Usalini Costruttori v. Ethiopia
| Páginas | 159-224 |
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Usalini Costruttori v. Ethiopia
ICC Arbitration # 10623/AER/ACS
NDR: El presente laudo fue remitido amablemente por el Profesor Emmanuel Gaillard, Shearman & Sterling,
Paris. La publicación se hace con la autorización del Lic. Antonio Crivellaro, Bonelli Erede Pappalardo,
Abogado de la parte demandante.
International Court of Arbitration
International Chamber of Commerce
ICC Arbitration No. 10623/AER/ACS
___________________________________________________________________
SALINI COSTRUTTORI S.P.A.
(Italy)
Claimant
vs/
THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA,
ADDIS ABABA WATER AND SEWERAGE AUTHORITY
(Ethiopia)
Respondent
___________________________________________________________________
Award Regarding the Suspension of the Proceedings
and Jurisdiction
___________________________________________________________________
December 7, 2001
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-160-
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ICC ARBITRATION NO. 10623/AER/ACS
AWARD REGARDING THE SUSPENSION OF THE PROCEEDINGS AND
JURISDICTION
A partial award made in accordance with the Rules of Arbitration of the International
Chamber of Commerce (effective as of January 1, 1998) (the “ICC Rules”)
Introduction
1. The Claimant in this arbitration is Salini Costruttori S.p.A., a company organised under
the laws of Italy, with its registered office at Via della Dataria, 22, IT-00187 Rome,
Italy (the “Claimant”). The Claimant is represented in this arbitration by its duly
authorised attorneys:
Professor Antonio Crivellaro
Bonelli Erede Pappalardo
Via Barozzi, 1
IT-20122 Milano
Italy
2. The Respondent is the Federal Democratic Republic of Ethiopia, Addis Ababa Water
and Sewerage Authority, with the postal address of P.O. Box 1505, Addis-Ababa,
Ethiopia (the “Respondent”). The Respondent is represented in this arbitration by its
duly authorised attorneys:
Eric A. Schwartz, Esq.
Freshfields
69 Boulevard Haussmann
FR-75008
France
3. On August 12, 1999, the Claimant commenced the present arbitral proceedings against
the Respondent by delivering to the ICC International Court of Arbitration (the “ICC
Court”) a request for arbitration (the “Request for Arbitration”) made pursuant to
Article 4 of the ICC Rules. The Request for Arbitration was dated August 11, 1999.
This Arbitral Tribunal was subsequently constituted pursuant to the ICC Rules and the
present proceedings were set in motion.
4. For the reasons stated herein, the Arbitral Tribunal has decided to issue a partial award
regarding two issues.
a. The first issue is whether these arbitral proceedings should be suspended as a
result of certain decisions taken by the Federal Supreme Court and Federal First
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Instance Court of The Federal Democrat Republic of Ethiopia, which are
described in more detail in Sections I.G and III below.
b. The second issue is whether this Arbitral Tribunal, constituted under the ICC
Rules, has jurisdiction in these proceedings (see paragraph 43(i) of the Terms of
Reference, February 17, 2000).
5. The award will first set out the history of the disputes between the parties to the
arbitration and these proceedings before analysing and deciding these two issues.
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6. On August 7, 1996, the Respondent (as Employer) and the Claimant (as Contractor)
entered into a contract (the “Contract”) for the construction and completion of the
Emergency Dire Dam and Raw Water Transmission Line Project (the “Project”).1
7. The Contract was for the construction of an emergency raw water sewerage reservoir
for the city of Addis Ababa in Ethiopia, together with a connected 10km “Transmission
Main” to the water treatment facility located at the existing Legadagi Reservoir. The
“Contract Price” was Ethiopian Birr 30,149,510 and US$ 25,856,774.32, equivalent at
that time in total to Ethiopian Birr 193,564,324 or US$ 30,627,266.41.
8. The time for completion of the Project was 22 months. The Contractor was ordered to
commence the Works by September 14, 1996.
9. Part 1 of the Contract contained the “General Conditions of Contract”, which were
taken from the 4th Edition of the Conditions of Contract for Works of Civil
Engineering Construction as published by the Fédération Internationale des Ingénieurs-
Conseils (“FIDIC”) in 1987. Part 2 of the Contract contained the “Special Conditions
of Particular Application”. Further provisions were also agreed as a result of pre-award
negotiations between the parties.
10. Certain disputes arose between the parties in relation to the Contract. On August 12,
1999, the Claimant commenced the present arbitral proceedings against the Respondent
by delivering its Request for Arbitration to the ICC Court.
11. The Claimant invoked Clause 67 of the General Conditions (in Part 1 of the Contract),
as amended by the Special Conditions of Particular Application (in Part 2 of the
Contract), as the relevant agreement to arbitrate.2 Sub-Clause 67.3 in Part 1 of the
Contract provides:
“67.3 Any dispute in respect of which:
1 It should be noted that there is a dispute between the parties about which precise entity entered
into the Contract with the Claimant as the Employer and, therefore, about which entity is the correct
Respondent. See paragraph 31, below. Accordingly, references in this award to the “Respondent” in the
capacity of the Employer under the Contract are made without prejudice to the question of which entity was
the party to the Contract.
2 Claimant’s Request for Arbitration, August 11, 1999, ¶3.
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