. The Claimant then referred that dispute by its letter dated 30 April 2009.

112. The Claimant submitted that the rationale for the notice of referral to arbitration was to make the other party aware that the arbitration clause has been invoked that the dispute was proceeding to arbitration. That purpose is achieved by the Claimant's letter of 30 April 2009.

113. The invocation of the arbitration clause encompassed not only the Claimant's claim which was the subject of the Adjudicator's Decision but also all other claims and disputes subsisting and arising between the Claimant and the Respondent. In the circumstances as at and after the date of 30 April 2009 the question of the referral having been made "out of time" or being "null and void" with reference to Clause 25.2 could not arise.

114. The Claimant then wrote to the ICC on 18 June 2009 and on 30 June 2009 under the reference "Request for Arbitration". In the Claimant's letters dated 15 July 2009 and 26 July 2009 the Claimant correctly submitted that it had referred the matter to arbitration in accordance with Clause 25.2 (GCC).

115. Clause 25.2 (GCC) does not require that arbitration proceedings be filed within 28 days of the Adjudicator's Decision but simply requires that the dispute shall be referred to arbitration within 28 days of the Adjudicator's Decision. That is what the Claimant did.

116. As regards the Respondent's authorities, the Claimant submitted that [the appeal court decision] was a decision about the Civil Procedure Rules of [the country whose law was applicable] that are only applicable to court matters, and not arbitration. The reference to the Limitation Decree under the laws of [that country] was irrelevant as any applicable time limit must emanate from the contract itself. Therefore the purported "basic policy argument behind that law" was also misconceived, irrelevant and of no consequence to the present dispute.

117. The Claimant submitted that Howden & Co. v. Powell Duffryn Steam Coal Company supported its case. The Scottish Court of Session had held the proviso to the arbitration clause did not require a notice of arbitration to be given within 7 days but rather notice of the existence of a dispute and that a dispute between two parties could not arise unless there was actually a disagreement. The Court of Session also found that the manufacturer's letter of refusal to accept the rejection itself signalled the requisite notice of the existence of dispute.

118. The Claimant submitted that the facts of Neodox Ltd v. Swinton and Pendlebury Borough Council were far removed from the present dispute. In that case the contractor submitted a claim at the end of the contract and provided no notice of arbitration or of it being dissatisfied with the engineer's decision within 28 days of it having received the engineer's decision as required under Clause 51 of the relevant contract. The contractor being dissatisfied with the engineer's decision but having failed entirely to give notice of arbitration within 28 days was therefore held to be out of time to bring the claim. The Claimant however gave the notice within 28 days of the Adjudicator's Decision and made the referral within just three days of the dispute actually coming into existence.

119. The Claimant contended that Concrete Developments v. Queensland Housing Commission was distinguishable. The contract contained a clause that required notice of any claim or question to be given before 14 days "after the making or arising thereof". It therefore required the existence of a dispute, albeit expressed as a claim or question. In that case the contractor made the demand on 15 April 1953 which was rejected on 15 May 1953. Applying the principles in Howden the Court held that the claim or question (dispute) had arisen on the date of receipt by the contractor of the letter of 15 May 1953. Therefore, the notice given on the 13 July 1954 was held to be out of time. Those facts were not comparable to the present dispute.

120. The Claimant submitted that the key issue in both Howden and Concrete Developments was: when did the dispute itself arise? Time was computed from that date. A similar approach was adopted by the English Commercial Court in Marc Rich Agriculture Trading SA v. Agrimex Ltd [2000] EWHC 193 (Comm). The Commercial Court held that the correct question was whether the dispute arose on or before 21 April 1998 (i.e. more than 90 days before the date of the arbitration notice). In that case the Court was of the view that, even where the recipient party had not expressly rejected the demand or invoice, silence by the recipient was capable of giving rise to a dispute.

121. The Claimant also relied on authorities cited and applied in that case, namely The M. Eregli [1981] 2 LL Rep. 169; Ellerine Brothers Ltd v. Klinger [1982] 1 WLR 1375; and The Messiniaki Bergen [1983] 1 LL Rep. 424 in which Bingham J stated, "I am reluctant to attempt any legal definition of a term so well understood ... as dispute. It plainly indicates that a controversy or contention has arisen between the parties. It takes two to quarrel."

122. The Claimant submitted that it would be unconscionable to shut out a lay person acting for itself (as the Claimant was at the time) from the arbitral process because of a mere technicality that caused no prejudice to any party involved.

