INTERNATIONAL CHAMBER OF COMMERCE

ICC CASE N° 16205

FINAL A
AW
WARD IN CASE 16205

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 Table of Contents

Final Award in Case 16205 .......................................................................................................................................................................... 0

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 Final A
Award
ward in Case 16205

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47. In the present case, the Claimant contended at paragraph 41 of its Closing Statement that as
the figures in the Final Payment Certificate issued by the Employer's Representative "have been the
subject of lengthy negotiation and agreement within the procedures and authorities prescribed in
Sub-Clauses 13.11 and 13.13 the Arbitrator should be slow to interfere with those figures".

48. The Claimant has also at paragraph 27 of its Closing Statement submitted that:

The Arbitral Tribunal is bound by what the Employer's Representative had agreed in the Final
Payment Certificate "because it was agreed as that agreement was both within the procedures
set out in Clause 13 of the Conditions of Contract and within the authority of the Employer's
Representative given to him expressly by the Contract. Again, it is of the essence of commercial
arbitration that agreements between the parties that are properly made within proper authority
should be given effect".

49. The Claimant's contention in effect amounts to stating that so long as the procedures in the
FIDIC Conditions relating to the claims have been complied with and the action of the Employer's
Representative appears to be within his authority, the Respondents can no longer dispute the
same. In the present case following this argument, the Final Payment Certificate would represent
a binding agreement between the Claimant and the First Respondent which must be given effect
under Clause 13.13 of the FIDIC Conditions. If the Claimant's contention is correct, it would follow
that so long as sums in the Final Payment Certificate following negotiations between the Employer's
Representative and the Claimant have been agreed between them, then the Respondents are bound
to pay such sums in the Final Payment Certificate regardless of whether the Employer's
Representative has the authority of the First Respondent to enter into such an agreement in the first
place.

50. The Claimant while making reference to the FIDIC Conditions on the general authority of
the Employer's Representative has not been able to refer to any document showing the express
written authority given by the First Respondent to the Employer's Representative to agree with
the Claimant's claim for financing charges, overheads and exchange rate losses on their behalf. It
is highly unlikely that the Employer would have granted the Employer's Representative authority
to agree with the Claimant's exchange rate losses when it believes that such a claim is not
maintainable under the Agreement.

51. It is noted that the Respondents have in their Defence denied that the Employer's Representative
was competent to certify the amounts stated as payable in the Final Payment Certificate for
financing charges, overhead claims and exchange rate losses arising from the deductions and
refund of the VAT [Value Added Tax] and additional AIT [Advance Income Tax] charges. It is
clear that the Respondents have not given any express or implied authority to the Employer's
Representative to agree on what they regard as non-contractual claims by the Claimant.

52. Accordingly, for the above reasons, I am of the view that in respect of the Claimant's Primary

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 Case, the Sole Arbitrator is not bound by the amounts stated in the Final Payment Certificate as
being payable to the Claimant. The Sole Arbitrator may disallow such claims that the Claimant fails
to show that it is so entitled to payment pursuant to the Contract Conditions. Further, in respect
of the Claimant's contention that the Sole Arbitrator should not interfere on what has been agreed
between the Claimant and the First Respondent, it is clear from the Respondents' Answer to the
Claimant's Request for Arbitration and the Respondents' Closing Statement that they deny that the
Final Payment Certificate represents an agreement between the Respondents and the Claimant. As
such, my findings as to the actual amounts due and payable to the Claimant in this arbitration
(including such amounts as may be due under the Final Payment Certificate) are not contrary to the
terms of any agreement made between the Respondents and the Claimant.

53. I shall now deal with the specific financing charges claimed by the Claimant in Schedule 1. The
Claimant states in its Primary Case that it is entitled to claim financing charges under Clause 13.8 of
the FIDIC Conditions on the basis of non-payment of sums due under the Final Payment Certificate
as the FIDIC Conditions recognize that any delay by the Claimant in making payment of the amounts
certified as due should be compensated by financing charges. As for the applicable interest rate, the
Claimant contends that Clause 13.8 of the FIDIC Conditions should apply and that the rate should
be at the rate of three percentage points above the discount rate of the Central Bank of [State X]
for [State X currency] and the Bank of England for Pounds Sterling, compounded monthly for the
period of delay.

54. The Claimant further contends in its Alternative Case under Clause 13.16 of the FIDIC Conditions
that the same method of calculation of the cost of financing applicable to Clause 13.8 should be used
to calculate the financing charges.

