Contract Administration

by Karen Gough

We are in the midst of a world-wide recession. So, in times when contractors’ liquidity and therefore their very survival is more at risk than usual, and employers are more than usually jittery about the ability of contractors to complete works, a recent decision on a claim to enforce an advance payment guarantee and a performance bonds is of particular interest to construction law practitioners. …

Making Demands on Advance Payment Guarantees and Performance Bonds: The Test to Secure Summary Judgment on a Claim before the English CourtRead More »

by Martin Harman

I have just returned from a family holiday in India, our first visit together although I am a frequent business traveller there. Apart from the beauty and vibrancy of the country and its people, what struck me most was that when travelling on business one is so very removed from the real life of the people of the country. I spend a large part of my time working as an international legal counsel to Indian law firms and Indian corporates who are at the forefront of the delivery of India’s infrastructure vision, a vision that requires, as just one example, the delivery of 20 kilometres of road every day over the next few years. For the business traveller, whose main transport experience is a journey from hotel to office, the scale of the infrastructure deficit begins to come into focus but as a tourist traveller, it looms extremely large. …

Are lawyers ready to leave their comfort zones to set the world’s infrastructure projects on the right track?Read More »

by John Bishop

Monday was a public holiday in China, to celebrate Qing Ming, the Chinese tomb-sweeping festival which also happily coincided with Easter. I spent some time explaining to my Chinese friends the Easter story, and how in recent times there have been other interpretations involving bunnies and chocolate eggs.

China has been busy hatching some of its own contractual eggs by taking FIDIC standard forms traditionally used by International Contractors in their overseas projects, and adapted to reflect local conditions and times.

The FIDIC Silver Book has been considered by the the Ministry of Housing and Urban-Rural Development (”MOHURD”) to promote the EPC contracting model in China. A draft MOHURD standard form was prepared with reference to FIDIC Silver Book and international engineering contracting practices, and released for public comments at the end of 2009. This adaptation by MOHURD appears to have been partly influenced by the GF-1999-0201, a standard form widely used in China, mostly for government financed projects using procurement methods such as competitive bidding.

The resulting risk allocations have turned out quite different from the original “turnkey” nature of the FIDIC Silver Book that may come as a bit of a surprise to those used to EPC contracts. Owners and developers may not get quite the turnkey solution they were expecting in relation to matters such as responsibility for information as to underground conditions and site obstructions, the obligation to obtain approvals, permits and licenses and especially in relation to site safety. It will be of great interest for the construction sector to see how the Chinese EPC form of contract, when finally issued, in fact addresses these matters.

Similarly the Regulation on Construction Market Administration which is likely to be promulgated by the State Council later this year appears influenced by the FIDIC Yellow Book and is likely to provide a clearer legal basis for adopting some of the forms of contracting widely used in the international market, especially in respect of Design and Build contracts.

This Easter also coincides with the anniversary of the Independent Mediation Rules 2008 introduced by the Beijing Arbitration Commission (BAC) on 1 April 2008. These rules were implemented after the participation of over 120 arbitrators and construction engineering experts, including very well known experts. I know this, because my collegue Hew Kian Heong and I were also asked for my own humble contributions to this effort. I therefore know that these Mediation Rules were also drafted so that they could be used to support a multi-tiered dispute resolution process as envisaged by standard form contracts such as ICE and FIDIC.

One of the key attractions of the FIDIC suite of contracts is flexibility, which allow their renewed use in many new markets by taking into account local laws and regulation, and I have no doubt my Chinese friends will capitalize on this advantage its fullest.

Kluwer Construction Blog

by Matthias Scherer

Contractors and suppliers operating abroad often conclude contracts with agents, consultants and other intermediaries who assist them in tender processes as well as in negotiating and performing contracts. Typically, these consultancy agreements provide that disputes are to be submitted to arbitration. Most disputes concern the consultants’ entitlement to a fee. In these disputes, the principal often argues that the contract was illegal under the applicable law. This notably occurred in two cases which led to two recent decisions of the Swiss Federal Supreme Court on applications to set aside or revise arbitral awards.

In the first case, a Swiss and a Taiwanese party had entered into a consultancy agreement in respect of a contract which the Swiss party wished to obtain for managing and maintaining an electricity plant in Taiwan. On the basis of the agreement, the Taiwanese consultant later initiated arbitration under the Swiss Rules of International Arbitration to obtain payment of his fees. The arbitral tribunal found in a partial award that the consultancy agreement was valid.

The Swiss principal applied to the Swiss Federal Supreme Court for revision of the partial award, the time limit for the setting aside of the award, which would have been the ordinary remedy in such a case, having already expired. The principal contended before the Supreme Court that the agreement had an illegal content as it contemplated bribery, and produced new evidence to support its claim. The Court denied the request, as the prerequisites under Swiss law for a review of the award were not met. Indeed, according to the Court, the evidence could have been produced in the arbitration and was therefore not new. The arbitration resumed and the arbitrators eventually rendered a final award in favour of the consultant.

