'X. Jurisdiction

135. In their submissions, both Parties raise issues concerning the jurisdiction of this Tribunal.

136. First, the Claimant contends that the Tribunal lacks jurisdiction to examine and decide on the following issues which have been determined by the DAB Decision dated 2 July 2012:

Determination on Issue No. 1: The Contractor "failed to submit all detailed designs […] by the stipulated deadline …";

Determination on Issue No. 2: The Employer's "claim for liquidated damages for delay in respect of the late provision of [the Contractor]'s detailed design documents […] is valid and well-grounded" …

137. The DAB's determinations on these two issues effectively correspond to Issues No. 2 and No. 3 to be determined in this Arbitration, namely:

Issue No.2: How should the detailed designs be submitted in accordance with the Contract; and

Issue No.3: Whether the Claimant has a valid claim for delay damages for late submission of detailed design documents, pursuant to Sub-Clause 5.2 of the Particular Conditions of the Contract and Sub-Clause 8.7 of the General Conditions of the Contract.

138. I find the following.

139. Sub-Clause 20.4 of the GCC provides:

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

140. The DAB Decision was issued on 2 July 2012 and received by the Parties on 10 July 2012 ...

141. The Claimant issued a notice of dissatisfaction on 7 August 2012 challenging the determinations of the DAB's Decisions on Issues No. 3 and No. 4, namely:

Determination on Issue No. 3: The Employer's "claim for liquidated damages for delay in respect of late submission by [the Contractor] of detailed designs […] was settled by the Parties by execution of Addendum No. 3 to the Contract signed on 24 August 2010", and

Determination on Issue No. 4: The Contractor "is not liable to pay liquidated damages to [the Employer] in respect of late submission of detailed drawings".

142. The Respondent too issued a notice of dissatisfaction challenging the determinations of the DAB's Decision on Issues No. 1 and No. 2 (see para. 137 above). However, the Respondent's notice of dissatisfaction was issued on 10 August 2012, which is beyond the deadline stipulated in Sub-Clause 20.4 of GCC, namely 28 days from the date of receipt of the DAB Decision by the Parties.

143. The Claimant contends that, because the Respondent failed to issue its notice of dissatisfaction in time, the DAB's determinations on Issues No. 1 and No. 2 have become final, and therefore the Tribunal lacks jurisdiction to examine and determine these issues in this Arbitration.

144. As the Claimant contends, the final character of the DAB's Decision on Issues No. 1 and No. 2 derives from first, the Contract and Sub-Clause 20.4 of the GCC in particular, and secondly from [the applicable] law and provisions on res judicata in particular.

145. As regards the former contention, the Claimant relies on the final provision of Sub-Clause 20.4 of the GCC providing:

If the DAB has given its decision as to a matter in dispute to both Parties, and no notice of dissatisfaction has been given by either party within 28 days after it received the DAB's decision, then the decision shall become final and binding upon both Parties.

146. I do not regard that the above provision prevents me from examining and determining Issues No. 1 and No. 2 in this Arbitration. Although the Respondent failed to give a timely notice of dissatisfaction against the DAB's Decision, the Claimant successfully did. Since the Claimant successfully challenged the DAB's Decision on the dispute that has arisen between the two Parties, the Tribunal has jurisdiction to examine and finally decide on all issues that are relevant to the dispute between the Parties.

147. The main concept underpinning Clause 20 of the GCC, and Sub-Clauses 20.4, 20.5 and 20.6 in particular, is the concept of a "dispute" between the two Parties.

148. Sub-Clause 20.4 provides:

If a dispute of any kind whatsoever arises between the Parties in connection with or arising out of, the Contract or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer, either party may refer the dispute in writing to the DAB for its decision. (emphasis added)

149. Sub-Clause 20.5 provides:

Where notice of dissatisfaction has been given under Sub-Clause 20.4, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. (emphasis added)

150. Sub-Clause 20.6 expressly provides:

Unless otherwise agreed by both Parties:

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

151. It follows from the above provisions that when a dispute arises between the parties, either party must first submit "the dispute" to a DAB pursuant to Sub-Clause 20.4 of the GCC.

152. If either party issues a notice of dissatisfaction against the DAB decision, the DAB cannot become final, and the parties shall attempt to amicably settle "the dispute", namely the same dispute that was submitted to the DAB in the first place pursuant to Sub-Clause 20.5 of GCC.

153. If the parties fail to settle "the dispute" amicably, "the dispute", namely same dispute that was submitted to the DAB and failed to be resolved amicably, shall be finally settled by arbitration, pursuant to Sub-Clause 20.6 of GCC.

