‘Considering that:

1. This Arbitration has been bifurcated so as to allow the Parties to have certain claims decided as soon as possible through a partial award, also considering some urgency requirements put forward by Claimant;

2. One of the issues that the Sole Arbitrator addressed in the Partial Award was whether the amounts claimed by Respondent within its Statement of Defence (i.e. additional costs borne by Respondent in connection with certain remedial works which were not carried out by the Claimant but by other third parties and that Claimant was consequently due to repay to Respondent) were to be qualified as mere defences against Claimant’s prayers for relief or, rather, as counterclaims. In this respect Claimant’s position in the first stage of the Arbitration has always been that those amounts were claimed by Respondent as counterclaims and that they should be considered stayed by operation of law due to the declaration of bankruptcy of Claimant ...

3. In the Partial Award the Sole Arbitrator decided that the amounts claimed by Respondent in the Statement of Defence were indeed counterclaims and that they could not be further pursued in this Arbitration since they were stayed by operation of law in application of the [applicable] Bankruptcy Act;

4. The Arbitration has now moved forward to its second and final stage. Among Claimant’s claims that remain to be addressed, there is the right of Claimant to receive the repayment of the outstanding balance of the Retention Money. During the Hearing ... it was discussed whether the Engineer had issued the certification under Sub-Clause 14.9 of the GC and, further to the Sole Arbitrator’s request for clarification, Respondent’s counsel specified that “until today the Engineer didn’t issue a separate certificate under Sub-Clause 14.9 of the General Conditions and the Final Payment Certificate will be issued under Sub-Clauses 14.11 and 14.13 of the General Conditions. The deadline for issuing this certificate is still pending. In response to the Sole Arbitrator’s request, Respondent declares that it will explore the possibility to obtain shortly from the Engineer the certification for payment under Sub-Clause 14.13 of the General Conditions. According to Sub-Clause 14.13 of the General Conditions Respondent declares that when it will receive the Final Payment Certificate from the Engineer the Contract will be considered closed between the parties and the Final Payment Certificate will state: “(a) the amount which is finally due, and (b) after giving credit to the Employer for all amounts previously paid by the Employer and for all sums to which the Employer is entitled, the balance (if any) due from the Employer to the Contractor or from the Contractor to the Employer, as the case may be” (Sub-Clause 14.13 of the General Conditions)” (see Minutes of the Hearing ...);

5. At the end of the Hearing the Sole Arbitrator declared that she was “satisfied with the answers received”, that “there is no need for further evidence to be gathered except for the documentation the Parties will be allowed to submit within the first round of post-hearing briefs” (see Minutes of the Hearing ...) and, with the Parties’ agreement, granted a double simultaneous term for filing post-hearing briefs and briefs in rebuttal, and a consecutive double term for filing submissions on costs and comments thereto. At the Hearing it was further agreed that in the first round of post-hearing briefs the Parties would have been allowed to produce additional documentation “concerning exclusively the certifications rendered by the Engineer pursuant to Sub-Clause 14.9 of the General Conditions and/or pursuant to Sub-Clause 14.13 of the General Conditions”. No objections or reservations of rights have been made by Claimant in this respect;

6. With its post-hearing brief ... Respondent filed ... the Final Payment Certificate issued by the Engineer ... according to Sub-Clause 14.13 of the GC (“FPC”);

7. ... Claimant filed a request for the authorization to submit “a claim aiming at the revision of the FPC” (the “New Claim”) pursuant to Article 23.4 of the Rules (the “Request”). Claimant grounded the Request on the following arguments: (i) the FPC includes an entry ... named “Deduct amount as per FIDIC Sub-Clause 2.5” and the said amount corresponds to the net total amount certified for payment in the FPC ...; (ii) the Parties are in disagreement about the meaning of “deduct(ion)”; (iii) claims deriving from the FPC fall under the scope of Sub-Clause 20.6 of the GC; (iv) the FPC should be revised in the arbitration since it interferes with it and contradicts the Sole Arbitrator’s findings; and (v) the Sole Arbitrator has jurisdiction over the New Claim “since the matters to be revised are overlapping the claims already brought in this arbitration”;

8. ... the Sole Arbitrator granted Respondent [six days] for filing a 3-page brief commenting upon the Request and clarified that she would have taken her decision afterwards, it being understood that, however, all deadlines established at the Hearing were not stayed;

9. ... Claimant submitted its Submission in rebuttal, in which, inter alia, it stated as follows: “it is our belief that, in case the Sole Arbitrator will not authorize a claim, Parties will have the opportunity to detail the matter of the FPC in a further/last round of submissions, if required by/useful for the Arbitral Tribunal in view of rendering the Final Award”;

