X. GmbH v. Y. GmbH & Co KG [The German Biomass Power Plant] No. 4A_428/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 43

X. GmbH v. Y. GmbH & Co KG

[The German Biomass Power Plant]

No. 4A_428/2010

Headnote

■ Called upon to adjudicate claims between two members of a

consortium, an arbitrator does not exceed his jurisdiction by dealing

with possible claims by third parties against the consortium where

the determination of those claims arises as a preliminary question.

■ According to the rules of good faith, objections to arbitral

jurisdiction must be raised as soon as possible (confirmation of

previous decisions).

■ The maxim ne eat iudex ultra petita partium is not breached where

an arbitrator gives the claim in dispute a legal characterisation

which is wholly or partly at variance with the characterisation made

by the parties in their submissions, as long as the arbitrator’s

characterisation is covered by, and does not exceed, the parties’

prayers for relief (confirmation of previous decisions).

■ The parties have no constitutional right to present their case

specifically in relation to the legal characterisation of the facts which

is to be made by the arbitrator. However, the parties have such a

right where the arbitrator intends to rest his decision on a legal

ground on which neither party has relied in the proceedings and the

relevance of which could not be reasonably anticipated

(confirmation of previous decisions).

Summary of the Decision

X. GmbH entered into a consortium agreement with Y. GmbH & Co

KG. The consortium undertook as the general contractor to build a

biomass power plant for Stadtwerke Leipzig GmbH. Technical

difficulties and delays arose in the course of the erection works.

Y. GmbH & Co KG brought an arbitration against X. GmbH claiming

damages. X. GmbH contested the claim and made a counter-claim.

An ICC tribunal granted part of the claim made by Y. GmbH & Co KG

(paragraph 1 of the operative part of the award) and part of the counterclaim

made by X. GmbH (paragraph 2 of the operative part of the award).

Each party was ordered to bear a share in the costs to the extent of its

success (paragraphs 3 – 6 of the operative part of the award).