123. The Claimant further submitted that Section 12 of the English Arbitration Act 1996 had no application.

(b) Submissions of 17 July 2013

124. The Claimant submitted that its main submissions were supported by passages in the award in ICC Case 4862 (which it highlighted). It also submitted that its case in relation to the injunction issued against it … was supported by passages in Mr Jarvin's commentary at 6 ICLR 49 and 54.

125. It further contended that its main submissions were also supported by Mr Jarvin's commentary on ICC Case 5029 and 5634 (which it highlighted) and passages in the award in Case 5029 (1986) 3 ICLR 473-475, in particular the view that, "A time bar for resorting to arbitration, as for litigation, is a very serious matter" and that it is a very serious matter for a tribunal to shut out a litigant from prosecuting its claim.

126. The Claimant maintained that the decision in ICC Case 4707 (1986) 3 ICLR 470 was distinguishable on the facts since the Claimant's letter of 30 April 2009 had stated: "This serves as our notice to commence arbitration with respect to the adjudicator's decision."

127. The Claimant further relied on the discussion by and views of Mr Seppala at (1986) 3 ICLR 316-317 of The International Construction Law Review in support of its proposition by analogy that it was the duty of the Project Manager, as agent of the Respondent, fairly and properly to exercise his "quasi-judicial powers and duties for settling the contractor's claims for extensions of time", and that the Project Manager had failed to do so. The Claimant also relied on passages in Mr Seppala's paper at pages 320 and 331.

128. In addition the Claimant relied on passages in the leading speech of Lord Wright in A/S Rendal v. Arcos Ltd at pages 292-294.

VI. Discussion and decisions

129. The Arbitral Tribunal considers that the Respondent's objection and the Claimant's contentions in answer to it primarily raise questions about the interpretation of the Contract. In its letter of 28 June 2013 the Arbitral Tribunal asked the parties to say if the key issues were not as follows:

(1) Whether under the Contract there has to be an identifiable dispute about an Adjudicator's decision before the obligation arises to give a notice within 28 days.

(2) Do the words "Either party may refer a decision of the Adjudicator to an Arbitrator ..." mean:

(c) that because the ICC Rules of Arbitration apply (by virtue of cl. 25.3) a reference "to an Arbitrator" requires the filing of a Request under Art. 4 of the ICC Rules (Art. 4.2 says that an arbitration is only commenced on the receipt of such a request); or

(d) that all is needed is notice of an intention to resort to arbitration.

130. The Respondent did not reply to the Arbitral Tribunal's request, and the Claimant in its submissions of 17 July 2013 did not suggest any alternatives. The Arbitral Tribunal will therefore first consider these issues and their consequences.

A. Key Issue (1):

Whether under the Contract there has to be an identifiable dispute about an Adjudicator's decision before the obligation arises to give a notice within 28 days.

131. The Arbitral Tribunal considers that the answer to this issue is: No, for the following reasons.

132. First, the scheme of Clauses 24 and 25 (GCC) of the Contract is clear and simple. Clause 24 is headed "Disputes". Although Clause 24.1 does not itself refer to a dispute, Clause 25.1 requires the Adjudicator to give a decision within 28 days of receipt of a notification of a dispute. Reading both clauses together, it is clear that the Contract envisages that the circumstances which led the Contractor to believe that "a decision taken by the Project Manager was either outside the authority given to the Project Manager by the Contract or that the decision was wrongly taken ..." will create a dispute between the Contractor and the Employer. The Project Manager is appointed by the Employer (see the definition in Clause 1.1(u) (GCC)). Clause 4 (GCC) states: "Except where otherwise specifically stated, the Project Manager shall decide contractual matters between the Employer and the Contractor in the role representing the Employer." Accordingly, since the Project Manager represents the Employer in taking a decision, there is a dispute with the Employer for the purposes of Clauses 24 and 25 (GCC) once the Contractor has formed a belief that a decision taken by the Project Manager was unauthorized or wrongly taken.

133. Second, in so far as it is relevant, this interpretation is confirmed by the Claimant's First Request for Adjudicator's Decision dated 7 February 2009, … which states that "Section 2 outlines and defines the dispute which is referred to the Adjudicator. This is to show that there is a dispute which has not yet been resolved and is the basis of the Adjudicator's jurisdiction. It describes the Contractor's claim, examines its salient features and consolidates the same presenting an executive summary for the Adjudicator."

