Aix-en-Provence Court of Appeal, 11 January 2018, KPM SUN v. Farm PV1, Bester Generacion, no. 17/12187

The contract and sub-contract underlying the dispute were related to the design, supply, supervision of the construction of the plant and its commissioning. Both contracts were based on standard models issued by the International Federation of Consulting Engineers (“FIDIC”). The contracts provided that disputes between the parties were to be settled by the “dispute adjudication board” (“DAB”). In case of disagreement with the decisions of the DAB, the parties had to initiate the ICC arbitration. Unsatisfied with the works, the client refused to pay the market price. The subcontractor initiated the adjudication procedure before the DAB. The DAB reported on the subject. Pretending that the report of the DAB did not mention all the discrepancies, the client referred to the interim relief judge to compel a forensic expertise. The judge accepted the request and appointed an expert. The Court noted first that the expertise sought related to the elements on which the DAB had not taken a decision. Thus, the measure sought tends to safeguard the client’s rights in arbitration. This measure complies with the objectives pursued by the Brussels I bis Regulation. Moreover, at the time of the referral to the interim relief judge, no request for arbitration was made by any of the parties and no arbitral tribunal was constituted. The DAB proceedings cannot be assimilated to a court of law and the DAB to a court, so that the interim relief judge was competent. The Court therefore confirms the order referred.

2018-02-18T20:15:38+00:00 January 11th, 2018|Aix-en-Provence Court of Appeal, Court of Appeal|0 Comments

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