'The Claimant's position

53. Pursuant to the Claimant there is no issue between the Parties over the fact that the scope of the arbitration is limited to the question of whether the Claimant is entitled to an award of damages for breach of Sub-Clause 20.4. of the GCC. In other words, the underlying merits, at least with regard to the DAB Decisions Nos. 1 to 3, are not within the scope of this arbitration. The Sole Arbitrator is simply requested to make an award for payment of the principal amounts awarded in DAB Decisions Nos. 2 and 3 together with financing charges, which are payable as damages for breach of Sub-Clause 20.4 of the GCC.

54. Clause 20 of the FIDIC forms does not contain specific provisions for the referral to arbitration of binding but non-final DAB decisions, unlike binding and final DAB decisions. The Claimant maintains that it pursued a prudent course in referring the matter of non-payment of DAB Decisions back to the DAB before arbitration, and considers that there is no doubt over the Sole Arbitrator's jurisdiction.

55. The Sole Arbitrator has jurisdiction to make the award requested by the Claimant as follows: (i) Sub-Clause 20.4 of the GCC provides that the parties should promptly give effect to DAB decisions; (ii) there are four valid and therefore binding DAB Decisions in the present case, three of which make directions for payment; (iii) the Respondent's failure to make any of the payments ordered by the DAB, and therefore to comply promptly with the DAB Decisions, constitutes a breach of contract that gives rise to a dispute; (iv) this dispute is no different in nature from any other arising under the Contract, and therefore falls within the scope of "any dispute in respect of which the DAB's decision (if any) has not become final and binding" in Sub-Clause 20.6 of the GCC.

56. This matter therefore, in the view of the Claimant, falls clearly under the Sole Arbitrator's jurisdiction under Sub-Clause 20.6. of the GCC.

57. The wording of Sub-Clause 20.6 of the GCC is clear: "The arbitrator(s) shall have full power to open up, review and revise ... any decision of the DAB […]". Thus, an arbitrator has the power, but is under no obligation, to review the merits of a DAB decision. This means that, contrary to the Respondent's case, an arbitrator's jurisdiction under Sub-Clause 20.6 of the GCC does not only arise if as part of the arbitration the arbitrator is requested to "open up, review and revise" the DAB decision that has given rise to the arbitration. In other words, there is no obstacle to the arbitrator making an award solely in relation to the failure to comply with a DAB decision where that is the sole matter referred to arbitration.

58. In any event, it is arguable that even if the arbitrator was under an obligation to "open up, review and revise" the DAB decision, in our case this would be Decision No. 4, and not Decisions Nos. 2 and 3 in which the DAB considered and decided on the issues in relation to which financial awards were made.

59. However, in the present case there is no need to consider how the award should be qualified - it is simply an "award". As it will be the sole award issued by the Sole Arbitrator it will, by definition, be a final award.

60. However, it is not a final award in the sense of an award that deals once and for all with the merits of the underlying issues, and which the Respondent cannot challenge on its merits. It will simply be a final award on the limited issue of non-compliance with an obligation to pay amounts decided by the DAB. It remains possible, in principle, for the Respondent to start arbitration proceedings to "open up, review and revise" the DAB Decisions in question. In other words, the final award, that the Sole Arbitrator is requested to render, may, in effect, only be interim, in so far as the Respondent is able to obtain an award on the underlying merits that effectively requires the Claimant to pay back amounts paid by the Respondent by virtue of the arbitral award issued in the present case.

61. This final award sought by the Claimant will, as explained above, be an award of damages for breach of contract. In the present case the Claimant is seeking enforcement via an award of damages. Due to the specific nature of this case, and since the final award that the Sole Arbitrator is requested to issue will not resolve the matters "once and for all", but leave the door open for what would effectively be an appeal on the merits, then the damages award is quite properly sought in order to "enforce" the DAB decisions ...

