Al-Waddan Hotel Ltd v MAN Enterprise SAL (Offshore)
Citation:  EWHC 4796 (TCC),  BLR 47
This case concerned the jurisdiction of an arbitrator in a reference by MAN.
AWH engaged MAN under a FIDIC form (4th ed). Clause 67.1 provided that if a dispute arose between the parties it must be referred to the Engineer for decision. The Engineer was required to give his decision within 84 days and only after the Engineer had given notice of his decision, or, if the Engineer failed to give notice of his decision within 84 days, could the matter be referred to arbitration. AWH was responsible for appointing the Engineer.
MAN attempted to refer a dispute to the Engineer on 10th June 2012. The Engineer informed them that it was no longer appointed. Therefore, on 1st August 2012 MAN purported to give notice of intention to commence arbitration in accordance with clause 67. AWH claimed that that arbitrator had no jurisdiction as the expiry of the 84 day period was a condition precedent to giving notice.
HHJ Reaside QC held that the referral to an Engineer was a condition precedent but that there was an implied term that where the Engineer clearly and absolutely refused to perform his function then this was no longer a condition precedent. Alternatively, he held that the duty of co-operation and the prevention principle did not allow AWH to take advantage of the 84 day requirement where they had failed to appoint a new Engineer.
Counsel: Alexander Nissen QC appeared on behalf of the Claimant.