55. In my view, the Claimant for the reasons as set out in paragraphs 35, 36, 37 and 38 above is
entitled to assume that the VAT and the AIT legislation would remain unchanged from the Base
Date during the duration of the Contract Works. If there is a change in legislation for VAT and AIT
resulting in the Claimant incurring "Cost" as defined under Clause 1.1.5.6 of the FIDIC Conditions,
the Claimant may rely on Clause 13.16 to claim such "cost" thereby incurred. In respect of the
Claimant's financing charges claim, I accept that the Claimant would have lost the use of the monies
deducted and refunded by the Respondents for the VAT and the additional AIT from the time of their
deduction to the time of their refund. This would necessarily be an expenditure incurred by the
Claimant as it is reasonable to expect the Claimant to have made use of the monies withheld during
the period of the deduction and refund.

56. As such, I find for the reasons set out in paragraph 55 above that Clause 13.16 of the FIDIC
Conditions is applicable and available to the Claimant as the basis for its claim for the refund of the
monies deducted for VAT and additional AIT by the Respondents.

57. Following from this finding, I find that the Claimant is entitled in principle to its claim for
financing charges for the amounts deducted and refunded by the Respondents for the VAT. As for
the applicable interest rate, I accept the rate of three percentage points above the discount rate of
the Central Bank of [State X] for [State X currency] and the Bank of England for Pounds Sterling,
compounded monthly for the period of delay. The Claimant's calculations as set out in the Witness
Statement of [Claimant's witness] for the basis of its claim for financing charges under Schedule 1
have not been challenged by the Respondents during the hearing. I have no reason to doubt the
correctness of these calculations.

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 58. In the premises, I find that the Claimant succeeds in its claim for the following financing charges
under Schedule 1 for the total sum of [amount] plus [amount] (being tax at 8.5% on this sum.) This
tax at 8.5% on the amount awarded comprises of 4% AIT and 4.5% VAT on the amounts awarded by
the Sole Arbitrator as claimed by the Claimant. This is on the basis that the Claimant will be liable
to pay tax at 8.5 % to the Second Respondent on the amounts awarded to it in this arbitration. As
set out at paragraph 62 of the Witness Statement of [Claimant's witness], the addition of the total
8.5% tax (4% AIT and 4.5% VAT) is to enable the Second Respondent to make a tax deduction in
accordance with the taxation requirements when making payment of the sums awarded in this
arbitration. Hence, the total amount due is [amount] (including 8.5% applicable tax). Accordingly, I
find that the Claimant is entitled to payment of the sum of [amount] (including 8.5% applicable tax)
as financing charges. The breakdown of this sum is as follows: ...

59. The next issue which I have to determine is whether the Claimant is entitled by reason of Clauses
13.1 and 13.16 of the FIDIC Conditions to recover the overhead charges as claimed in Schedule 1 of
the Claimant's Statement of Case and if so the amount that will be recoverable.

60. In order for the Claimant to succeed in this claim, it will have to show the basis or entitlement
under the Contract Conditions for this overhead claim, and how it had incurred this expenditure
resulting from the monies that were deducted and refunded to it for the VAT and additional AIT. In
particular, the Claimant must be able to show that such expenditure as incurred by it constitutes
"Cost" as defined under Clause 1.1.5.6 of the FIDIC Conditions.

61. In this regard, the Claimant in its Closing Statement contends that overheads include
contribution to off-site overheads and that as with all off-site overheads this falls to be calculated
as a percentage of turnover. It then referred to a letter from the Claimant to the Employer's
Representative dated 21 June 2005 ... which confirmed that in the interest of achieving an acceptable
settlement, the Claimant would agree to an amount of 7.67% of the monies deducted and returned
... for its overhead claim. The breakdown of the agreed 7.67% for its overhead claim is as follows:

Head office overhead: 5.67%

Contractors' All Risks insurance: 1%

Agent's fees: 1%

Total 7.67%

62. It contends that overheads incurred were head office overheads as opposed to site overheads
and that "head office overheads are a regular and necessary cost involved in the operation of any
construction company". It then submitted that it "is a universally-accepted norm that the recovery
of these costs is made by way of a percentage applied to expenditure/turnover".

63. As for the Contractors' All Risks insurance, it contends that "premiums paid for such cover are
calculated as a percentage based on turnover".

64. As for the Agent's fees it contends that "on overseas contracts the Claimant engaged a local agent
and his fees were 1% of all certified sums". Accordingly the Claimant contended that it incurred
additional expenditure of 1% as Agent's Fees on the reimbursed tax amounts that were certified by
the Employer's Representative and paid by the Respondents.