………

The Respondent's position

68. Respondent summarized its position in its Post-Hearing Brief and submitted that any referral of a binding but non-final decision to arbitration must be made under Sub-Clause 20.6 of the GCC and must necessarily involve the Sole Arbitrator in reviewing the underlying merits of the relevant DAB decision or decisions. The nature and extent of the arbitrator's jurisdiction cannot be ascertained without reference to the wording of both Sub-Clause 20.6 and 20.7 of the GCC in their entirety. As indicated above, the Respondent's position remains that, given the Claimant's failure to refer the underlying merits to the Sole Arbitrator in accordance with Sub-Clause 20.6 of the GCC, the Sole Arbitrator does not have the necessary jurisdiction to proceed in this matter as the Claimant requests. The only way that the Sole Arbitrator can deal with this matter is to dismiss the claim with costs.

69. The Respondent disagreed with the DAB Decisions Nos. 1, 2, 3 and 4 and gave notices of dissatisfaction.

………

Facts determined by the Sole Arbitrator

………

76. The Contract includes inter alia the Conditions of Contract for Works of Civil Engineering Construction, Part 1 - General Conditions, First Edition 1999 published by FIDIC/Fédération Internationale des Ingénieurs-Conseils ... These GCC remain fully applicable unless they allow the Particular Conditions separately agreed by the Parties to stipulate otherwise ...

77. Sub-Clause 20.1 of the GCC reads as follows:

If a dispute (of any kind whatever) 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 Engineer, either Party may refer the dispute in writing to the DAB for its decision, with copies to the other Party and the Engineer. Such reference shall state that it is given under this Sub-Clause.

78. The Claimant as the Contractor made four Referrals to a three-person Dispute Adjudication Board ("DAB") pursuant to Clause 20 of the GCC with regard to disputes that were arising out of the Contract. The DAB by rendering four DAB Decisions (hereinafter the "DAB Decisions Nos. 1, 2, 3 and 4") decided on each of the Claimant's Referrals.

79. Throughout this Arbitration the Claimant stressed that the present Arbitration relates to a breach of Contract on behalf of the Respondent that resulted from the Respondent's failure to comply with the earlier DAB Decisions Nos. 2 and 3.

80. In particular the Claimant described the scope of the dispute in this Arbitration as follows:

There is no issue between the parties over the fact that the scope of the arbitration is limited to the question of whether the Claimant is entitled to an award of damages for breach of Sub-Clause 20.4. In other words, the underlying merits are not within scope of this arbitration. The sole Arbitrator is simply requested to make an award for payment of the principal amounts awarded in DAB Decisions Nos. 2 and 3 together with financial charges, which are payable as damages for breach of Sub-Clause 20.4. ...

This arbitration has been commenced by the Claimant in order to obtain compensation for the Employer's failure to comply with previous DAB Decisions Nos. 2 and 3.

Such compensation consists of the actual damages suffered by such non-compliance, namely the principal amount which has become due to the Claimant based on such decision and which the Employer has failed to pay in breach of the Contract provisions, and the interest calculated on such amount. ...

[…] A single award is to be made and will therefore be a "final" award by definition. However this does not prevent the Respondent from starting arbitration proceedings to have the underlying issues decided by the DAB examined by an arbitral tribunal. In that event the award sought in the present arbitration may well prove in actual effect to be only provisional; […] ...

81. Therefore, the Claimant in this arbitration is seeking:

[…] a decision that the Respondent was in breach of contract […] and that the previously awarded amounts were to be paid immediately to the Claimant. This is the relief sought by the Claimant in the present arbitration and Referral No. 4 was started simply as a prudent preliminary step in order to obtain an arbitral award ordering immediate payment. ...

This arbitration relates to a single issue, namely the failure of the Employer to comply with its contractual obligation to pay the amount awarded under a DAB decision. ...

82. The breach of Contract, which in the view of the Claimant is relevant here, was determined by the DAB Decision No. 4 …

Notice of dissatisfaction

83. Pursuant to Sub-Clause 20.4 of the GCC either Party may give notice to the other Party of its dissatisfaction with a DAB's decision. Where such notice of dissatisfaction has been given and no amicable settlement between the Parties has been reached, the dispute shall be finally settled by international arbitration pursuant to Sub-Clauses 20.5 and 20.6 of the GCC.

