Title
ICC Case No. 4629 (1989), YCA 1993, 11 et seq.
Content

1. Contractor (European Country) v. Owner (Middle Eastern Country) and others, Final award in case no. 4629 of 1989

Author: Albert Jan van den Berg

Jurisdiction: France

Organization: International Court of Arbitration of the International Chamber of Commerce

Case date: 1989

Case number. ICC Case No. 4629

Parties:

Claimants, 1. Contractor (European Country) Claimants, 2. Contractor (Middle Eastern Country)

Respondent, Owner (Middle Eastern Country)

Key words:

construction works (hotel)

existence of claimant

bankruptcy

necessity of appointing second expert

entitlement to suspend and terminate work

contract

exceptio non adimpleti contractus

calculation of liquidated

damages

discretion of arbitrator in assessing damages

calculation of interest on set-off

reimbursement of performance bond

no price increase on lump sum contract

penalty interest at rate of place of payment

Source: 1. Contractor (European Country) v. Owner (Middle Eastern Country) and others, Final award in case no. 4629 of 1989 in Albert Jan van den Berg (ed), Yearbook Commercial Arbitration 1993 - Volume XVIII, Volume XVIII (Kluwer Law International 1993) pp. 11 - 33

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21

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[37] “The contract does not rule expressly the event of the suspension of the work. It must first be examined whether this procedure was nevertheless admissible. Art. 82 of the Swiss Code of Obligations (5) allows one party to page 22 withhold his performance of the contract as long as the other party does not fulfil or refuses to fulfil his part of the contract. This exceptio non adimpleti contractus is applicable whenever the contractual parties are in a situation of exchange in which both of them must perform their obligation at the same time. It is a dilatory plea which allows one party to stop performing until the other has lived up with his own contractual obligation.

[...]


Referring Principles
Trans-Lex Principle: V.1.4 - Principle of simultaneous performance; right to withhold performance
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