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 65. I am unable to accept the basis of the Claimant's head office overhead claims. I do not agree with
the Claimant that head office overheads were incurred as a result of monies that had been deducted
and refunded by the Respondents for VAT and additional AIT. During the period when these monies
were withheld, I do not see how additional head office overheads could have been incurred by the
Claimant.

66. The incurring of additional costs of head office overheads is not related in any way to the
expenditure incurred for the period when the monies were deducted and refunded for the VAT and
additional AIT. If any additional head office overheads had been incurred, such costs must result
from the additional time it took to complete the Works. If the Project completion period was not
prolonged by the deduction and refund of the VAT and additional AIT, and where the Claimant has
already been compensated by financing costs for the period of withholding of such monies, I do not
see the basis of how a claim for additional head office overheads can be made.

67. The computation of the loss for head office overheads cannot be based solely on a percentage
of turnover (in this case the amount of the monies withheld) as submitted by the Claimant. If the
contract period had not been prolonged resulting from the deductions and refund of the monies
for VAT and additional AIT, no additional head office overheads would have been incurred by the
Claimant. In any event, the Claimant has not in the arbitration adduced evidence to show how it
had incurred additional head office overheads based on the 5.67% of the monies retained.

68. In respect of the claim of 1% of the monies retained for "insurance premiums", again I do not see
how the payment of an additional insurance premium by the Claimant to its insurers could have
caused by the deductions and refunds of the monies for VAT and additional AIT. The calculation of
the quantum of insurance premium for the Works is usually fixed in advance based on the Project
costs, potential third party liabilities, the nature and risks associated with the Works and the time
period for the completion of the Works among other factors. For the Claimant to succeed in its claim
that it had incurred additional insurance premiums as a result of the said monies being deducted
and refunded, it has to provide evidence that it had to pay additional insurance premiums to its
insurer arising from the deduction and refund of such monies. No such evidence was provided.

69. Further, the Claimant failed to provide any evidence on how this additional insurance premium
fixed at 1% of the monies retained had been incurred by them as a result of the said monies being
withheld and refunded. It is not sufficient to refer to a letter from the Claimant to the Employer's
Representative which contains reference to the 1% claim of the monies deducted and refunded as
additional insurance premium without any explanation of how this figure is arrived at and how this
"expenditure" was incurred. This 1% figure is an arbitrary figure agreed upon between the Claimant
and the Employer's Representative as a compromise figure without any real understanding or
inquiry of how such "expenditure" was actually incurred. Accordingly, I disallow the Claimant's
claim for this item.

70. As for the claim of 1% of the Agent's fees, again this item of claim appears to be totally unrelated
to and is not caused by the deductions and refunds of the monies for VAT and additional AIT. No
evidence was provided by the Claimant to show how the payment of the additional 1% of its Agent's
fee was caused by the deduction and refund of the VAT and additional AIT by the Respondents. I
have my doubts on whether the fees payable by the Claimant to its Agent is a legitimate expenditure
which it may claim against the First Respondent under the Contract Conditions in the first place.
It cannot be said that payment of Agent's fees by a foreign contractor to his local agent is an

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 expenditure which is claimable under the Contract Conditions of most standard forms of building
contract. In my view, such payments to the local agent would not constitute "Cost" under Clause
1.1.5.6 of the FIDIC Conditions and I find that the Claimant is not entitled to its claim for this as part
of its overhead claim.

71. The evidence of [Claimant's witness] given at the hearing for the basis of the overhead claim
was essentially that the Claimant felt that this item of claim could be recovered as part of the "Cost"
incurred pursuant to the definition of cost under Clause 1.1.5.6 of the FIDIC Conditions. Clause
1.1.5.6 includes as cost, "overhead" arising from a claim under Clause 13.16.

72. In any case, he gave evidence that the Employer's Representative had already certified in the
Final Payment Claim that overheads should be paid and as such the Claimant is entitled to such a
claim in this arbitration. [Claimant's witness] however was not able to explain how the Claimant
had actually incurred the overhead costs claimed. He said that the 7.67% was a percentage agreed
with the Employer's Representative. His evidence on the basis of this claim can be found in the
Transcripts ...:

Arbitrator: You see, my understanding of overhead charges is really if the works had been
prolonged, I understand you incur overheads, but in a case like this, where monies are withheld or
where monies are deducted and paid back to you, and you have actually made a claim for financing
charges in respect of the deduction and the refund and the loss of interest for this monies which
you could have used, and you have also claimed for loss of exchange in terms of the fluctuation of
exchange rates, I'm just wondering what other losses would you suffer? It's easy to say overheads,
but what is the actual loss that you've suffered?

