Al-Waddan Hotel Ltd v Man Enterprise SAL (Offshore)
2014
TECHNOLOGY AND CONSTRUCTION COURT
UK
CORAM
- HIS HONOUR JUDGE MARK RAESIDE QC
Areas of Law
- Alternative Dispute Resolution
- Contract Law
2014
TECHNOLOGY AND CONSTRUCTION COURT
UK
CORAM
AI Generated Summary
This judgment pertains to a dispute between Al-Waddan Hotel Limited and MAN Enterprise SAL regarding the jurisdiction of an arbitrator amid ongoing arbitration. The contentious point was if a notice of decision from the Engineer was a binding condition precedent under a FIDIC contract. Al-Waddan argued the Arbitrator lacked jurisdiction, prompting the court's involvement. The court confirmed the Arbitrator's jurisdiction, drawing from principles that prevent parties from benefiting from non-fulfillment of conditions they hinder. The judgment reaffirmed the significance of implied cooperation under contract law.
J U D G M E N T
JUDGE RAESIDE:
This is an ex tempore oral judgment which will be in eight parts. I introduction; II procedure; III test; IV contract; V facts; VI law; VII discussion; and VIII conclusions, which have been corrected and amended by the addition of the discussion and therefore reduction of the conclusions.
I. Introduction
This is a dispute between Al-Waddan Hotel Limited (‘Al-Waddan’) and MAN Enterprise SAL (‘MAN’) in respect of whether or not an arbitrator had jurisdiction to continue with the arbitration between the two of them, in which MAN Enterprise SAL are the claimants and Al-Waddan Hotel Limited are the defendants. The alleged lack of jurisdiction turns on whether a notice of decision of the Engineer, DAR Al Handasah (‘DAR’), is a binding condition precedent and MAN are required to await the full contractual period before the dispute can go to arbitration.
II. Procedure
On 20 th October 2014 an arbitration claim form was issued by Al-Waddan claiming the following remedies: (i) under s.67 of the Arbitration Act 1986 that the Arbitrator lacked substantive jurisdiction; (ii) that the contract of 1 st April 2007 had a clause 67, and the Arbitrator was wrong to consider that the case fell under the general principle of a party taking advantage of his own wrong and apply Panamena . In support of that the witness statement of Mark Lawrence, dated 20 th October 2014, indicates that there were five grounds which had been before the Arbitrator of which grounds 1, 4 and 5 Al-Waddan agree with the award but as far as grounds 2 and 3 are concerned, Al-Waddan wish to challenge those. It was made clear that all other avenues had been exhausted including under s.57 of the Arbitration Act 1996.
The witness statement, first of all provided as Exhibit 1 the bundle of documents that were before the Arbitrator and, secondly, provides as Exhibit 2 a copy of the award. Reference was made to Macfarlanes LLP’s letter to the Arbitrator of 28 th July 2014 confirming that (i) Al-Waddan wished to raise the jurisdiction objection; (ii) MAN owed Al-Waddan liquidated damages which exceeded the sums paid by MAN, and (iii) Al Waddan considered it had made a substantial overpayment to MAN. It also contains a statement of truth in the usual way.
So far as the appointment of an arbitrator is concerned, this matter came before Mr. Justice Ramsey (now Sir Vivian Ramsey) reported in [2013] EWCA 2356 and [2014] 1 Lloyd’s Rep 217 . So far as material to that applic