134. Third, Clause 25.2 is constructed similarly. The second and third sentences have to be read together: "Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision shall be final and binding." The provision is clear: the Adjudicator's decision is final and binding unless notice is given by one of the parties to the Contract within 28 days. The policy is equally clear: within 28 days there has to be finality and certainty; either the decision resolves the dispute or it does not. The clause therefore envisages that, upon receiving the decision, the Contractor and the Employer will each read it and each will decide whether or not it is acceptable. If it is not, then necessarily that party has a dispute about it. It must therefore give the requisite notice.

135. It may be that both parties do not like the decision. For example, in this case, the Adjudicator might have decided that in one instance the Contractor was entitled to an extension of time and an amount of money. If the Employer thought that the Adjudicator had erred it would have to give notice. The Contractor would also have to give notice in relation to its claims which the decision rejected.

136. It is also obviously open to one party to tell the other, once notice has been given, that it does not challenge the dispute, i.e. there will be agreement that the Adjudicator erred.

137. Fourth, the Arbitral Tribunal does not accept that some fresh identifiable dispute has to exist before the notice is given, e.g. as suggested by the Claimant. The clause is designed to be operated simply and unilaterally. It is directed to ensuring that within a relatively short time each party knows where it stands in relation to the decision: does the other accept it or reject it? It does not require there to be an exchange of views between the parties about the effect of a decision. Clause 25.2 says: "If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision shall be final and binding." The words "within the above 28 days" refer to "within 28 days of the Adjudicator's written decision", i.e. the decision, not a dispute between the parties about the decision.

138. Fifth, for example, let us assume the decision required a payment be made to the Contractor. It asks the Employer to pay. It gets the reply from the Employer: "I am studying the decision." It asks again and gets the answer: "I can't still say - I need legal advice." The 28 days then expires. Some considerable time later the Employer says that it will not pay and gives the requisite notice on the grounds that only then had there been a "dispute" with the Contractor. The Arbitral Tribunal considers that the Contractor would be right in saying that the Employer was too late, on the grounds that within 28 days of the decision it was entitled to know if it was final and binding.

139. Sixth, thus the Arbitral Tribunal rejects the Claimant's contention that the 28 day period only started when the Respondent's letter was sent to and received by the Claimant, i.e. on or after 27 April 2009. The period within which a notice required by Clause 25.2 (GCC) had to be given started on 2 April 2009.

B. Key Issue (2):

Do the words "Either party may refer a decision of the Adjudicator to an Arbitrator ..." mean:

(a) that because the ICC Rules of Arbitration apply (by virtue of cl. 25.3) a reference "to an Arbitrator" requires the filing of a Request under Art. 4 of the ICC Rules (Art. 4.2 says that an arbitration is only commenced on the receipt of such a request); or

(b) that all is needed is notice of an intention to resort to arbitration.

140. The general policy arguments for and against (a) and (b) were well set out by Mr Sigvard Jarvin in his commentary on the Award in ICC Case 4862 at (1989) 6 ICLR 54(55. In summary they were as follows, as applicable to the contract in this case.

Arguments for (a) (and against (b))

141. A fixed period has the object of the prompt settlement of claims. That object would be completely destroyed if it had to be interpreted in a sense which would lead to delay or to impede the settlement of disputes. The intention of the clause is to make arbitration possible so long as the decision of the Adjudicator has not become final and binding.

142. The opposite view would mean that a simple email or letter telex but without truly commencing an arbitration proceeding would have the effect of making the decision of the Adjudicator ineffective. This is not compatible with the rest of the clause because there would be no binding decision and neither would the case be the subject of an arbitration.

143. If a party could "require" an arbitration without really commencing it, what would be the position once an arbitration has been "required" but before it has been commenced? The Adjudicator's decision on the dispute would not be definitive and binding nor submitted to arbitration. Furthermore when would the arbitration commence? There would be no limit at all to the period. It is not in accordance with a clause whose object is to promote the prompt and final settlement of disputes. To interpret "require" as necessitating a Request for Arbitration to be addressed to the ICC Court would be compatible with the speedy and prompt settlement of requests.

Arguments against (a) (and for (b))

144. Given that many contracts generate a variety of disputes at different times, if it were necessary to submit a formal Request to the ICC Court to avoid binding decisions, it would be necessary to commence several arbitrations at different times to meet the 28 day time limit. Parties contemplating arbitration in a construction contract would prefer to defer a decision on whether to resort to arbitration until the results of the Adjudicator's decisions on all the claims and counterclaims are known. It is at this stage that the parties will want to review the situation, before deciding whether to incur the considerable expense and the other disadvantages and risks of undertaking an arbitration. The contrary view would insist on frequent formal requests, the payment of several preliminary advances for costs, as required by the ICC Rules, with different time limits for the production of different replies/responses and the possibility that different arbitrators will be appointed.

