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)
necessity of appointing second expert
entitlement to suspend and terminate work
exceptio non adimpleti contractus
calculation of liquidated
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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[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.
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