84. The Claimant issued a notice of dissatisfaction with the DAB's Decision No. 4 on 20 November 2009, wherein it inter alia stated: ...

The Decision is accepted by the Contractor insofar as it confirms that the Employer is in breach of Sub-Clause 20.4 of the General Conditions of Contract in failing to comply with earlier decisions of the Dispute Adjudication Board.

The Contractor's dissatisfaction relates to the Dispute Adjudication Board's award of damages. The Contractor considers that there was no basis for the Dispute Adjudication Board to make an award. It maintains that it is entitled to full compensation in relation to the above-mentioned breach of contract on the part of the Employer, and reserves the right to refer to the Dispute Adjudication Board a properly detailed assessment of such damages in due course if necessary.

85. Also the Respondent issued a notice of dissatisfaction in relation to the DAB's Decision No. 4 on 23 November 2009, wherein it inter alia stated: ...

Our dissatisfaction relates to the fact that, as continuously emphasized by us, we consider that the DAB had no jurisdiction regarding the issues contained in the Referral No.04.

86. As the DAB's Decision No. 4 decided that the Respondent failed to comply with the earlier decisions of the DAB, the DAB Decisions No. 1, No. 2 and No. 3 are of some relevance for the interpretation of DAB Decision No. 4 and will be discussed below.

87. Noteworthy, it is undisputed by the Parties in this arbitration that due to the existence of notices of dissatisfaction duly made in respect of each of these DAB Decisions, none of the four DAB Decisions had become final within the meaning of Sub-Clause 20.4 para. 7 of the GCC.

88. While DAB Decision No. 1 merely decides on the admissibility of the Contractor's claims, the DAB Decisions No. 2 and No. 3 concern payment obligations of the Employer towards the Contractor.

………

Respondent's breach of Sub-Clause 20.4 of the GCC

96. The Claimant in this arbitration submitted that the Respondent is in breach of its obligation pursuant to Sub-Clause 20.4 of the GCC, which provides that the DAB Decisions Nos. 2 and 3 "shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award".

………

100. The Respondent did not give effect to any of the DAB Decisions Nos. 2, 3 and 4.

101. The Claimant, now, wishes the Respondent to comply with the DAB Decisions pursuant to Sub-Clause 20.4 of the GCC, which requires each party to give effect to DAB decisions. Therefore, the Claimant in this arbitration is seeking:

[…] a decision that the Respondent was in breach of contract […] and that the previously awarded amounts were to be paid immediately to the Claimant. This is the relief sought by the Claimant in the present arbitration and Referral No. 4 was started simply as a prudent preliminary step in order to obtain an arbitral award ordering immediate payment. ...

102. The FIDIC General Conditions of Contract provide that "any disputes in respect of which the DAB's decision has not become final and binding shall be finally settled by international arbitration" pursuant to Sub-Clause 20.6 Para 1 of the GCC.

103. It is undisputed that due to the existence of validly made notices of dissatisfaction the DAB Decisions Nos. 1, 2, 3 and 4 have not become final and, therefore, in principle all disputes related to these DAB Decisions are eligible to be "finally settled" by international arbitration.

104. In this arbitration the Claimant has on several occasions emphasized that in this arbitration the Claimant does not want the disputes to be decided that were the subject of the DAB Decisions Nos. 2 and 3. The only dispute, which it had referred to in this arbitration, is the failure of the Respondent to comply with the DAB Decisions Nos. 2 and 3 pursuant to Sub-Clause 20.4 of the GCC:

Thus, the Claimant's claims in the arbitration do not extend to the underlying merits of the claims referred by the Claimant to the DAB, namely Referrals Nos. 1 to 3. The Claimant is not asking the Arbitral Tribunal to consider or decide in relation to the merits of those claims. In other words, and for the avoidance of any doubt, this arbitration relates to the sole issue of enforcement of DAB Decisions. ...

