'Jurisdiction

392. According to Article 1465 CPC (applicable by reference from Article 1506(3) CPC), the Arbitral Tribunal "has exclusive jurisdiction to rule on objections to its jurisdiction". This is in line with Article 6(2) of the ICC Rules, pursuant to which it is for the Arbitral Tribunal to decide on its jurisdiction. This is not disputed by the Parties.

1. Law governing the validity and interpretation of the Arbitration Clause

a) The Respondent's position

393. The Respondent does not examine this question pursuant to the law of the seat of the arbitration, on the ground that such seat was determined by the ICC on a prima facie assessment of the Arbitration Clause ... The Respondent considers that the Arbitral Tribunal has no authority "under [the] law that might be applicable to the Arbitration Agreement including [the] law of [the] place of arbitration (the seat as determined by International Court of Arbitration, being contested by the Respondent), the law applicable to the Contract and the law of the likely country of enforcement" to interpret the Arbitration Clause pursuant to the Parties' hypothetical intent had they noticed that they had omitted to mention the institution indicated in Sub-Clause 26.6(a) of the GC in the Contract Data ... The Respondent points out that by making this comment, it "is not entering into the issue of determination of [the] lex arbitri, but stresses that whatever be the choice of law applicable to [the] Arbitration Agreement [the] Arbitral Tribunal should always be aware not to jeopardize the existence of the award, either in challenging procedure at the place of rendering or in the enforcement procedure" …

394. The Respondent does not, therefore, take a position regarding the law applicable to the Arbitration Clause.

b) The Claimant's position

395. … the Claimant takes the following position regarding the applicable law:

Claimant is aware that the questions which law and, thus, which rules of interpretation govern an arbitration agreement are subject to constant debate. Respondent has refrained from expressly stating which law and rules, in its view, are applicable. Respondent has merely indicated that these laws "might" include the "law of place of arbitration" the "law applicable to the Contract" and the "law of the likely country of enforcement" ... Claimant is also aware that since the Parties have not expressly stipulated the law applicable to the arbitration agreement the Tribunal has discretion in deciding which rules of interpretation shall apply. Since the place of arbitration is Paris, Claimant suggests that the Tribunal should follow the approach of the French Cour de Cassation in the 1993 Dalico decision [printed in Bulletin 1993 I No. 372 at p. 258] according to which arbitration agreements may be interpreted without reference to any particular national law, but on the basis of internationally recognized principles ("règles matérielles du droit international de l'arbitrage"). This concept was endorsed, inter alia, by the most renowned French scholar Emmanuel Gaillard in paragraphs 472 et seq. of his 1999 textbook Fouchard Gaillard Goldman on International Commercial Arbitration: i.e. in the passages on which Respondent has relied in its previous submissions …

c) Discussion and decision

396. The CPC does not address the law governing arbitration agreements.

397. The Arbitration Clause does not contain any specific choice of law. The Contract Data for Sub-Clause 1.4 of the GC ("Governing Law") provides that the Contract is governed by the law of [the Employer's country].

398. Commentators consider that there should be a presumption that the interpretation of arbitration agreements is governed by the law governing their existence and validity.1

399. Following, inter alia, the 1993 Cour de Cassation's Dalico decision, 2 it has been widely held in France as well as in international arbitral awards that the existence, validity and scope of an arbitration agreement "need only be examined by reference to transnational rules and trade usages" (Fouchard/Gaillard/Goldman, op. cit. paragraph 475, pages 255(256). These rules are the same as those commonly adopted for the interpretation of contracts in national laws. 3 They include (i) the principle of good faith, (ii) the principle of effective interpretation and (iii) the principle of interpretation contra proferentem. 4

400. According to the principle of good faith, "when interpreting a contract, one must look for the parties' common intention rather than simply restricting oneself to examining the literal meaning of the terms used" (Article 1156 of the French Civil Code, cited by Fouchard/Gaillard/Goldman, op. cit., in footnote 76 to paragraph 477).

First, the intention of the parties must be examined in context, that is to say, by taking into account the consequences which the parties reasonably and legitimately envisaged. Second, the attitude of the parties after the signature of the contract and up until the time when the dispute arose should be taken into account, as that attitude will indicate how the parties themselves actually perceived the agreement in dispute (...) Third and finally, the agreement must be interpreted as a whole. This need for an interpretation of the agreement or of its various constituent parts as a whole, bound together by the true intention of the parties, is one of the factors to be taken into account in disputes involving the construction of arbitration agreements contained in related contracts. (Fouchard/Gaillard/Goldman, op. cit., at paragraph 477, pages 257-258)

401. The effective interpretation principle directs that when "a clause can be interpreted in two different ways, the interpretation enabling the clause to be effective should be adopted in preference to that which prevents the clause from being effective" (ibid., at paragraph 478). 5 Accordingly, "an arbitral tribunal interpreting a pathological clause held that: 'when inserting an arbitration clause in their contract the intention of the parties must be presumed to have been willing to establish an effective machinery for the settlement of disputes covered by the arbitration clause'" (Fouchard/Gaillard/Goldman, op. cit., page 259).

402. The contra proferentem principle requires that the agreement be interpreted against the party which drafted the clause in dispute (Fouchard/Gaillard/Goldman, op. cit., at paragraph 479). Consequently, the party responsible for the ambiguous or unclear provision should not be entitled to rely on such ambiguity or lack of clarity (id.).