A. What is the actual loss? Well, we've been put ( by way of the change in legislation, we've been put
to considerable time and expense in pursuing that entitlement, for one. My time -

Arbitrator: Is that claimable, as part of overheads? Do you understand what I am trying to ask you?

A. Yes, I think I do. I believe I do. That's in the discussions and negotiations leading up to the final
payment certificate issued by the employer's representative, there was various other issues and
some concessions made by the claimant to achieve a negotiation settlement, and part and parcel of
those negotiations, the employer's representative determined and had agreed to the inclusion of an
overhead on the change in legislation costs attributed to the tax.

Arbitrator: Yes, but I'm not bound by what the ER has agreed. I just want to see what is the basis of
your entitlement for the overhead. I can understand if your works have been delayed, you will incur
overheads, for which you want to be paid. But where you are claiming for monies that have been
withheld and you're claiming interest and exchange losses, I'm just wondering what other losses
would you have suffered?

A. What other losses? I would agree with you, it's difficult to argue a loss in that context, in the same
context of an exchange rate or the financing loss.

Arbitrator: Because the definition of under Clause 1.5.6 includes overheads, it doesn't include
financing charges, but you can argue it's part of overheads, but the term "overhead" is not
something which allows someone to make, you know, any kind of claim that you want. There still
must be some basis for the claim. I mean, I don't know how you got the ( there is the explanation

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 of why 7.6 per cent, but really, I need to find out from you why this claim for overheads, in the way
that it is claimed?

A. To answer that, sir, the only thing I can say is that in accordance with the contract, under Clause
13.16, the ER has determined and certified additional sums in respect to the change in legislation,
and off the back of that, pursuant to 13.16, he's allowed for an overhead. I can't really answer it in
any ( or give any further explanation than that.

Arbitrator: But actually you made the claim, that's why he gave the overhead ( he allowed the
overhead claim. So when you made that claim, on what basis do you make that claim? You cannot
push it to the ER because the ER certified what you have claimed.

A. Purely on the basis that in accordance with the contract under 13.16, we have an entitlement to
recover the costs.

Arbitrator: Which you are recovering in terms of the financing charges from the monies that you -

A. Agreed, sir. And purely in accordance with the definitions provided in the contract, that that cost
includes for an overhead, and it's no more complicated than that. That's purely the basis on which
it was inserted into the account.

73. The evidence of [Claimant's witness] reveals that the Claimant has no real understanding of
the basis for its overhead claim. It relies on the definition of Cost in Clause 1.1.5.6 of the FIDIC
Conditions as including overheads as the basis for its claim. For this claim to succeed, it is not
sufficient to contend that the Employer's Representative has certified this claim as being payable
in the Final Payment Certificate. The evidence of [Claimant's witness] as set out above and in
particular the following extract from the Transcript quoted above supports my view:

Arbitrator: But actually you made the claim, that's why he gave the overhead ( he allowed the
overhead claim. So when you made that claim, on what basis do you make that claim? You cannot
push it to the ER because the ER certified what you have claimed.

A. Purely on the basis that in accordance with the contract under 13.16, we have an entitlement to
recover the costs.

Arbitrator: Which you are recovering in terms of the financing charges from the monies that you -

A. Agreed, sir. And purely in accordance with the definitions provided in the contract, that that cost
includes for an overhead, and it's no more complicated than that. That's purely the basis on which
it was inserted into the account.

74. It is noted that during the hearing and in his Witness Statement [Claimant's witness] did not
refer to the Claimant's letter ... to the Employer's Representative as the evidentiary basis for the
Claimant's overhead claim. If he had done so, the Respondents would have had the opportunity to
cross-examine him on this aspect of his evidence.

75. In my view, the Claimant has failed to make out its claim for overheads incurred as a result of
the deduction and refund of the monies for the VAT. It has failed to show how they have incurred
this cost. The manner in which it arrived at the figure of 7.67% of the monies deducted and
refunded is purely arbitrary and was intended as a compromise figure. The fact that the Employer's

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 Representative had certified this sum as being due to the Claimant in the Final Payment Certificate
does not mean that the First Respondent must pay this sum if in fact the Employer's Representative
was wrong in making such a certification. In my view from a reading of the FIDIC Conditions, it is
clear that this claim does not fall within the list of permitted claims such as the claims under Clause
13.3 (a) to (g) of the FIDIC Conditions for which the Employer's Representative has the power to
certify payment.