Mr Jarvin's view

145. Mr Jarvin was a former General Counsel of the International Court of Arbitration of the ICC. His opinion was as follows:

We think that the difficulties envisaged by the solution which asks for a Request for Arbitration to be presented to the ICC within a [fixed] period are somewhat exaggerated.... Repeated Requests for Arbitration can weigh more heavily on the Claimant's cash flow than one single request made at the end of the contract. However, the more important consideration, in our opinion, is the interests of clarity at all times between the Employer and the Contractor concerning which decisions of the Engineer are to be contested or accepted, as binding.

The answer which requires only a simple notification of intention to go to arbitration can weigh very heavily on a party which risks living with uncertainty for years and years, in the worst cases, before knowing definitely whether its opposite number, having made such a notification, is going to decide for or against arbitration procedure.

146. These comments were made about arbitral decisions on contracts that were not the same as this Contract, although they had the same feature, namely a tiered dispute resolution procedure that required disputes first to be referred to a person (usually "the Engineer") whose decision would be given within a fixed period and which would be final and binding unless the party dissatisfied with the decision invoked arbitration within a defined period. The Arbitral Tribunal firmly bears in mind that it has to reach its decision on the wording of this Contract.

147. The Arbitral Tribunal considers that the answer to Key Issue (2) is that a reference to an Arbitrator in Clause 25.2 requires the filing of a Request for Arbitration under Art. 4 of the ICC Rules of Arbitration within 28 days of the Adjudicator's written decision (as decided above), for the following reasons.

148. First, the Arbitral Tribunal has already concluded that Clause 25 is directed to ensuring that within a relatively short time each party knows where it stands in relation to the decision: does the other accept it or reject it? The Arbitral Tribunal considers that this means that each party is entitled to know whether or not the other party is so dissatisfied with the Adjudicator's decision that it is going to resort to arbitration.

149. Second, Clause 25 says:

25.2. ... Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision shall be final and binding

25.3. The arbitration shall be conducted in accordance with the arbitration procedures published by the institution named and in the place specified in the SCC.

The Arbitral Tribunal considers that the use of the verb "refer" indicates more than a simple intention to go to arbitration at some time in the future but denotes the formal reference to arbitration so that, when Clauses 25.2 and 25.3 are read together with the designation of the ICC Rules in the Special Conditions of Contract, "refer" and "refers" in Clause 25.2 mean the filing of a formal Request for Arbitration under Article 4 of the ICC Rules. That Article states:

A party wishing to have recourse to arbitration under the Rules shall submit its Request for Arbitration ... to the Secretariat.

150. Third, Article 4.2 of the ICC Rules says that an arbitration is only commenced on the receipt of a Request for Arbitration. A "reference" to arbitration is the start of the arbitration, so since Clause 25.3 requires the arbitration to be conducted in accordance with the ICC Rules, the submission of a Request constitutes the start of and reference to arbitration.

151. Fourth, the Arbitral Tribunal does not consider that it would be difficult to comply with the ICC Rules within the 28 day period such that the Claimant's interpretation is to be preferred. All that is required is the submission of a Request for Arbitration which is a relatively simple document to prepare. The ICC Rules have been drafted so that they can be met without the need for legal advice (and indeed many cases are successfully started by parties without taking legal advice). In any event the Arbitral Tribunal is satisfied that a Request is required, so it is irrelevant that it might be not easy to meet the requirements of the Contract.

152. Fifth, it would not be enough for there to be a mere notice of intention to arbitrate since the party that is content with the decision would not know when that arbitration would start and has no obvious means of compelling the dissatisfied party to invoke arbitration within any defined period. There would be uncertainty that might continue for a long time whereas the Arbitral Tribunal considers that the object of the dispute resolution procedure is that there should be certainty: each party should know where it stands.

153. Sixth, the Arbitral Tribunal considers that the requisite certainty can only be effectively achieved by submitting a formal Request for Arbitration to the ICC Court. That both signifies the intention of the dissatisfied party that the dispute will have to be resolved by arbitration and indicates to the other party that the decision of the Adjudicator will not be final and binding on the expiry of the period of 28 days. In addition the requirement to pay a filing fee to the ICC Court provides an earnest of intention. Furthermore once served, the respondent becomes a party and, if necessary, can apply to the arbitral tribunal for the proceedings to be pursued expeditiously should the claimant not do so, which it could not do if the requirement was only to give notice of intention to arbitrate.