403. The Arbitral Tribunal will interpret the Arbitration Clause pursuant to these three generally accepted principles. 6

404. For the sake of completeness, the Arbitral Tribunal will also examine if the conclusion reached pursuant to these principles may be confirmed by the same conclusion under … the law governing the Contract.

2. Validity and scope of the Arbitration Clause

405. The Respondent does not argue that the Arbitration Clause is invalid and that the dispute should, therefore, be submitted to state courts. It disagrees with the Claimant's view that the institution that should have been mentioned in the Contract Data is the ICC or that the Parties could have had the ICC in mind when they entered into the Contract.

406. The Respondent does not propose any alternative institution or any practical way to make the arbitration agreement operational. On the contrary, the Respondent takes the overall view that the Arbitral Tribunal should consider that Sub-Clause 20.6 of the GC is "inoperative or incapable of being performed" and thus "eliminated as such from ICC arbitral proceedings". The Respondent reaches this conclusion by reference to Article II(3) of the New York Convention ...

407. The Arbitral Tribunal shall first examine the Parties' submissions on these issues before setting out the reasons for its decision (i) that it has jurisdiction as stated in Procedural Order No. 2 … and (ii) that the ICC Rules are applicable to this case.

a) The Respondent's position

408. The Respondent notes that neither the Contract nor the GC "name an institution under whose auspices the disputes between the Contracting Parties shall be settled" ... The GC indicate that the institution is to be designated in the Contract Data, but these Data are silent on the question. On this basis, the Respondent asserts that the GC, combined with the Contract Data, do not "include any element that may directly link disputes under the Contract to ICC arbitration" or, for that matter, "to Paris as seat of the ICC, or to ICC arbitration in any manner whatsoever" ... As a result, the Arbitration Clause cannot be deemed to be an "agreement under 'the ICC Rules'", which is a prerequisite for the jurisdiction of an arbitral tribunal constituted pursuant to the ICC Rules based on Articles 1(1), 6(1) and 6(2) of the Rules ...

409. In the Respondent's view, Sub-Clause 20.6 of the GC is not ambiguous and does not require interpretation through "measures developed in international commercial arbitration in an attempt to save imperfect arbitration agreements" … The Arbitration Clause is a "pathological clause" which cannot be salvaged through interpretation in favorem validatis arbitration ... The Respondent argues that the principle "in favorem jurisdictionis, even if applied in the widest possible manner, could not lead to [the] interpretation that [the] Contracting Parties have shown their intention to refer disputes under the Contract to ICC or to have the seat of arbitration located in Paris" … The reference to the "term 'arbitration' used in the Arbitration Agreement is too unspecific and remote as to warrant the interpretation suggested by the Claimant that the ICC arbitration has jurisdiction" ...

410. According to the Respondent, neither the Arbitration Clause nor the Contract as a whole contains any element that could be interpreted as the Parties' intention to submit their disputes to ICC arbitration or "which could be upheld to the level of circumstances establishing such jurisdiction" ... Furthermore, the Arbitration Clause cannot be construed as providing for ad hoc arbitration since it is silent on the place of arbitration ... As a result, the Arbitration Clause suffers from an insurmountable deficiency and cannot provide the basis for the jurisdiction of any court to assist in the constitution of the Arbitral Tribunal ...

411. The Respondent considers that the Arbitral Tribunal does not have the power or the authority under any of the laws which might apply to the Arbitration Clause to fill the gap in Sub-Clause 20.6 of the GC and in the Contract Data regarding the institution under whose auspices disputes between the Parties shall be settled by reference to the "hypothetical intent of the Contracting Parties" ... The Respondent alleges that the concept of gap filling does not apply to arbitration agreements, without explaining why or under which law it is addressing the issue ...

412. The Respondent also argues that the fact that Sub-Clause 20.6(a) of the GC states that the designated institution may choose to apply the UNCITRAL Rules of Arbitration indicates that the Parties wanted to exclude the ICC, since the ICC only administers cases carried out under its own Rules ...

413. The Respondent alleges that by referring to ICC arbitration through "extensive interpretation", the Claimant has "resorted to the extension of the arbitration clause, contained in [the] related DB Agreement to the dispute resolution mechanism under the Contract", which is contrary to the basic principles of international arbitration ... The DB Agreement is a contract between third parties. It is ancillary to the Contract, and the arbitration clause it contains cannot be extended to apply to disputes between the Parties under the Contract, which already contains its own "dispute resolution mechanism" ... The reference by the Claimant to the FIDIC General Conditions of Contract does not help, either, because these Conditions were not included in the Contract …

414. The Respondent does not dispute that Sub-Clause 20.6 of the GC is "identical to the arbitration clause in 2006 MDBs Harmonized Contract" … It also accepts that the FIDIC General Conditions "served as the basis for the preparation of Multilateral Development Banks ('MDBs') Harmonized Contract", the first version of which was released in 2005 ... That version contained a provision designating the ICC as the arbitration institution. In the 2006 second version of the Harmonized Contract, however, there was no longer any reference to the ICC as the default institution in case of the parties' failure to designate one ... The Respondent disagrees with the Claimant's view that the ICC remained the default institution in the Harmonized Contract as was subsequently confirmed by the Contract Data contained in the 2010 version of that Contract. For the Respondent, the ICC is only one of the arbitration institutions among which the parties may choose …

415. On this basis, the Respondent considers that the Arbitral Tribunal should base its decision that the Arbitration Clause is "inoperative or incapable of being performed" on Article II(3) of the New York Convention (see, paragraph 406 above).

