The force of a DAB decision in arbitration – recent jurisprudence under the Romanian Law

The matter regarding the relevance and force of a DAB decision in front of an arbitral tribunal was analyzed in a recent arbitration referred by a Contractor to the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania pursuant to Sub-Clause 20.6 of FIDIC Conditions of Contract.

Confronted with the Contractor’s argument that its entitlement, as well as the amounts claimed by its arbitration request, were already confirmed by the DAB decision, the arbitral tribunal emphasized that, pursuant to Sub-Clause 20.6, it has full jurisdiction to perform its own analysis of the factual situation, the DAB decision not being opposable to and not having authority of res judicata upon the arbitral tribunal.

Therefore, the arbitral tribunal acknowledged that, indeed, the claimant has in principle the right to be compensated by the defendant for the additional costs incurred during the contract performance, yet not in the amount determined by the Engineer or in the amount decided by the DAB, but in the quantum determined by the arbitral tribunal itself in consideration of its jurisdiction to review any Engineer’s determination or DAB decision based on the evidence taken in the arbitral proceedings.

Under these circumstances, the arbitral tribunal decided that the only value the DAB decision can have in the arbitral proceedings is that of a piece of evidence similary to an expert report which, however, will be corroborated with the other expert reports and pieces of evidence taken by the tribunal during the arbitration.

It is noteworthy that, later on in the proceedings, when it analysed the ensemble of the evidence related to the arbitral case and decided on the merits, the arbitral tribunal considered that the expert reports taken during the arbitral proceedings, performed by the experts appointed by the tribunal, prevail over any Engineer’s determination, DAB decision and/or other extra-judiciary expert reports submitted by the parties to substantiate their claims. Accordingly, the award issued by the arbitral tribunal was based exclusively on the conclusions of such expert reports taken in the arbitral proceedings under the authority and supervision of the arbitral tribunal.

Răzvan Rugină

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