A HIGH COURT judge has dismissed a complaint by the National Gas Company (NGC) of a preliminary decision made by the sole arbitrator in its claim against Super Industrial Services (SIS) over the termination of the $400 million contract for the failed Beetham Water Treatment Plant.
On Tuesday, Justice Eleanor Donaldson-Honeywell dismissed NGC’s complaint of the arbitrator’s preliminary finding on the appointment of an engineer by the company who assessed the quantum of the failed contract.
In a separate challenge, one brought by SIS, of two preliminary rulings of the arbitrator, she only partially upheld one of the company’s complaints.
In its challenge, SIS sought to appeal the arbitrator’s dismissal of its complaint about her appointment. SIS questioned if the proper procedure was used to appoint the arbitrator. Its second complaint also involved the appointment of the engineer by NGC to provide assessments.
The latter was partially upheld by the arbitrator, who ruled the engineer was not properly appointed, since the NGC did not comply with the contractual terms to replace the initial engineer.
However, the arbitrator, in ruling against SIS, prompting its complaint to the High Court, held that a determination by an engineer was not a condition to NGC’s right to submit a claim for arbitration.
In her separate ruling on Tuesday, Donaldson-Honeywell dismissed SIS’s first complaint but sent the second back to the arbitrator to reconsider whether a determination by the engineer was a condition for NGC’s arbitration claim.
In the NGC’s complaint, the judge said, “On careful scrutiny, there is no detectable error in law on the face of the record in the arbitrator’s construction of the contractual provisions governing replacement of the engineer.
“Her reasoning on this point is characterised by counsel for SIS as impeccable. I agree. The relevant clauses of the contract are, in the first instance, amenable to the plain English construction placed by the arbitrator on the wording.”
She added, “The mere fact that a contractual procedure does not provide for every specific conceivable event does not permit the parties or the court to ignore its contractual meaning. In all the circumstances, the more viable textual, contextual, and purposive construction of the relevant clauses is the one determined by the arbitrator in her award.”
In SIS’s complaint, Donaldson-Honeywell held its challenge to the arbitrator’s appointment failed, while its second challenge succeeded in part as the arbitrator’s finding that the engineer’s determination of NGC’s claim was not a condition for it to advance its claim was “an error of law.”
“There is no specific timeframe for the engineer’s determination…Issues regarding finalisation, revision or preparation anew of an engineer’s determination can be addressed in the arbitration proceedings.”
She said the engineer appointed by NGC was to be accepted and there will be no need for a new determination by another engineer for the arbitration proceedings.
The dispute between