………

b) The Claimant's position

417. The Claimant submits that Sub-Clause 20.6 of the GC expressly provides for the Parties' clear and common intention to have their dispute settled by institutional arbitration and to fix the seat of such arbitration at the headquarters of the chosen institution ... It further argues that the interpretation of Sub-Clause 20.6 of the GC, read and understood in the context of the Contract as a whole, shows that both Parties intended to have their disputes settled by ICC arbitration ... This is supported by the "facts and the legal documents underlying Sub-Clause 20.6 of the GC", which "confirm that "both Parties must have understood this clause as providing for ICC arbitration" (id.).

418. According to the Claimant, the following facts may clearly be established from the wording of the Arbitration Clause itself:

(i) the Parties intended to have their disputes resolved through international arbitration;

(ii) the arbitration is to be administered by an international institution;

(iii) the place of arbitration is to be at the headquarters of this institution;

(iv) the institution is entitled to decide on the applicable rules (its own rules or the UNCITRAL rules); and

(v) the institution should have been designated in the Contract Data …

419. The Claimant further asserts that the common intention of the Parties to have all of their disputes under the Contract settled by ICC arbitration can be ascertained from both Clause 9 of the DB Agreement and from page 9 of the Contract ...

420. Clause 9 of the DB Agreement, according to the Claimant, shows "the Parties' concurrent understanding to uphold an international arbitration clause even if an institution is not specifically designated. It specifies the ICC as the default institution for such cases. There is no reason to assume that the Parties had a different understanding of Sub-Clause 20.6 of the GC" ... The Claimant highlights that, contrary to what is alleged by the Respondent, it does not suggest extending Clause 9 of the DB Agreement to non-signatories or applying it directly to disputes under the Contract. It considers instead that Clause 9 "is the relevant source for interpretation of Sub­Clause 20.6 of the GC" (CIV, paragraph 20; emphasis in original).

421. Clause 9 of the DB Agreement is an integral part of the contractual documents contained in the Contract and the only provision other than Sub-Clause 20.6 of the GC which deals with arbitration. It is thus "the most reliable source for determining the Parties' understanding of what is to happen if no institution is appointed in the Contract Data" ...

422. The Claimant sees further confirmation of the Parties' intent on page 9 of the Contract … which introduces the GC included in the Contract as "the Bank Harmonized Edition of the Conditions of Contract for Construction prepared and copyrighted by the lnternational Federation of Consulting Engineers (Fédération internationale des ingénieurs conseils, or FIDIC ), FIDIC 2005 - All rights reserved" ... The Claimant emphasizes the reference in this introduction to "FIDIC - 2005" to rebut the Respondent's allegation that the FIDIC Conditions of Contract have not been incorporated either directly or by reference into the Contract ... The 2005 FIDIC General Conditions are set forth in the "FIDIC Pink Book 2005", which contains an arbitration clause expressly providing for ICC arbitration in case the parties fail to appoint an institution in the particular conditions of their contract. This arbitration clause reads as follows:

[If] no arbitration proceedings are so stated, the dispute shall be finally settled by institutional arbitration under the Rules of Arbitration of the lnternational Chamber of Commerce"(clause 20.6 of the FIDIC Pink Book 2005; id.).

423. On this basis, the Claimant finds it reasonable to assume that "the Parties had Clause 20.6 of the FIDIC Pink Book 2005 and not Clause 20.6 of the FIDIC Pink Book 2006 in mind when concluding the Contract", even though it is the language of Clause 20.6 of the FIDIC Pink Book 2006 which is reproduced in Sub-Clause 20.6 of the GC ...

424. According to the contra proferentem principle, should the Tribunal find that the meaning of Sub­Clause 20.6 of the GC is ambiguous because its wording corresponds to the FIDIC Pink Book 2006 although the introductory party [sic] of the GC refers to the FIDIC Pink Book 2005, Respondent should not be entitled to rely on such ambiguity because it was in charge of preparing the contractual documents and provided them to the Claimant and the other potential bidders during the tender process ...

425. In the Claimant's view, this understanding is further confirmed by the history of the negotiations that led to the final wording of the Contract and of Sub-Clause 20.6 of the GC. The World Bank, which partly financed the Project, requested the Respondent to procure the Works in accordance with its Standard Bidding Documents for Procurement of Works ("SBD"). Accordingly, the Respondent's tender documents were issued based on the SBD ... In their relevant 2007 version, the SBD include an arbitration clause in Sub-Clause 20.6 which is identical to Sub-Clause 20.6 of the GC … The "Part A of the Contract Data" for this Sub-Clause 20.6 in the SBD contains the following remark in brackets, addressed to users of this standard form of contract: "[Insert rules of arbitration if different from those of the International Chamber of Commerce]" … This indication demonstrates the World Bank's own understanding that the arbitration clause contained in Sub-Clause 20.6 of its SBD provides for ICC arbitration unless the parties expressly otherwise agree in the Contract Data ... The Claimant considers that the Arbitral Tribunal cannot deviate from this understanding because the World Bank is the drafter of the clause in question ... For the same reason, the Respondent cannot argue "that its understanding of Sub-Clause 20.6 of the GC deviates from the understanding of the World Bank" ... On the contrary, it must be assumed that the Respondent consciously chose not to designate another institution in the Contract Data because it knew that Sub-Clause 20.6 of the GC was meant to provide for ICC arbitration ...