10. ... Respondent submitted its comments to the Request, maintaining the following: (i) the New Claim falls within the Sole Arbitrator’s jurisdiction pursuant to Sub-Clause 20.6 of the GC, (ii) it is entirely up to the Sole Arbitrator to decide whether or not to admit the New Claim, (iii) the arbitration costs for the New Claim should be all borne by Claimant since all Respondent’s bank accounts are under garnishment by Claimant, (iv) assessing the New Claim might not require a long postponement of the Arbitration since most of the necessary evidence is already on the file, (v) the FPC does not contradict the Sole Arbitrator’s findings since the Sole Arbitrator never entered into the merits of the amounts payable to Respondent by Claimant due to the bankruptcy of Claimant, (vi) in assessing the New Claim the Sole Arbitrator should consider the amounts claimed by Respondent in the arbitration since “the arbitrator is no longer held by her assessment of our claims as being ‘counterclaims’ since she is about to pronounce herself on a request of the claimant and not of the respondent”, and (vii) Respondent fears that the Request is a mere dilatory attempt by Claimant to prolong the arbitration as much as possible so as to jeopardize the possibility for Respondent to operate deduction in case it will obtain a final award favourable to it.

The Sole Arbitrator hereby decides as follows:

11. Claimant requests the authorization to submit the New Claim pursuant to Article 23.4 of the Rules. Article 23.4 of the Rules provides that no new claims that fall outside the limits of the Terms of Reference can be submitted after the Terms of Reference have been signed without the express authorization of the Arbitral Tribunal. Claimant therefore recognizes expressly that the New Claim (a) is “new” under Article 23.4 of the Rules and (b) falls outside the limits of the Terms of Reference. Indeed, (a) it is a “new claim” since it leads to an entirely new prayer for relief (the revision of the FPC),1 and (b) it certainly falls outside the Terms of Reference since the revision of the FPC cannot be considered as implied in any of Claimant’s claims as listed in the Terms of Reference, and it relates to a document that did not even exist at the date of signature of the Terms of Reference.2

12. Under Article 23.4 of the Rules, in deciding whether or not to authorize the New Claim, I have to consider the nature of the New Claim, the stage of the arbitration and all other relevant circumstances. As a consequence of this evaluation, it is my view that Claimant should not be admitted to file the New Claim in this arbitration: indeed, the arbitration has now come to its very end and, in my view, the connection between the New Claim and the claims that are to be decided in the Final Award is not strong enough (not being a case of dependence of one issue from the other) to justify now a reopening of the proceedings.

13. Considering the substance of the New Claim – as it may be inferred from the Request where, however, Claimant did not fully outline the contents of the New Claim, but rather sought preliminarily an authorization for its admission – I do not share Claimant’s arguments that the production of the FPC interferes with this arbitration and contradicts my previous findings due to the following reasons.

14. In the Final Award I am called to decide upon the following issues arising out from Claimant’s claims (as modified by Claimant after the Partial Award): (i) whether Claimant is entitled to the repayment of the Retention Money and (ii) whether Claimant is entitled to the repayment of the amount ... demanded by Respondent under the PS [Performance Security] due to the extension of the DNP [Defects Notification Period] for the ... Pumping Station as determined by the Engineer. In its Request Claimant specifies that the New Claim would seek the revision of the FPC with respect to the “Deduct amount” ... and consequently to the net amount certified for payment therein ... The quantification of this amount, however, is not relevant, in my view, to the resolution of any of Claimant’s claims that are to be decided within the Final Award which only concern the Retention Money and the remaining part of the PS demanded by Respondent. As a matter of fact, the FPC includes a specific entry regarding the Retention Money, and it appears to me that the “Deduct amount” is severable and autonomous from the amounts that are actually in dispute in this Arbitration. Therefore, there is no specific need to address the New Claim together with the claims that are going to be decided in the Final Award.

15. I am also not convinced that the FPC contradicts per se my previous findings in this arbitration. In this respect I share Respondent’s view: as of today this arbitration did not enter into the merits of the determination of the amounts payable by Claimant to Respondent for the remedial works, since, also on the basis of the arguments firmly put forward by Claimant, I found in the Partial Award that any claims raised in this respect by Respondent were to be qualified as counterclaims, and therefore could not be further pursued in this arbitration as a consequence of Claimant’s declaration of bankruptcy. Consequently, it is my view that the mere production at this stage of the arbitration of the FPC may not reverse or overrule my previous findings. On the contrary, I see that there may be a potential for disruption of the ordinary course of the arbitration if the New Claim were to be authorized, also in consideration of the fact that whereas Claimant, during the first stage of the proceedings, insisted for the exclusion of the claims of Respondent from this arbitration (and, as a matter of fact, Claimant never filed any defence concerning the merits of these amounts, only maintaining that they were not to be allowed in this arbitration), now, at the very end of the proceedings, it requests to be authorized to file a new claim which, indeed, would be seeking the revision of those very same amounts.