105. The Respondent, however, argues that:

[…] the pre-condition for enforceability of a DAB decision under 20.7 is that it must be both binding and final. It follows that any attempt to enforce a binding DAB decision that has not become final, as in this case, must be necessarily be made by a referral to arbitration under 20.6 and must necessarily involve the arbitrator in reviewing the underlying merits as envisaged in that provision.

106. The Sole Arbitrator considers that it follows from the wording of Sub-Clause 20.4 of the GCC that any dispute of any kind whatsoever between the Contractor and the Employer in connection with, or arising out of, the contract or the execution of the works has in the first place to be referred in writing to the DAB for its decision with a copy to the other party and the Engineer. A failure to comply with the dispute procedure set out in Clause 20 of the GCC has the result that the arbitrator's power to decide is limited to the matter which prior to the filing of a request for arbitration have been referred to the DAB for its decision. In short, the essence of a FIDIC based contract is that no arbitration may begin without a DAB's decision (with one exception, if the DAB fails to give its decision within the agreed time limit).

107. The Sole Arbitrator notes that it is clear from the opening phrases of Sub-Clause 20.4 of the GCC (i.e. "[…] a dispute (of any kind whatsoever) […]") that the category of disputes to be referred to the DAB includes breaches of contract.1 The Claimant, by accusing the Respondent of not having made payment in compliance with the DAB Decisions Nos. 2 and 3, thereby exactly reports a breach of contract of the Respondent.

108. The Sole Arbitrator, therefore, holds that a failure to comply with a DAB decision is a breach of contract, and thus a new dispute, that can be referred to arbitration. If, however, such failure is related to a DAB decision that has not become final (due to the existence of a notice of dissatisfaction) then the other party may refer this dispute to arbitration only after having again requested a further DAB decision (20.4 of the GCC) and after another attempt of an amicable settlement or elapse of the cooling-off period, whatever occurs earlier (20.5 of the GCC). 2 Otherwise, the Sole Arbitrator would have no jurisdiction to deal with a new dispute arising out of or relating to the breach of contract by non-compliance of the previous DAB Decisions.

109. It is undisputed and clear that the Claimant referred the dispute about the Respondent's non-compliance with the DAB Decisions Nos. 2 and 3 again to the DAB. The DAB decided on this referral by its DAB Decision No. 4 …

[…] Referral No 4 was started simply as a prudent preliminary step in order to obtain an arbitral award ordering immediate payment. …

110. The Claimant inter alia sought for an "enforcement" of the DAB Decisions Nos. 2 and 3:

[…] this arbitration relates to the sole issue of enforcement of DAB Decisions. …

111. The Sole Arbitrator notes that a DAB decision may be confirmed by an arbitral award, and thus, become enforceable under the conditions of the UN Convention on the Recognition and Enforcement of Arbitral Awards ("NYC"). 3

112. By definition of the Contract any arbitral award is, unlike a DAB Decision, always "final", i.e. not subject to further review by another contractual dispute resolution body. As a conclusion, if e.g. the payment orders of the DAB Decision Nos. 2 and 3 were confirmed by an arbitral award, the latter would be enforceable under the conditions of the NYC.

113. In this present arbitration, however, neither Party sought to have the DAB Decisions Nos. 2 and 3 confirmed or reversed. Therefore the underlying disputes of the DAB Decisions Nos. 2 and 3 are not the subject of this arbitration and cannot be decided (i.e. confirmed or reversed) by the Sole Arbitrator here. The Sole Arbitrator, therefore, just like the Parties has to respect the binding character of the DAB Decisions Nos. 2 and 3.

114. The Claimant's request in this arbitration, however, concerns another dispute, namely, whether the Respondent "shall promptly give effect to it [i.e. the DAB decision] unless and until it shall be revised in an amicable settlement or an arbitral award" (Sub-Clause 20.4 of the GCC). This new dispute could arise only after the DAB Decisions Nos. 2 and 3 were issued and, therefore, this dispute must be considered to be completely different from the disputes that were the subject of the DAB Decisions Nos. 2 and 3.

