LCIA arbitration relating to the construction of a pier in the Caribbean

The dispute related to the construction of a pier. The contract was a design and build contract under FIDIC’s 1999 Yellow Book. Corbett & Co was instructed as Co-Counsel part way through an LCIA arbitration to deal with the ground conditions claims, which were the most significant element of the dispute. The contractor alleged that (1) it had encountered hard materials when dredging, which were unforeseeable having regard to the data provided; and (2) that the subsurface conditions were unforeseeable with the result that the pile design had to change. This resulted in more piles and piles to a greater depth. The ground conditions element of the claim was for an amount in excess of US$ 7.5 million.

Corbett & Co had to review all the documents and data in a few weeks. We worked with the experts and witnesses to prove that the data provided to the contractor showed that the types of ground conditions encountered were foreseeable. This related to the dredging of the site as well as the design of the piles for the pier.
Corbett & Co thereafter appeared as co-counsel in the LCIA arbitration.

We cross-examined the contractor’s experts as well as dealing with re-examination of the employer’s geotechnical experts. The two issues were both factually and technically complex. We reviewed and considered all the data provided to the contractor. We also considered whether there was a possibility that the piles would fail having regard to the skin friction of the piles and the possible liquefaction of soils in the event of an earthquake. We then drafted the closing submissions for these claims.

Corbett & Co was successful in defending the dredging claim and the pile design claim. The claimant’s expert on the dredging issue admitted in cross-examination that the type of material encountered was foreseeable. Regarding the pile design claim, the Tribunal found that no unforeseen conditions had been identified by the claimant’s experts. These claims were therefore dismissed in their entirety and the Contractor was ordered to bear its own costs.