154. The Arbitral Tribunal notes that the tribunal in ICC Case 4707 described as "convincing" and endorsed the expert opinion of Mr Christopher Seppala who said amongst other things:

... If a party can "require" arbitration without actually commencing arbitration, what is the status of the matter after arbitration has been "required" but before it has been commenced? The decision on the matter would neither be final and binding nor in arbitration. Moreover, when would the arbitration commence? There would be no time at all. This is not in harmony with a clause designed to promote the expeditious settlement of disputes.

The paper by Mr Christopher Seppala on "Pre-Arbitral Procedure on the Settlement of Disputes under the FIDIC Conditions" (1986) 3 ICLR 316 is naturally to the same effect.

155. The Arbitral Tribunal prefers the conclusion of the tribunal in Case 4707 to the decisions in the other cases which the parties were invited to consider (4862, 5029 and 5864) since the arguments for and against were set out with care and lucidity and the experts who presented them were amongst the most distinguished at that time. In addition to Mr Seppala, opinions were presented from Mr I.N. Duncan Wallace QC, Mr Donald Keating QC and Mr John Ward.

156. Seventh, as already indicated, a crucial part of the dispute resolution procedure in Clause 25 is that at the end of 28 days the Adjudicator's decision becomes final and binding unless there has been a reference to arbitration. If only a non-formal reference were sufficient, what would be the status of the decision? The Arbitral Tribunal considers that, looking at Clause 25 as a whole, the intention is that the party entitled to the benefit of the decision should get that benefit within a short time and be in a position to enforce it - most probably by action in the Courts if there was no reference to arbitration as there would be no dispute referable to arbitration - or in the arbitration itself as a counterclaim (or defence).

157. Eighth, the Arbitral Tribunal does not consider that uncertainty as to the time when the arbitration is to be commenced can be overcome by implying a term, for example, that the Request for Arbitration is to be submitted within a reasonable time of the reference. There would be further uncertainty about the length of that time. A dispute about its length would have to be referred to the Adjudicator and thence, to arbitration. Such ancillary proceedings are inconsistent with the purposes of Clause 25 which is obviously to provide swift and business-like dispute resolution. Such a term is neither necessary nor desirable and could not be seen as part of the parties' presumed, but unexpressed, intentions.

158. Finally, the Arbitral Tribunal does not consider that the passages relied on by the Claimant from the leading speech of Lord Wright in A/S Rendal v. Arcos Ltd (1937) 58 LL L Rep. 287 at pages 292(294 assist it, as the terms of the contract then being considered were different and the issue concerned the giving of "notice of claim".

VII. Conclusions

159. The Arbitral Tribunal therefore concludes that the Claimant's letter of 17 April 2009 and in particular its letter of 30 April 2009 did not meet the requirements of Clause 25.2 of the Contract and that the Claimant's Request for Arbitration dated 30 June 2009 (but which has to be treated as received on 13 July 2009) was submitted after the expiry of the 28 day period provided by Clause 25.2 of the Contract.

160. The Arbitral Tribunal further concludes that, as a result, the Adjudicator's Decision of 2 April 2009 is final and binding on the parties. The Claimant was therefore not entitled to refer it to arbitration.

161. The Arbitral Tribunal further concludes that, therefore, it does not have the power or jurisdiction to decide the claims … made by the Claimant which were the subject of its Request for Arbitration … except in so far as there may be a dispute as to whether the Respondent has complied with the Adjudicator's Decision. In its letter of 27 April 2009 the Respondent maintained that the additional costs with regard to the first extension of time determined and awarded by the Project Manager's letter of 24 August 2006 have been paid by Interim Payment Certificate 13 of 5 December 2007. In its letter of 30 April 2009 the Claimant contended that they had not been so paid. Subject to that exception the Claimant's claims fail for lack of power or jurisdiction to decide them.

162. The Arbitral Tribunal therefore concludes that, subject to the exception noted in paragraph 161 above, the Claimant's claims are to be dismissed for lack of power or jurisdiction to decide them.

For the reasons set out above the Arbitral Tribunal declares and awards:

1. That the Adjudicator's Decision of 2 April 2009 is final and binding on the parties and thus this Tribunal has no power to reconsider it.

2. That the Arbitral Tribunal does not have the power or jurisdiction to decide the claims made by the Claimant which were the subject of its Request for Arbitration … except in so far as there may be a dispute as to whether the Respondent has complied with the Adjudicator's Decision.

3. That, subject to the exception in paragraph 2 above, the Claimant's claims are dismissed for lack of power or jurisdiction to decide them.

4. That all other claims by either party, including claims in relation to the costs of the arbitration, are reserved for further award.'