426. The Claimant notes that the Respondent's allegation that Sub-Clause 20.6 of the GC is a "blank clause" incapable of being performed would necessarily mean that all disputes under the Contract would have to be decided by state courts, which is in clear contradiction with the Parties' unambiguous intention to arbitrate their disputes ... Moreover, Sub-Clause 20.6 of the GC is not a blank clause as defined by Fouchard/Gaillard/Goldman, on which the Respondent relies for this definition. According to these authors, a blank arbitration clause is a clause "which contains no indication, whether directly or indirectly to arbitration rules or to an arbitration institution, as to how the arbitrators are to be appointed" (emphasized by the Claimant to indicate the portion of the definition the Respondent omitted to cite …). According to the Claimant, the arbitrators' appointment is not an issue in the present case and has no bearing on the jurisdiction of this Arbitral Tribunal.

427. An arbitration clause such as Sub-Clause 20.6 of the GC can be "safeguarded" pursuant to the "internationally recognized principles of interpretation and interpreted as providing for ICC arbitration proceedings" ... The Claimant refers in particular to the principles of interpretation defined by Fouchard/Gaillard/Goldman, op. cit., at paragraph 486 of their treatise ... It invites the Arbitral Tribunal to examine "'the effects of the acceptance of Respondent's jurisdictional plea", according to which neither any institutional nor any ad hoc [arbitral tribunal] could base its jurisdiction on [Sub-]Clause 20.6 of the GC and any dispute will have to [be] decided by a state court" ... The effective interpretation principle requires that the Arbitration Clause be interpreted "in a way which gives effect to the Parties' joint and common intention to have any dispute settled by arbitration" (id.). This can only lead to the conclusion that the only way to understand the Arbitration Clause is that proposed by the Claimant ...

428. Finally, the Claimant submits that the Arbitral Tribunal has jurisdiction over its claim that the Respondent breached its contractual obligation under Sub-Clause 4.2 of the GC by calling the Performance Guarantee. The Arbitral Tribunal therefore has the power to remedy the consequences of such a breach ... All the Claimant's claims are arbitrable, contrary to what is alleged by the Respondent, and since the DB Agreement "has been mutually terminated by the Parties", the Arbitral Tribunal is the only competent body to rule on these claims ...

c) Discussion and finding

429. Based on the record before the Arbitral Tribunal, it is apparent from the wording of the Arbitration Clause, the Contract and the related contractual documentation that the Parties intended to resolve all possible differences or disputes between them through arbitration, as is usually the case in projects such as [this] where the employer is a public enterprise and the contractor is a foreign contractor. This is precisely the situation envisioned in Sub-Clause 20.6(a) of the GC ….

430. The Parties also agreed on arbitration "in accordance with the laws of the Employer" for contracts with domestic contractors in Sub-Clause 20.6(d) of the GC …

431. This further confirms the Parties' intention, when they agreed to Sub-Clause 20.6 of the GC, to resolve all possible disputes through arbitration and to establish an effective process to this effect (see, paragraph 401 above).

432. Sub-Clause 20.6(a) of the GC not only expresses the Parties' intent to arbitrate but also their intention of doing so through administered arbitration:

Unless indicated otherwise in the Particular Conditions, any dispute [. . .] shall be finally settled by arbitration. Unless otherwise agreed by both Parties:

(a) for contracts with foreign contractors, international arbitration with proceedings administered by the international arbitration institution appointed in the Contract Data, conducted in accordance with the rules of arbitration of the appointed institution, if any, or in accordance with UNCITRAL arbitration rules, at the choice of the appointed institution (… emphasis added).

433. Sub-Clause 20.6(a) of the GC contains the three necessary basic elements defined in Article II(1) of the New York Convention7 for an arbitration clause to be valid:

(i) a clear expression by the Parties of their intention to submit their disputes to arbitration, as is evidenced in this case by the content of Sub-Clause 20.6 of the GC …

(ii) a sufficient definition of the disputes to be submitted to arbitration, which is clearly the case here based on the wording of the Arbitration Clause and also by reference to Sub­Clause 20.4 of the GC; and

(iii) a clear identification of the Parties to the agreement.

434. The Parties' clear intent to arbitrate is further confirmed by the fact that the PC do not derogate from the dispute resolution clause included in the first sentence of Sub-Clause 20.6 of the GC (first emphasis in paragraph 432 above). In fact, the PC are silent on this question ... The Parties did not "otherwise agree" on either a choice of court provision or on a type of arbitration different from that provided under Sub-Clause 20.6(a) of the GC, that is to non­administered or ad hoc arbitration (second emphasis in Sub-Clause 20.6 of the GC, see, paragraph 432 above). The possibility of an ad hoc arbitration was in fact raised by the Arbitral Tribunal at the Preliminary Hearing. The Respondent did not agree this could happen. Consequently, no alternative approach could be "otherwise agreed by both Parties" and the ToR were signed.

