Edoardo Marcenaro, being the Head of International Legal and Corporate Affairs of Enel, the largest Italian utility, has vast experience of international arbitration in general1 and, in particular, the various dispute resolution mechanisms in international construction contracts.
His analysis discusses the dispute resolution mechanisms available for international construction contracts under FIDIC, both with respect to international commercial arbitrations and ICSID arbitrations. His conclusions, supported by detailed and interesting reference to relevant cases, essentially amount to the following; (i) it is always advisable to provide for the establishment of a Dispute Board in international construction contracts, (ii) when international commercial arbitration is used, such use should be accompanied by appropriate case management techniques, and (iii) ICSID arbitration is available when an international construction contract can be considered as an investment pursuant to Article 25 of the ICSID Convention. I support these conclusions without reservation. In fact, there is little I can add by way of introduction to this work, which appears to be clear, exhaustive and well documented. I believe it will be of great assistance to practitioners.
I will, then, confine myself to briefly describing certain selected problems generally encountered in international construction arbitrations, caused by the peculiar nature of the underlying construction contracts. This may complement, rather than introduce, Marcenaro’s paper.