115. In other words, with its Referral No. 4 the Claimant asked the DAB to give a decision on the Respondent's (new) breach of Contract by failing to give effect to the DAB Decisions Nos. 2 and 3 in accordance with the Sub-Clause 20.4 of the GCC. This dispute, which was decided in the DAB Decision No. 4, is the subject matter in the present arbitration.

116. The DAB correctly summarized the dispute of the Claimant's Referral No. 4 as follows:

20. In summary, [Claimant] seeks the DAB's decision that it is entitled to immediate payment in respect of principal sums awarded by the DAB together with financing charges thereon […] …

117. The Sole Arbitrator finds that the wording of Sub-Clause 20.4 of the GCC is unambiguous and clear: the obligation of a party to give effect to a DAB decision is not dependent on the correctness of the DAB decision. Therefore, the obligation to give effect to a DAB decision is not subject to any further condition. In short words, mere existence of a DAB decision is sufficient to trigger a party's obligation to give effect to it pursuant to Sub-Clause 20.4 of the GCC.

118. If, however, the DAB decision, as it is the case in this arbitration, has not yet become final (because at least one party has given a notice of dissatisfaction with the DAB decision) "the arbitrator shall have full power to open up, review and revise […] any decision of the DAB, relevant to the dispute" pursuant to Sub-Clause 20.6 of the GCC. Insofar the Sole Arbitrator follows the Respondent's position that Sub-Clause 20.7 of the GCC does not apply here.

119. Therefore, the question that needs to be discussed is whether or not the Sole Arbitrator in this arbitration needs to exercise his power under Sub-Clause 20.6 of the GCC, i.e. "to open up, review and revise […] any decision of the DAB, relevant to the dispute".

120. The Claimant requested the Sole Arbitrator not to open up, review and revise the DAB Decisions Nos. 2 and 3:

The wording of Sub-Clause 20.6 is clear: "The arbitrator(s) shall have full power to open up, review and revise .... any decision of the DAB." Thus, an arbitrator has the power, but is under no obligation, to review the merits of a DAB decision. This means that, contrary to the Respondent's case, an arbitrator's jurisdiction under Sub-Clause 20.6 does not only arise if as part of the arbitration the arbitrator is requested to "open up, review and revise" the DAB decision that has given rise to the arbitration. In other words, there is no obstacle to the arbitrator making an award solely in relation to the failure to comply with a DAB decision where that is the sole matter referred to arbitration.

In any event, it is arguable that even if the arbitrator was under an obligation to "open up, review and revise" the DAB decision, in our case this would be Decision No. 4, and not Decisions Nos. 2 and 3 in which the DAB considered and decided on the issues in relation to which financial awards were made. …

121. The Sole Arbitrator holds that in order to determine a breach of contract with respect to Sub-Clause 20.4 of the GCC he has to scrutinize the relevant merits in respect of the alleged breach of contract. For the determination of the relevant merits the Sole Arbitrator deems it, therefore, necessary to read the exact wording of the relevant paragraph in Sub-Clause 20.4 of the GCC:

Within 84 days after receiving such reference, or within such other period as may be proposed by the DAB and approved by both Parties, the DAB shall give its decision, which shall be reasoned and shall state that it is given under this Sub-Clause. The decision shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award.

122. It follows from such wording that a party's obligation to give effect to a DAB decision requires:

1. A reasoned DAB decision, which states that it is given under Sub-Clause 20.4 of the GCC; and

2. that the DAB decision has not been revised by an amicable settlement or an arbitral award.

123. These are the merits or conditions, which the Sole Arbitrator has to scrutinize in order to determine, whether the Respondent had breached the contract by not giving effect to the DAB Decisions concerned.