435. Once the Parties' clear intent to submit their disputes to arbitration and not to state courts established, the incomplete and not precise enough wording used in the arbitration clause must be interpreted by the Arbitral Tribunal pursuant to the principle of effective interpretation so that a practical solution be found (see, paragraph 401 above; see, also, the strong support to the necessity of such an effective interpretation expressed again by the Swiss Federal Tribunal regarding a pathological clause not dissimilar to Sub-Clause 20.6(a) of the GC, in ATF 138 Ill 29 (judgement of the Federal Tribunal of November 7, 2011)). The Arbitral Tribunal must seek to find out what the Parties would bona fide have agreed regarding the designation of the arbitral institution in the Contract Data for Sub-Clause 20.6(a) of the GC to trigger the determination of the seat of the arbitration according to Sub-Cause 20.6(b) of the GC had they realized that they had omitted to do so. On this basis, the Arbitral Tribunal may have to complete the incomplete Arbitration Clause regarding the arbitral institution. Filling such a gap in an arbitration agreement is the same thing as interpreting the arbitration agreement. Arbitrators must proceed to interpret or complete gaps, or incomplete arbitration clauses with regard to missing or unclear secondary elements. For the reasons set out below, the Respondent's views to the contrary are not convincing.

436. There is no mention anywhere in the Contract, in particular in the Contract Data, of another type of arbitration or of ad hoc arbitration. The UNCITRAL Rules mentioned in Sub-Clause 20.6(a) of the GC only provide an option for the appointed institution to decide to use its own rules or the UNCITRAL rules, or for the latter to apply when the institution named has no rules. It is not a choice left to the Parties (see, paragraph 432 above).

437. This further confirms that the Parties wanted institutional arbitration, nothing else … The fact that they did not name an arbitration institution in the Contract Data does not affect this conclusion. It is the intention that matters in the circumstances and not the instrumentality under which the arbitration is to be conducted.

438. The Respondent's submission that the designation of a specific institution and of a seat are essential elements of an arbitration agreement is in contradiction with Article II(1) of the New York Convention, which does not mention these. They are secondary or complementary elements because the effectiveness of an arbitration clause may be achieved by other means or mechanisms, such as interpretation or completion, whenever necessary. 8 Some leading scholars even consider that where arbitrators only have to fill gaps regarding secondary elements of an arbitration clause, they do not stricto sensu complete the contract for the parties but rather resolve a dispute between the parties by way of interpretation, thereby exercising a jurisdictional task afforded as arbitrators. 9

439. Consequently, the Arbitral Tribunal finds that the Arbitration Clause is valid and binding based on its clear text, the generally accepted principles of interpretation and the criteria set out in Article II(1) of the New York Convention. There is no need to resort to in favorem validatis or in favorem jurisdictionis principles to reach this conclusion. As noted by Fouchard/Gaillard/Goldman, the only question which matters is "whether [the] parties in fact intended to resort to arbitration and, if so, which parties and for which types of dispute" (Fouchard/Gaillard/Goldman, op. cit., at paragraph 481).

440. The Arbitral Tribunal agrees with the Respondent that Sub-Clause 20.6(a) of the GC is not ambiguous (see, paragraph 409 above). It is, however, incomplete because it does not expressly mention the name of the arbitral institution referred to in Sub-Clause 20.6(a) of the GC, the location of which is to determine the place of arbitration (Sub-Clause 20.6(b) of the GC). The Parties' intention was therefore clearly to fix the seat by reference to the arbitration institution. The Arbitration Clause therefore only requires interpretation, in accordance with the general principles of contract law as applicable to arbitration clauses, in order to find a solution that respects the Parties' common intention to submit to arbitration. The Arbitral Tribunal must determine which institution the Parties would bona fide have indicated in the Contract Data had they realized that they had omitted to do so or, at the very least, what they should reasonably have had in mind under the particular circumstances of this case where no arbitration rules other than the ICC Rules are mentioned in the Contract or in the contractual documentation used by the Respondent. The location of the seat automatically flows from this determination according to the unambiguous text of Sub-Clause 26(a) of the GC. Neither Party has argued that the intention was to have ad hoc arbitration, and rightly so as this would have deprived Sub-Clause 20.6(b) of the GC from [sic] any meaning.

441. It is common ground that the Contract is based on the standard form of contract contained in the "Standard Bidding Documents for Works"("SBD-W") issued by the World Bank, which was partly financing the [project]. The March 2007 version of the SBD-W makes use of the "Conditions of Contract for Construction for Building and Engineering Works Designated by the Employer, Multilateral Development Bank Harmonized Edition 2005, prepared by FIDIC (FIDIC MBD version 2005)" [sic] ... These Conditions are addressed in Section VII of the "User's Guide for Procurement of Works" published by the World Bank in March 2007 ... Sub-Clause 20.6 of these Conditions is identical to the Arbitration Clause at issue in the present case.

442. According to the User's Guide, the "standard text of the General Conditions chosen must be retained intact to facilitate its reading and interpretation by Bidders and its review by the Bank. Any amendments and additions to the General Conditions, specific to the contract in hand, should be introduced in the Particular Conditions. A number of such Particular Conditions, applicable to the above Conditions of Contract are included in Section VIII" …

443. The Particular Conditions in the SBD-W include standard Contract Data containing the following introduction (in bold in the User Guide):

[The Employer should insert relevant data prior to the issue of the bidding document [...] Whenever there is a conflict, the provisions herein shall prevail over those in the GC]

Input of Information to be completed by Bidder (bold) or Employer (italic)" …

444. The standard Contract Data for Sub-Clause 20.6(a) of the SBD-W, titled "Rules of arbitration", indicate, in italics and thus for the Employer to complete: "[Insert rules of arbitration if different from those of the International Chamber of Commerce]" ... The Arbitral Tribunal agrees with the Claimant's view that this statement establishes the understanding of the drafter of the SBD­W that unless the Employer inserts rules other than the ICC Rules it may be presumed that the parties did not intend to opt for any other institution. This does not mean, however, that the Arbitral Tribunal is bound by such views. They rather provide an indication as to how the Arbitration Clause must effectively be interpreted based on the content of the SBD-W, their drafter's explanations as to how to use them, and thus the Parties', in particular the Respondent's, action or omission in this regard when negotiating and finalizing the Contract.

