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First decision on FIDIC Dispute Adjudication Boards

24 September 2014

Authors: Christopher Boog, James Menz

In a French-language decision dated 7 July 2014 and published on 20 August 2014, the Swiss Supreme Court considered, for the first time, Article 20 of the FIDIC Conditions of Contract and the jurisdiction of an arbitral tribunal to hear a dispute that has not gone through the Dispute Adjudication Board (DAB) procedure. The court found that while the DAB procedure is, in principle, mandatory and therefore, a condition precedent to arbitration, the parties do not have to go through the process if doing so would amount to an abuse of rights because it appears futile to an efficient resolution of the dispute and where there has been inordinate delay in appointing the DAB. The court confirmed that alleged failures to comply with pre-arbitration dispute resolution provisions may be challenged on the basis of lack of jurisdiction ratione temporis pursuant to Article 190(2)(b) of the Swiss Private International Law Act (PILA), and held that Article 178(2) PILA applies to the interpretation of pre-arbitration dispute resolution provisions. (Decision 4A_124/2014.)

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Published in Practical Law Arbitration

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