The principal sought to have the final award set aside on the grounds that it breached public policy, relying on the same evidence on which it had previously sought to rely in its request for review of the partial award. The principal further argued that the Supreme Court must examine the alleged nullity of a contract on its own motion. The Court however dismissed the application. It found that the principal could and should have produced the evidence purportedly showing bribery during the arbitration. The Court also ruled that it would not review on its own motion the validity of private law contracts.

The principal again raised its public policy defence in the subsequent enforcement proceedings in Switzerland. The competent cantonal court however ruled that arguments which could have been raised in setting aside proceedings could no longer be raised at the enforcement stage.

In another dispute between a consultant and a principal, the Swiss Federal Supreme Court admitted the principal’s request to set aside an arbitral award due to procedural fraud. In the highly publicized Thales v Frontier AG matter, the award was annulled and the matter remanded to the arbitrators. The facts of the case are summarised below.

In 1989, France authorised the export of new F-3000 frigates to Taiwan. Mainland China objected to the export and a few months later, upon request of a French minister, France withdrew the export authorisation. In 1990, Thomson CSF (which later became Thales), the manufacturer of the frigates, entered into an agreement with Frontier, a Swiss company, to act as its agent. According to the agreement, Frontier was to receive remuneration amounting to 1% of the value of Thomson CSF’s contract with Taiwan for its assistance in relation to the sale of the warships. Behind Frontier was Alfred Sirven, a high ranking manager with the French oil company Elf Aquitaine. Subsequently, in 1991, the French government reversed its previous position and gave its final approval for the sale of the ships. The contract between Thomson and Taiwan was concluded on 31 August 1991 for a purchase price of approximately USD 2.5 billion.

Thomson however refused to pay Frontier, which initiated ICC arbitration as a result. In the arbitration, Thomson contended that the objective of the contract was in fact for Frontier to solicit the services of Edmond Kwan, a consultant of Elf Aquitaine in China, in order that he use his political connections to persuade the Chinese to cease their opposition to the sale of the warships to Taiwan. Thomson argued that the contract was void as its object was influence peddling. Messrs Sirven and Kwan, as well as other witnesses, were heard by the arbitral tribunal.

In 1996, the tribunal rendered its award, ordering Thomson to pay the contractual fee to Frontier. The tribunal found that Frontier had provided the services which were due under the contract by assisting Thomson, through Edmond Kwan, to appease Chinese opposition to the sale. The tribunal admitted that influence peddling was unlawful but found that it had not been proven that influence peddling had occurred. Thomson subsequently initiated criminal proceedings in France against Mr. Kwan and others for giving false testimony before the arbitral tribunal. On 1 October 2008, the French authorities ceased their investigation as a result of Mr. Sirven’s death and because there was insufficient evidence against the other actors. The French authorities however concluded that Sirven had indeed given false testimony during the arbitration.

On 17 December 2008, Thales (formerly Thomson) brought a request for review of the 1996 arbitral award before the Swiss Federal Supreme Court on the basis of the findings of the French authorities. The French investigation had shown that the real objective of the contract between Thomson and Frontier was not to lobby for the sale of the warships in China, but rather to persuade a French minister, who wanted to avoid retaliation measures by Mainland China, to reconsider his objections to the sale. Commissions had therefore been paid by Frontier to Mr. Sirven and a woman who had privileged relations with the minister. Mr. Sirven had represented to the arbitral tribunal that Mr. Kwan had been the only beneficiary of a commission, however it was uncovered that he had implicated Mr. Kwan merely for the purposes of the arbitration. The Swiss Supreme Court ruled that it had been established that Mr. Sirven had orchestrated an influence peddling scheme to the detriment of the French authorities. He had misled the arbitral tribunal and was therefore guilty of procedural fraud. In the opinion of the Supreme Court, Mr. Sirven’s untruthful testimony had had a direct influence on the tribunal’s award. Consequently, the Supreme Court annulled the award and remanded the matter to the original arbitral tribunal or a new tribunal to be constituted in accordance with the ICC Rules.

Conclusions

Several conclusions can be drawn from these two cases. The first is that arbitral tribunals and the Swiss Supreme Court will not uphold contracts that are flawed by illegality. However, it is for the party which alleges an illegality to prove it. Another conclusion to be drawn is that if evidence of illegality exists at the time of the arbitration, it must imperatively be produced in the arbitral proceedings. A party therefore cannot hold back evidence, even if it is self-incriminating, and rely on it in subsequent annulment or enforcement proceedings in the event of an unfavourable outcome of the arbitral proceedings. On the other hand, if a party misleads the arbitral tribunal, as could be uncovered in subsequent criminal proceedings, an arbitral award may not stand.

By Matthias Scherer and Sam Moss

Kluwer Construction Blog