445. The World Bank also issued a "May 2006 revised in March and April 2007" version of the User Guide subsequent to the version discussed above, titled "Standard Bidding Documents, Procurement of Works and User's Guide" ... The arbitration clause it contains on page 216 is the same as that contained in the prior version (Sub-Clause 20.6 of the General Conditions) and the Contract Data for this provision contain the same comment for the Employer (see, paragraphs 443 and 444 above).

446. It is unclear from the record before the Arbitral Tribunal which version of the User Guide was eventually considered by the Respondent or relied upon by the Parties. It is established through evidence, however, that the Respondent's tender documents contained the same Sub-Clause 20.6(a) and (b) of the GC as those contained in the Contract in "Book 4 - Conditions of Contract and Contract Forms, December 2007" ... The Contract Data contained in the same document state as follows:

[Insert rules of arbitration if different from those of the International Chamber of Commerce] ...

447. According to the Respondent, there was no discussion between the Parties regarding the Arbitration Clause. This is not disputed by the Claimant, which merely states that the Parties omitted to address the question due to an oversight. Consequently, the Parties' real intent cannot be established on the basis of their discussions at the time or facts other than those arising out of the contemporaneous documentation used by the Respondent and reviewed by the Claimant. Pursuant to the generally accepted principles of interpretation set forth in paragraphs 399 to 402 above and based on the evidentiary record, the Arbitral Tribunal finds that the Respondent may be presumed to have had the ICC in mind at the time the Contract was negotiated, at the very least as a default institution. Since it was for the Employer to "insert rules of arbitration if different from those of the International Chamber of Commerce", [Respondent] cannot reasonably argue now that its decision not to do so or its oversight can only be understood as an indication that the Parties intended to exclude ICC arbitration. The fact that the Respondent does not even attempt to indicate to which other institution or which type of arbitration it actually intended to refer tends to demonstrate the contrary.

448. The conclusion that the Parties' intention can only have been to rely upon ICC arbitration is also bolstered by the fact that there is no evidence that the Parties ever discussed any other institution. It is also apparent from other elements of the Contract taken as a whole, which also point to ICC arbitration. For instance, Clause 9 of the General Conditions of the DB Agreement comprised in the GC … provides for default ICC arbitration when "no other arbitration institute is agreed" …

449. The Arbitrators agree with the Respondent that Clause 9 of the General Conditions of the DB Agreement does not apply to the present case and cannot be "extended" to disputes between the Parties regarding the Contract ... There is in any event no need to do so since the Contract contains its own Arbitration Clause, which is not an arbitration clause by reference. However, Clause 9 of the DB Agreement may be an additional source of interpretation of Sub-Clause 20.6 of the GC because the Parties are also parties to the DB Agreement. It confirms the Parties' intention, within the context of the DB Agreement, to resort to "institutional arbitration" and "if no other arbitration institute is agreed" to follow the same default ICC arbitration approach as that taken in the Contract Data in the SBD-W (see paragraph 444 above). For the Arbitral Tribunal, this is one more indication that the general dispute resolution mechanism arising from the documents used by the Respondent for the tender and eventually reflected in the Contract was to opt for default ICC arbitration, as envisaged by the World Bank's standard contractual documentation.

450. According to the Claimant, the reference to "FIDIC 2005" on page 9 of the Contract is a further indication that the Parties had ICC arbitration in mind when they entered into the Contract. The Arbitral Tribunal does not find this reference so clear. The introduction to the 2007 SBD-W User Guide mentions "FIDIC MBD version 2005" [sic], which refers in fact to the Conditions prepared by FIDIC for the World Bank that are included in the latter's standard contractual documents.

451. The majority of the Arbitral Tribunal observes that contemporaneous correspondence between the Engineer and the Parties, in particular between June and November 2009, refers most of the time to "the FIDIC Contract Terms and Conditions" or to "FIDIC GCC" when addressing the GC. In particular, the Respondent refers to the "FIDIC GCC" in its November 16, 2009 Notice of Termination …, however without indication of a precise version or date ... The Engineer specifically referred to the "FIDIC Redbook" when addressing the GC as the "FIDIC GC" in its letter dated November 13, 2009 confirming that time was not at large … and in numerous other documents, some of which are cited in prior paragraphs of this Award. Similarly, in its prior November 9, 2009 letter to the Government …, [Respondent] refers from the outset to "Contract: …-FIDIC Harmonized version, 2005" ... It is thus venire contra factum proprium for the Respondent to argue as it does now that the FIDIC 2005 conditions are totally irrelevant to interpretation of the Arbitration Clause and its Contract Data.

452. Had the Respondent intended to exclude the ICC in favour of another institution, it should have done so in the Contract Data or, at the very least, have raised the question with the Claimant during the negotiation of the Contract. It did not do so. Based on the content of the specific instruction given to the Employer in the Contract Data of the SDB-W (see, paragraphs 443 and 444 above), the silence of the Contract Data must be interpreted against the Respondent's unsupported allegation that the Parties' intention was not to agree on ICC arbitration (i.e. contra proferentem principle of interpretation; see, paragraph 402 above).