124. It follows from the above-mentioned conditions in Sub-Clause 20.4 of the GCC that a Respondent is obliged to give effect to a reasoned DAB decision, even if, as the Respondent inter alia argued in this Arbitration, the DAB Decision Nos. 2 and 3 were wrong, because the underlying claims of these Decisions were "contractually wrong, flawed and unproven" … The Respondent, as is clearly stated in Sub-Clause 20.4 of the GCC, would in such a case, however, have the opportunity to file on its own initiative a request for arbitration and have the DAB Decisions revised. Noteworthy, the Respondent in this arbitration did not seek for a revision of the DAB Decisions Nos. 2 and 3. Consequently, only after a revision of the DAB Decisions Nos. 2 and 3 by an arbitral award the Respondent's obligation to give effect to these DAB Decisions would cease: "[…] shall promptly give effect to it unless and until it shall be revised in […] an arbitral award".

125. The existence of the DAB Decisions Nos. 2 and 3 was not disputed by the Parties in this arbitration. … Both DAB Decisions are reasoned and make reference to Sub-Clause 20.4 of the GCC.

126. Both DAB Decisions Nos. 2 and 3 contain an unconditional payment obligation of the Respondent and the Respondent did undisputedly not make payments. The Sole Arbitrator, therefore, concludes that the Respondent had breached the Contract, i.e. the obligation pursuant to Sub-Clause 20.4 of the GCC, and becomes liable to pay damages.

127. The question how a binding but not final decision by a DAB may be given effect was inter alia already discussed by Christopher R. Seppälä on the basis of an interim award in ICC Case No. 10619, an award made in 2001, which had to deal with a similar question, how a final but not binding decision of the Engineer under Clause 67 of the FIDIC Conditions, Fourth Edition (1987) may be "enforced". 4 It is noted that the Respondent in this arbitration also referred to that case …

128. The arbitral tribunal in the ICC Case No. 10619 decided that an Engineer's decision can be given effect by the issuance of an "interim award" and stated that:

If the above Engineer's decisions have an immediate binding effect on the parties so that the mere fact that any party does not comply with them forthwith is deemed a breach of contract, notwithstanding the possibility that at the end they may be revised or set aside in arbitration or by a further agreement to the contrary, there is no reason why in the face of such breach the arbitral tribunal should refrain from an immediate judgement giving the Engineer's decisions their full force and effect. This simply is the law of the contract. 5

129. Noteworthy, there the arbitral tribunal was concerned with the same issue of "[…] giving the Engineer's decisions their full force and effect.", because "This simply is the law of the contract" 6 (emphasis added) and Christopher R. Seppälä in the view of the Sole Arbitrator correctly points out that "the same result should obtain in the case of a decision of a DAB under the 1999 FIDIC Books as was found to apply in Case No. 10619 in the case of decision of the Engineer under Clause 67 of the FIDIC Conditions, Fourth Edition". 7

130. The difference in this arbitration, however, is that in the ICC Case No. 10619 the respondent "request[ed] the Arbitral Tribunal to reverse the Engineer's decision". 8 Therefore, in the ICC Case No. 10619 the arbitral tribunal had to continue the proceedings and scrutinize the underlying merits of the Engineer's decision, thereby taking into consideration that a revision of the Engineer's decision by the arbitral tribunal would also bear the consequence that the defaulting party's obligation (to give effect to the Engineer's decision as confirmed by the interim award) would terminate.

131. This, however, is not the case here. Neither the Claimant nor the Respondent have requested in this arbitration to reverse the DAB Decisions Nos. 2 and 3. Failing such request, the Sole Arbitrator, unlike the arbitral tribunal in the ICC Case No. 10619, does not have "to open up, review and revise" the DAB Decisions Nos. 2 and 3. The Sole Arbitrator, consequently, sees no room for rendering an "interim award" but shall render a final award, however, limited to the issue of the consequences of the Respondent's breach of the Contract by not giving effect to the DAB Decisions Nos. 2 and 3 (Sub-Clause 20.4 of the GCC).

132. The Sole Arbitrator follows the DAB's findings that the Respondent has breached the Contract by failing to comply with the DAB Decisions, the validity of which has not been questioned by the Parties. The DAB correctly stated that the failure to comply with the terms of a DAB decision constitutes breach of contract and gives the Claimant a claim against the Respondent for damages arising from the breach.