154. It is, therefore, the "dispute", which originally arose between the Parties and which was first submitted to the DAB, that eventually defines the scope of jurisdiction of the Tribunal. This is why Sub-Clause 20.6 provides:

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

155. The question, thus, is what is the dispute between the Parties here.

156. The Tribunal regards that the dispute between the Parties is essentially whether the Employer is entitled to delay damages of 5% of the final Contract Price for the alleged failure of the Respondent to submit a number of detailed design documents within the contractually stipulated deadline. At the time the Claimant filed the Request for Arbitration, the 5% of the final Contract Price amounted to ...

157. As the Claimant itself states in para. 16 of the Request for Arbitration:

The dispute [which is] referred to arbitration by the Claimant makes reference to the Engineer's Determination […]

158. The Engineer's Determination has as follows:

The Employer's claim for liquidated damages for late submission of detailed designs is valid and that the Employer is entitled to liquidated damages of the full 5% of the Contract Price as specified in the Appendix to Tender, equal to [amount] ...

159. Further, the relief sought by the Claimant in this Arbitration is delay damages of the full 5% of the Contract Price amounting to ... [T]he Statement of Claim states:

In substance, we request the acceptance of our claim as valid and legal and the obligation of the Respondent to pay delay damages of 5% of the Final Contract Price, not less than [amount] for the failure to submit the detailed designs by the Respondent within the deadline.

160. Therefore, the DAB determinations on Issues No. 1 and No. 2, namely that:

• The Contractor "failed to submit all detailed designs […] by the stipulated deadline …", and that

• The Employer's "claim for liquidated damages for delay in respect of the late provision of [the Contractor]'s detailed design documents […] is valid and well-grounded

are integral parts of the dispute between the Parties, which has now been submitted to this Tribunal.

161. It follows that the DAB's determinations on the above issues are not contractually final, and that the Tribunal has pursuant Sub-Clause 20.6 of GCC "full power to open up, review and revise" the above issues determined by the DAB's decision, because they are "relevant to the dispute" between the Parties.

162. Relatedly, and for the same reasons, the Claimant's request from the Tribunal to "cancel" the determinations of DAB's decision of 2 July 2012 on Issues No. 3 and No. 4 … is erroneous, because the authority of this Tribunal pursuant to Sub-Clause 20.6 of GCC is to decide the dispute between the Parties afresh, rather than to cancel or confirm the determinations of the DAB's decision of 2 July 2012.

163. As regards the res judicata assertion, the Claimant relies on [the applicable law]. The Claimant contends that the DAB's Decision has the force of res judicata, which prevents this Tribunal from determining issues No. 1 and No. 2 of the DAB's Decision.

164. The Claimant has not produced copies of the above provisions of the [applicable law], at least copies translated in English which is the language of this arbitration. It is therefore unclear whether [the said provisions] provide that a decision of a Dispute Adjudication Board or an adjudication decision more generally is capable of producing a res judicata effect, as if it was a national judgement or an arbitral award.

165. In the oral merits hearing … I specifically asked the Counsel of the Claimant to clarify whether the [provisions of the applicable law] specifically provide that an adjudication decision has the force of res judicata, or whether it is just the Counsel's submission that an adjudication decision can have the force of res judicata. Counsel for Claimant admitted that the [applicable law] does not provide that an adjudication decision has the force of res judicata, and this was merely his submission ...

166. Accordingly, I do not accept that the decision of the DAB can prevent, by way of res judicata, the Tribunal from determining whether:

• The Respondent "failed to submit all detailed designs […] by the stipulated deadline …", and

• The Claimant's "claim for liquidated damages for delay in respect of the late provision of [the Contractor]'s detailed design documents […] is valid.

167. The Claimant's submission that an adjudication decision can have the force of res judicata is not supported by any provision in the [applicable law].

168. Finally and separately from the two previous assertions, the Claimant contends that the Tribunal cannot examine the issues of whether the Respondent failed to submit all detailed designs in time, and whether the Claimant's claim for delay damages is valid, because this would be against the "principle of availability" under [the applicable law]. As the Claimant contends, the principle of availability is enshrined in [the relevant provision of the applicable law], and prevents this Tribunal from determining anything further than the Claimant has requested with its submissions.

169. I do not regard that, if I examine the issues of whether the Respondent failed to submit all detailed designs in time, and whether the Employer's claim for liquidated damages is valid, I will violate the principle of availability under [the applicable law].

170. As is evidenced by para. 24 of the Request for Arbitration, the Claimant in this Arbitration requests this Tribunal to

determine the Respondent's ([Contractor]) obligation of paying to the Claimant ([Employer]) delay damages amounting to [amount] determined as due by the Engineer by his Determination made in the Letter dated 7 July 2011 related to the Claimant's Claim No. 1. (emphasis added)

171. The Engineer's Determination, which the Claimant refers to in the Request for Arbitration, stated:

The Employer's claim for liquidated damages for late submission of detailed designs is valid and that the Employer is entitled to liquidated damages of the full 5% of the Contract Price as specified in the Appendix to Tender, equal to [amount] ...