453. Taking into account the entirety of the Contract (including the content of Clause 9 of the DB Agreement, which forms part of the Contract but does not apply to this case), the drafting history of the Contract and of the Contract Data for Sub-Clause 20.6 of the GC, in particular the version contained in the tender documents (see, paragraph 446 above), the fact that the World Bank imposes standard contract documents providing for institutional arbitration and the application of the principles deriving from the Dalico case set out in paragraphs 399-402 above, the Arbitration Clause can only be understood and construed as providing for ICC arbitration by default. The Respondent's contrary allegation goes against both the principle of good faith and the principle of effective interpretation of arbitration clauses. Given the Parties' acknowledged oversight, the Claimant could legitimately understand the Arbitration Clause as referring to the ICC, i.e. the institution the Parties would have in all likelihood mentioned had they not omitted to complete the Contract Data in the final document signed.

454. Consequently, the majority of the Arbitral Tribunal considers that the Arbitration Clause is a valid and binding arbitration clause pursuant to French arbitration law (Article 1447(1) CPC (applicable by reference from Article 1506(1) CPC), Article 1507 CPC and Article 1508 CPC) and the accepted principles of interpretation applied in most jurisdictions. Sub-Clause 20.6(a) of the GC must be understood to refer to ICC arbitration given the history of the Contract negotiation and the fact that no other institution is mentioned in the Contract, which is an obvious and acknowledged oversight given that the choice of institution was also intended to trigger that of the location of the seat of the Arbitral Tribunal pursuant to Sub-Clause 20.6(b) of the GC.

455. The majority of the Arbitral Tribunal observes that the Respondent does not seriously dispute the validity of the Arbitration Clause and rather attempts to rely as a last resort on Article II(3) of the New York Convention to assert that it is "inoperative or incapable of being performed" (see, paragraph 415 above). The Respondent does not provide any convincing argument, let alone evidence, to support this view.

456. According to ICCA's Guide to the Interpretation of the 1958 New York Convention (2011), an "inoperative arbitration agreement for the purpose of Article II(3) is an arbitration agreement that was at one time valid but has ceased to have effect" (page 52). This clearly does not apply to Sub­Clause 20.6 of the GC, even on the Respondent's own argument.

457. Whether an arbitration agreement such as Sub-Clause 20.6 of the GC "is capable of being performed" is a question of interpretation in the present case. The fact of the matter is that the Arbitration Clause was sufficiently clear prima facie for the ICC Court to set the arbitration in motion. This shows that Sub-Clause 20.6 of the GC is perfectly capable of being performed, which is further confirmed by the fact the Arbitral Tribunal was constituted without any difficulty, based on Article 6(2) of the ICC Rules. This must be what the Parties would bona fide have agreed to had they realized their oversight in the Contract Data. To argue the contrary is not convincing under the circumstances surrounding the tender and the signature of the Contract. There is no evidence and thus no reason to consider that the Parties could have intended to agree on an arbitration agreement that cannot be enforced or that their real intention may bona fide be deemed to have been to do so.

458. On the basis of the above analysis, the majority of the Tribunal is satisfied that (1) the Parties agreed to resolve their dispute by institutional arbitration, (2) that their arbitration be conducted under the ICC Rules and (3) that as a result the seat of the arbitration is Paris.

459. The Arbitral Tribunal further observes that the arbitration agreement would also be valid under [the law of the Employer's country/governing law] had it been a domestic arbitration clause such as that envisaged in Sub-Clause 20.6(c) of the GC, which, it is common ground, is not the case. Indeed, [the provisions of that country's legislation] mirror the requirements imposed on Contracting States by Article II(1) of the New York Convention, to which [the Employer's country] is a Party, for an arbitration agreement to be valid (see, paragraph 433 and footnote [80] above). …

460. With regard to the present case, which relates to a dispute with a foreign contractor as envisaged under Sub-Clause 20.6(a) of the GC, the Arbitral Tribunal notes that [the Employer's country] is a Party to the European Convention on International Arbitration of 1961 (the "European Convention"). The European Convention applies where both parties to an arbitration agreement are domiciled in Contracting States, which is the case here, since [Claimant] is domiciled in [a West European state], which is also a Party to the Convention. Assuming French arbitration law would not be applicable, the European Convention would directly govern all stages of the arbitration because it is part of [the law of the Employer's country/governing law] (Fouchard/Gaillard/Goldman, op. cit., at paragraph 277).

461. As indicated in footnote [81] above, the European Convention contains a specific mechanism to ensure the constitution of an arbitral tribunal even when there is no mention of a seat in the arbitration agreement. Contrary to what the Respondent alleges, the Arbitration Clause would therefore also be "capable of being performed' on this basis.

462. In addition, the principles governing the interpretation of contracts under [the governing] law are, as already stated, 10 similar to those set out in paragraphs 399 to 402 above. In particular, … the Law on Obligations provides that when interpreting a provision in a contract "one should not follow the literal meaning of the terms employed and understand the provision in accordance with [the] principles of the law of obligations, as set out by the present law". [It] adds that if it is not possible to establish the common intention of the parties, "one should enquire into the intention which reasonable persons of the same kind would regularly have in the same situation".

