The Court of Ap­peal has dis­missed an ap­peal by Con­stru­to­ra OAS and up­held a High Court rul­ing that nul­li­fied its $850 mil­lion ar­bi­tra­tion award aris­ing out of the Solomon Ho­choy High­way ex­ten­sion project.

The de­ci­sion of Ap­pel­lant Judges Nolan Bereaux, Mark Mo­hammed and Pe­ter Ra­jku­mar af­firms Jus­tice Frank Seep­er­sad’s ear­li­er judg­ment in favour of the Na­tion­al In­fra­struc­ture De­vel­op­ment Com­pa­ny Ltd (Nid­co), which had chal­lenged the award grant­ed to OAS. In his rul­ing on De­cem­ber 14, 2022, Jus­tice Seep­er­sad or­dered that the mat­ter be re­mit­ted to the Lon­don Court of In­ter­na­tion­al Ar­bi­tra­tion for fur­ther re­con­sid­er­a­tion and OAS was al­so or­dered to pay costs.

Seep­er­sad found that, on the face of the award, the tri­bunal fell in­to er­ror, dis­re­gard­ed or mis­con­strued the law and/or failed to prop­er­ly eval­u­ate the ev­i­dence.

Seep­er­sad said, “Hav­ing re­viewed the ev­i­dence, which is be­fore the tri­bunal, this court is res­olute in its view that no rea­son­able ar­bi­tra­tor cog­nisant of the law and seized of the ev­i­dence ad­duced could have ar­rived at the po­si­tion re­flect­ed in the award.”

On April 16, ar­bi­tra­tors John Fel­las, Adam Con­sta­ble, KC, and An­drew White, KC, up­held OAS’s ar­bi­tra­tion claim against Nid­co and or­dered US$126.3 mil­lion in com­pen­sa­tion.

How­ev­er, in her sub­mis­sions be­fore Seep­er­sad, British King’s Coun­sel An­neliese Day claimed that the award is­sued by ar­bi­tra­tors should be set aside as the pan­el made er­rors when as­sess­ing the case. She cit­ed sev­er­al in­stances in which she claimed the pan­el failed to pro­vide rea­sons why it ig­nored ev­i­dence, which sup­port­ed Nid­co’s con­tentions. At­tor­neys rep­re­sent­ing OAS had ar­gued that the High Court did not have the ju­ris­dic­tion to hear the mat­ter, point­ing to its con­tract with Nid­co, which they said re­quired dis­putes to be re­solved through ar­bi­tra­tion.

In the present judg­ment, Ap­pel­lant judge Ra­jku­mar found that the Tri­bunal erred in law in sev­er­al ar­eas, in­clud­ing its treat­ment of the ar­bi­tra­tion clause, its in­ter­pre­ta­tion of OAS’s right to slow or sus­pend work un­der the con­tract, its view on whether OAS could re­sume work im­me­di­ate­ly, and its con­clu­sions af­fect­ing NID­CO’s right to ter­mi­nate the con­tract.

Dis­miss­ing the ap­peal, Ra­jku­mar ruled, “The or­ders of tri­al judge are af­firmed. For the sake of clar­i­fi­ca­tion, it is con­firmed that the re­mit­ting of the mat­ter to the Tri­bunal is for re­con­sid­er­a­tion in ac­cor­dance with the find­ings, con­clu­sions, and rea­son­ing of this court. Se­nior Coun­sel Rol­ston Nel­son, Ria Mo­hammed, Gre­go­ry Pan­tin and Miguel Vasquez rep­re­sent­ed OAS in­ter­ests, while King’s Coun­sel An­neliese Day, Ja­son Mootoo SC, Hugh Saun­ders, and Mar­celle Fer­di­nand rep­re­sent­ed Nid­co.

The dis­pute be­tween Brazil’s Con­stru­to­ra OAS SA and Nid­co has been mov­ing through courts and ar­bi­tra­tion for rough­ly a decade.

—Sascha Wil­son