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44.
In respect of issue No. 4
45.
As previously noted, the Final Award was accompanied
by a dissenting opinion
which focussed on the identity of the “supervisor” and Article 788 of the Civil Code.
The dissenting arbitrator would have accepted APC’s claim and dismissed ATA’s
counterclaim. He opined, in part, as follows:
, the FIDIC Tribunal awarded ATA USD 5,906,828.30 in
addition to interest, costs and advocates fees.
Since the obligation of the Contractor [ATA] and the Engineer is to achieve an
end result – to ensure that the structure shall remain safe throughout the liability
period, in accordance with the terms and conditions of the contract and
in full
compliance with the fundamentals of architectural art, hence, any occurrence to
the contrary as may result in partial or total collapse or defect affecting the
strength and safety of the structure, both by the Contractor [ATA] and the
Engineer shall be answerable pursuant to the bylaws under discussion here.
Therefore, it is enough for the Employer [APC] to prove the occurrence of
defects or any thereof without the need to prove any mistakes on
the part of the
Engineer or the Contractor [ATA], since their liability is presumed.
[…]
Accordingly, [APC] were not originally required to submit any evidence on
[ATA’s] liability. All that was required of them was to prove that the collapse
had occurred, which was not a matter of contention. Refuting, denying and
negating such liability is [ATA’s] duty, although [APC] have supplied enough
compelling evidence and have established that.
C.
The Amman Court of Appeal Proceedings
46.
Following the Final Award APC filed on 29 October 2003 an application in the
Amman Court of Appeal to annul the Final Award under the Jordanian Arbitration Law.
On 24 January 2006, the Court of Appeal issued a judgment annulling the Final Award
principally on the basis that the FIDIC Tribunal had made an error in concluding that
Article 789
of the Civil Code, upon which the FIDIC Tribunal had based its Final Award,
was applicable in the circumstances. Instead, the Court of Appeal concluded that the
FIDIC Tribunal should have applied other provisions of the Civil Code (namely, Articles
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786 and 788) that would have imposed strict liability on ATA. In the words of the Court
of Appeal:
Accordingly the liability of the Contractor [ATA] is there at all times including
the absence of trespass or negligence and the exception from this if the cause of
the accident could not be avoided (Article 786 mentioned above) i.e. The
contractor [ATA] guarantees what results from his work or manufacture whether
by his trespass or negligence or not which means he indemnifies the
damage in
general from trespass or failure or otherwise as long as the damage is a result
from the execution of the work whatever was its source.
As for 788 Civil Code which clarified the liability of the Engineer (in the
construction contract) who makes the design of the construction as executed by
the Contractor under the supervision of the Engineer where the Legislator
considers them jointly to compensate the employer for whatever happens during
10 years for the total or partial collapse of what they constructed in addition to
any defect that threatens the strength and safety of the building.
Accordingly what was mentioned in this article does not eliminate the liability of
the contractor [ATA] in indemnifying what comes out from his execution but the
Legislator wanted to give additional security to the owner by joining the liability
of the engineer with the liability of the contractor [ATA].
Again our court finds and from its scrutiny of the court file and the evidence
submitted therein that GIBB Co. has the main supervisory role on the agreed
upon construction between both parties to the litigation.
This is reflected in
suggesting modifications and revising the daily decisions and allowing the issue
of-these decisions and any other decisions which are not daily as there was no
possibility of taking any decision unless after it being revised and the
representatives of the contractor [ATA] were aware of these issues through their
meetings with the representative of GIBB. In addition to that it was GIBB who
allowed the appointed Engineer from APC to issue the orders to
continue the
work or variations.
From all of this, we find that GIBB – and by agreement of both parties to the
action – was the actual consultant since its work was the actual supervision on
every piece of work in the project in addition to maintaining the design i.e. it was
carrying out the actual supervision with all what this word means.
As for the liability of the employer and as we find that the construction subject
matter of the contract which represent the construction of a usable Dike and that
the execution requires
a technological, technical and scientific experience which
we find is not available in the employer who is considered a layman and has no
experience to construct the Dike which leads that he is not responsible for the
construction of the Dike.
From all this, we find that the majority arbitration award which is appealed based
its award on article 789 of the Civil Code which we find that it does not apply on
the present court action and that the majority of the arbitrators failed to put in
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gear article 786 of this law which means that the
award appealed shelved the
application of the agreed law on the subject matter which constitute that these
grounds for the appealed award are valid in accordance with article 49/a-4 of the
prevailing arbitration law and require setting it aside.
47.
Based on the above, the Court of Appeal thus decided to
set aside the appealed award issued by the majority of the arbitration tribunal and
adjudge of its nullity and at the same time dismiss the arbitration agreement
concluded between the parties to the action.