463. … the Law on Obligations states that

in interpreting the contract regard shall be had, in particular to: circumstances in which it was concluded, preceding negotiations, conduct of the contracting parties subsequent to the conclusion of the contract, nature and purpose of the contract, interpretation which was already given to similar clauses by parties and the practices they have established between themselves, meaning commonly given to provisions and expressions in specific profession or branch of activity, as well as the principle of good faith and fair dealing.

464. Finally, if a contract is concluded "in conformity with a form printed in advance, or prepared and proposed in some other way by one of the contracting parties, unclear provisions shall be interpreted as to the benefit of the other Party" (… Law on Obligations).

465. On this basis, the majority of the Arbitral Tribunal's interpretation of the Arbitration Clause pursuant to the accepted principles of interpretation applicable under French arbitration law would be the same if it were carried out pursuant to the principles of interpretation of contracts under [the governing] law. Any other conclusion would be (1) in breach of the Parties' clear intent to arbitrate all disputes between them (something the dissenting opinion on jurisdiction totally omits to address) and would lead to (2) a denial of justice since the Respondent does not argue that state courts could have jurisdiction. The dissenting opinion on jurisdiction goes further than the Respondent's own case on these issues.

466. Regarding the Respondent's allegations that the Arbitral Tribunal does not have jurisdiction over the Claimant's claims for damages and costs incurred as a result of the Respondent's calling of the Performance Guarantee, the majority of the Arbitral Tribunal notes that such claims are based on an alleged breach by [Respondent] of the contractual provisions concerning this Guarantee (see, Sub-Clause 4.2 of the GC …). These rights arise out of the Contract and do not involve any third party, such as the issuer of the Performance Guarantee. Consequently, the Arbitral Tribunal is satisfied that these claims fall within the scope of the Arbitration Clause and are thus within its jurisdiction as provided also under Sub-Clause 4.2 of the GC ... The majority of the Arbitral Tribunal observes that the Respondent's allegations during the course of the proceedings regarding the claims falling within the ambit of the Arbitration Clause are in contradiction with the views it expressed at the time of the events ...

467. Sub-Clause 20.8(b) of the GC … expressly provides that all claims which could not be submitted to the DB before the DB Agreement was terminated may be referred directly to arbitration. Consequently, the Arbitral Tribunal has jurisdiction over all such claims, contrary to what the Respondent now argues.

468. Given the foregoing, the majority of the Arbitral Tribunal finds that all disputes before it are subject to its jurisdiction and are arbitrable.

Decision

469. For the reasons mentioned above, the majority of the Arbitral Tribunal finds that it has jurisdiction over all the claims before it, that all such claims are arbitrable, and is satisfied that the ICC Rules apply and therefore that the seat of the arbitration was correctly fixed in Paris by the ICC Court of Arbitration.

………

Dispositive

948. Based on the foregoing, the Arbitral Tribunal awards, declares and finds as follows:

1. The jurisdiction of the Arbitral Tribunal over the claims raised in the present ICC arbitration is confirmed and all such claims are arbitrable …'

1
Fouchard/Gaillard/Goldman, On International Commercial Arbitration, 1999, paragraph 475.

2
In a decision rendered on December 20, 1993 in Comité populaire de la municipalité de Kohms El Magreb v. Dalico (generally referred to as "Dalico"), the French Cour de Cassation, held that "By virtue of a substantive rule of the international law of arbitration, the arbitration clause is legally independent of the principal contract which contains it directly or by reference and, subject to the overriding rules of French law and international public policy, its existence and effectiveness are assessed according to the common will of the parties, without it being necessary to refer to any national law" (Cass. 1e civ., Dec. 20, 1993; translation by Yves Derains, "Choice of the Law Applicable to the Contract and International Arbitration", The ICC International Court of Arbitration Bulletin, Vol.6, No. 1, 10-18, at page 17).

3
Fouchard/Gaillard/Goldman, op. cit., at paragraph 476.

4
Id.

5
These authors note that this principle has been embodied in Article 1157 of the French Civil Code since 1804 and has been adopted in a transnational context in UNIDROIT Principle 4.5 (see, ibid., footnote 83 and paragraph 478).

6
The Arbitral Tribunal notes that these principles are reflected in [the governing] law …

7
Article II of the New York Convention, to which [the Employer's country] is a party, sets the maximum requirements for the validity of an arbitration clause because the Convention imposes on Contracting States the public international law obligation to recognize agreements in writing by which parties have agreed to submit future differences or disputes to arbitration (Loukas L. Mistelis, Concise Int'l Arbitration (2010), New York Convention, Article II, note 2).

8
See, e.g., Poudret/Besson, Comparative Law of International Arbitration, 2nd ed. (2007), at paragraphs 153 and 157. One such mechanism is to be found in Article IV(3) to IV(7) of the European Convention of 1961, which was ratified by [the Employer's country]. It enables the parties to have recourse to the President of the Chamber of Commerce at the seat of the arbitration or, in the absence of such a designated seat, at the domicile of the respondent or to a special Committee constituted pursuant to the Convention. Other laws provide for a subsidiary connecting factor based on the domicile of one of the parties where no seat has been fixed (Poudret/Besson, op. cit., at 157; see, also, Paul A. Gélinas, "Arbitration Clauses: Achieving Effectiveness", ICCA Series, Paris 1998, pages 57 and 53, quoted [by Respondent]).

9
Poudret/Besson, op. cit., at paragraph 19, page 20.

10
See footnote [79] above.