133. Clause 20 of the GCC gives the Claimant the express right to refer a dispute related to a claim for payment in connection with the Contract to the DAB (e.g. if the Contract was breached by the Respondent). That is exactly what the Claimant has requested by its Referral No. 4 after the Respondent has failed to comply with the earlier DAB Decisions. Whereas the DAB Decisions Nos. 2 and 3 were decisions that covered entitlements claimed under different contractual provisions and did not concern themselves with the Respondent's breach of the provisions of Sub-Clause 20.4 of the GCC, the breach of an obligation to pay sums awarded by the DAB was dealt with by the DAB Decision No. 4. Hence, the DAB Decision No 4 is different from the earlier DAB Decisions and is based on another legal background.

134. This fact alone that the Respondent did not comply with the payment obligations under the DAB Decisions Nos. 2 and 3 means that the Respondent has itself engaged in a wrongful act and is, therefore, liable for all damages resulting from or in connection with the failure to perform on time or in accordance with the terms of the agreement or not to perform at all. The Claimant has the right to receive the amounts which the DAB has considered due. The Respondent was and is contractually obliged to properly comply with the DAB Decisions immediately as of the moment that the DAB Decisions came validly into existence, unless or until the DAB Decisions were revised by an arbitral award or settlement.

135. A party's failure to fulfil an obligation under a contract constitutes a breach of the contract, which gives rise to an action to remedy the breach. The award sought by the Claimant has to remedy the Claimant's loss which is caused by the withholding of the amounts decided by the DAB. Consequently, the Claimant has to be put in a position such as if the Respondent has properly complied with the DAB Decisions, which means that the Claimant must be fully compensated for the sum or sums that it has lost due to the breach.

……..

Award

The Sole Arbitrator hereby renders the following Award:

1. The Respondent … shall immediately pay to the Claimant [the amount awarded by the Sole Arbitrator comprising the principal sums established by the DAB Decisions Nos. 2 and 3 and related financing charges] plus interest. Interest shall run on the sum [aforementioned] from 1 December 2010 until the date on which payment is made, calculated compounded monthly at the rate three percentage points above the EURIBOR rate for lending with one week maturity.

2. The Respondent … shall pay to the Claimant … the amount of … as an indemnity for the Claimant's share in the advance of costs of the arbitral proceedings as determined by the International Court of Arbitration.

3. The Respondent … shall pay to the Claimant … an amount of … as an indemnity for reasonable legal and other costs.

4. All other claims are dismissed.'

1
See also: E.C. Corbett, FIDIC 4th - A Practical Legal Guide, Sweet & Maxwell (1991), p. 442 (last paragraph).

2
Also see: The FIDIC Contracts Guide (2000), p. 317.

3
See: Article III of the NYC: "Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, […]."

4
Seppälä, "International Construction Contract Disputes: Second Commentary on ICC Awards Dealing Primarily with FIDIC Contracts", in ICC International Court of Arbitration Bulletin - Vol. 19/No.2 - 2008, p. 53.

5
Seppälä, "International Construction Contract Disputes: Second Commentary on ICC Awards Dealing Primarily with FIDIC Contracts", in ICC International Court of Arbitration Bulletin - Vol. 19/No.2 - 2008, p 52 et sequ.

6
Seppälä, "International Construction Contract Disputes: Second Commentary on ICC Awards Dealing Primarily with FIDIC Contracts", in ICC International Court of Arbitration Bulletin - Vol. 19/No.2 - 2008, p. 52 et sequ.

7
Seppälä, "International Construction Contract Disputes: Second Commentary on ICC Awards Dealing Primarily with FIDIC Contracts", in ICC International Court of Arbitration Bulletin - Vol. 19/No.2 - 2008, p. 54.

8
Seppälä, "International Construction Contract Disputes: Second Commentary on ICC Awards Dealing Primarily with FIDIC Contracts", in ICC International Court of Arbitration Bulletin - Vol. 19/No.2 - 2008, p. 55.