16. From a procedural point of view it seems to me that authorizing the New Claim would not even satisfy any interest of good justice. Admitting now the New Claim would cause an undue delay of the proceedings, since I would have to reopen the evidence taking phase and allow the submission of new briefs. It seems to me that this, in the light of all the circumstances described above, would be unfair to Respondent and would unnecessarily harm the interest of both Parties to have me conduct this arbitration in an expeditious manner. Indeed, this arbitration is almost to be declared closed. The Parties have exchanged their post-hearing briefs and both of them agreed, at the hearing, that the evidence gathering phase was concluded. There are no pending requests for evidence that are still to be addressed. On the contrary, if authorized, the New Claim would necessarily cause the opening of an entire new stage of the arbitration: since Claimant is requesting the revision of the FPC with respect to the “Deduct amount” ... under Sub-Clause 2.5 of the GC, the amounts included in Respondent’s counterclaims should then be also examined by me to the extent they fall within such “Deduct amount” challenged by Claimant. This would require an entirely new evidence gathering phase, and I am not convinced that it could be concluded so rapidly as both Parties seem to believe in their briefs, since Claimant has not filed any evidence or put forward any arguments in this respect until now, and it could be also necessary, in my view, to hear witnesses, as well as to appoint an expert to evaluate whether and to what extent the “Deduct amount” of the FPC challenged by Claimant is effectively due to Respondent.

17. Moreover, the New Claim, if authorized, would increase the value of the arbitration, and therefore, the advance on costs would probably be readjusted by the ICC Court. Respondent already anticipated that it would not be able to pay its share of costs for the New Claim since Claimant garnished all its bank accounts. It is therefore likely that the Parties would also not be in agreement on this point and this would ultimately further delay the conclusion of the proceedings.

18. Finally, I consider that not authorizing the New Claim would not cause a breach of my duty to act fairly and impartially to both Parties. By filing the Request Claimant is de facto challenging the same amounts that were already submitted in this arbitration by means of Respondent’s counterclaims which have been excluded from the scope of this arbitration as a consequence of Claimant’s bankruptcy ... that was declared upon Claimant’s own request. It seems to me that, if Claimant had wanted to, it would have had the chance to submit a claim seeking the ascertainment of the amounts actually due to Respondent as a consequence of the remedial works since the beginning of the arbitration. However, to date no such request has been made. Respondent has put forward that this behaviour of Claimant could be only motivated by its intention to delay the arbitration: I don’t have any evidence to conclude in this sense, but, nonetheless, I do have to take into account my obligation towards both parties to conduct the arbitration in a timely manner and without undue delays.

19. In conclusion, in the view of conducting the arbitration in the more efficient and fair way to both Parties, taking into account all that has been said above, I consider that the New Claim would cause an improper and unfair delay to the arbitration which is not counterweighted by the opportunity of having the New Claim decided together with the Claimant’s claims which are under decision in the Final Award. Therefore, I do not authorize Claimant to submit the New Claim in this arbitration. Claimant remains however free and unprejudiced to pursue the New Claim by commencing another arbitration or by any other means it may deem fit and appropriate.

20. Consequently, for the reasons stated above I consider that it is not necessary to grant to the Parties the opportunity to detail the matter of the FPC in a further round of submissions, and therefore the deadlines already granted ... for filing, respectively, submissions on costs and parties’ comments thereto, are confirmed.’

1
E.A. Schwartz, “‘New Claims’ in ICC Arbitration: Navigating Article 19 of the ICC Rules”, in ICC ICArb. Bulletin, vol. 17/no. 2, 2006, page 69, on Article 19 of the previous version of the ICC Rules (now moved into Article 23.4). In an award rendered in the ICC case no. 7047 (in J.J. Arnaldez – Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1996-2000, Kluwer Law International, 2003, pages 32 to 26) it has been stated that a claim is new and not within the limits of Art. 16 ICC Rules [now Art. 23.4] if it raises issues of fact and/or of law which are new compared to the issues in dispute so far.

2
See the award rendered in the ICC case no. 6647, in ICC ICArb. Bulletin, vol. 8/no. 2, 1997, page 71 and the unpublished award quoted by F. Perret, “Les conclusions et les chefs de demandes dans l’arbitrage international”, in ASA Bulletin, vol. 7, 1996.