172. It follows that the Claimant, by reference to the Engineer's Determination, requested this Tribunal to examine and determine, inter alia, both the issue of whether the Contractor has submitted the detailed designs late, and whether the Employer's claim for liquidated damages is valid.

173. I therefore have a duty to examine and decide on these issues in this Award. This is also the case, because the Respondent disputes, as a matter of defence, that the Claimant is entitled to delay damages in accordance with the Contract. I am therefore obliged to examine and determine whether the Claimant is entitled to delay damages in accordance with the Contract. Otherwise, I would undermine the right of the Respondent to present its case and defend the claim pursuant to Article 22(5) of the ICC Arbitration Rules.

174. I now turn to the jurisdictional issue raised by the Respondent. The Respondent contends that the Tribunal has no jurisdiction to decide on any amount in excess of …, which was the amount for delay damages representing 5% of the Contract Price, at the time the Claimant served its Request for Arbitration ...

175. The Respondent contends that, if by the time the Tribunal issues an award, the Claimant requests an amount of delay damages which is in excess of [the aforementioned amount], the Tribunal will have no jurisdiction to decide on the updated amount. Instead, the Respondent contends, the Claimant will have to refer this matter to the Engineer first to determine on this updated amount of damage, pursuant to Sub-Clause 2.5 of the GCC.

176. First, it should be noted that the Claimant never actually updated the amount of delay damages, which the Claimant requests in this arbitration. In its Request for Arbitration, the Claimant requested "delay damages amounting to [the aforementioned amount]" ... The same amount of delay damages, representing 5% of the Final Contract Price, was also requested with the Full Statement of Claim ...

177. It is true that in its Rebuttal … the Claimant stated that:

as long as the percentage of 5% is fixed and the variable is only represented by the Final Contract Amount, the Arbitral Tribunal has only the task of determining the final sum by multiplying the percentage by the final amount ...

However, the Claimant never actually requested a higher amount of delay damages. Nor did it submit that the final Contract Price has increased, since the commencement of this arbitration. Finally, the Claimant repeated its request for delay damages of [the aforementioned amount], in the oral merits hearing ... and the post-hearing briefs ...

178. Accordingly, the jurisdictional objection of the Respondent seems to have little practical relevance for this arbitration. Nevertheless, I have considered Respondent's jurisdictional objection and have decided to dismiss it for the following reasons.

179. As already stated, the Tribunal regards that the dispute between the Parties is essentially whether the Employer is entitled to delay damages of 5% of the final Contract Price for the failure of the Respondent to submit detailed design documents within the contractually stipulated deadline. At the time the Claimant filed the Request for Arbitration the 5% of the Final Contract Price amounted to [the aforementioned amount].

180. As already noted, the Claimant submitted its claim for delay damages originally to the Engineer and the Engineer determined the claim as follows:

The Employer's claim for liquidated damages for late submission of detailed designs is valid and that the Employer is entitled to liquidated damages of the full 5% of the Contract Price as specified in the Appendix to Tender, equal to [the aforementioned amount] ...

181. The same claim was subsequently submitted to the DAB, and finally to this Tribunal.

182. Even if the final Contract Price had increased in the meantime, and the 5% of the Final Contract Price amounted to more than [the aforementioned amount], it would have been the same claim and dispute between the two Parties. An updated amount would have changed the quantum of the claim and dispute, but not the claim and dispute itself.

183. Accordingly, I decide that I do have jurisdiction to determine and award delay damages of 5% of the Final Contract Price, even if this amount exceeded the [aforementioned amount].

………

XVI. Decision

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

340. The Arbitral Tribunal has jurisdiction to hear the case.

341. A claim for delay damages of 5% of the Final Contract Price falls within the substantive jurisdiction of this Tribunal, irrespective of whether the amount of 5% of the Final Contract Price exceeded the amount [determined by the Engineer].

342. The Claimant's claim for delay damages [of the aforementioned amount] in respect of the late submission of a number of detailed design documents by the Respondent was settled by the Parties under Addendum No. 3 of 24 August 2010, and it is hereby dismissed.

343. The Tribunal orders the Claimant to pay the Respondent the amount … in respect of Respondent's legal and other costs.

344. The Tribunal orders the Claimant to bear the costs of arbitration fixed by the ICC Court ...

345. The Tribunal orders the Claimant to pay the Respondent the amount of … in respect of the Respondent's share of the costs of the Arbitration.

346. All other claims, requests and relief sought are dismissed.'