76. Further, this is not a claim which the Employer's Representative is authorized by the First
Respondent to agree with the Claimant on their behalf. If the Employer's Representative thought
he had the authority of the First Respondent to agree with the Claimant in respect of its claim
for this item, he should have obtained the written authority of the First Respondent. He does
not appear to have done so. The First Respondent has clearly stated that the Employer does
not have such authority from them. In any case, as the Sole Arbitrator I am not bound by the
Employer's Representative's Certifications of Payment under the FIDIC Conditions particularly if his
certification was wrongly made as being outside the scope of the FIDIC Conditions and without any
authority from the Employer.

77. In respect of the Claimant's claim for overhead charges of [amount] at Item C 3c in Schedule
1, the Claimant contends that the basis of this claim stands on a different footing from its other
overhead claim in Section E Change in Legislation in Schedule 1. It contended that this claim should
be treated separately from the overhead claims that form part of the claim under Sub-Clause 13.16
because the entitlement is under Sub-Clause 13.1 as part of the "actual costs".

78. Sub-Clause 13.1 includes the following provision:

Payment for the financing activity in the Activity Schedule will be made on the basis of the actual
costs incurred by the Contractor in connection with the Commercial Loan and the ECGD Cover.

79. Item C 3c is the overhead charge on the actual costs of providing the Project Financing Facility
which was a Provisional Sum item in the Contract. The Claimant contended that the "actual costs"
include a contribution to off-site overheads and as with all off-site overheads, the calculation should
be made on the basis of a percentage of turnover. The turnover in this calculation is the cost of
providing the finance which was [amount] (see Schedule 1 Item C 3a). To this figure the percentage
addition for overhead charges of 7.67% has been applied resulting in the amount claimed of ... In
any event, the Claimant contended that this item was not disputed by the Respondents.

80. The Claimant's contention that the Respondents have not disputed this item is not correct. In
the Terms of Reference at Clause 17.2 (5), the issue to be decided was: "Whether the Claimant is
entitled by reason of Clauses 13.1 and 13.16 of the FIDIC Conditions to recover the overhead charges
as claimed in Schedule 1and if so the amount that will be recoverable." Although the Respondents
did not specifically address this claim, it is clear from this issue to be determined and from their
Opening and Closing Statements that they disputed the Claimant's claim for overheads.

81. As set out above, the burden still rests with the Claimant to show that it is entitled to this item
of claim. While I accept that the basis of this claim is under Clause 13.1 of the FIDIC Conditions and
not Clause 13.16 (Change of Legislation), the Claimant must still show that it had actually incurred
actual "off-site overheads" arising from the repayment of the sum of [amount]. In the Witness
Statement of [Claimant's witness] at paragraphs 11 to 17 concerning the basis of the Claimant's
claim for Project Financing Facility-Tax (AIT and VAT), it appears that the refund made by the

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 Respondents related to the imposition of VAT and additional AIT which was subsequently refunded.

82. I am unable to accept in the absence of any evidence adduced by the Claimant that it had actually
incurred the sum of [amount] as off-site overheads arising from such deduction and refund and that
it is entitled to claim for this sum. The figure of 7.67% of the turnover which has been applied is
an arbitrary figure agreed to by the Employer's Representative. I have already expressed my views
that the Employer's Representative does not appear to have the authority of the First Respondent to
agree to this claim and that this claim is not within the FIDIC Conditions for him to certify payment.
In the premises, I find that the Claimant has not shown that it is entitled to this claim under the
FIDIC Conditions nor has it been able to show that it has suffered any actual loss. Accordingly, I
disallow the same.

83. In the premises I find that there is no basis under the Agreement for the Claimant's various
overhead claims as contained in Schedule 1 and I shall dismiss all of the Claimant's overhead claims.
For the purpose of completeness the following items of the Claimant's overhead claims in Schedule
1 are dismissed: ...

84. As for the Claimant's claim for its exchange rate losses, the Claimant contends that for the
purpose of calculating the VAT or AIT due on the part of the payment expressed in Pounds Sterling,
a rate of exchange was used to convert the Pounds Sterling amount certified into [State X currency].
The deductions were then made in [State X currency] from the amount certified in [State X
currency] so that all the deductions were made against the amounts in [State X currency]. By the
time the repayments were made, the exchange rate had changed so that when converting the [State
X currency] repayment back into Pounds Sterling there was a shortfall in the payment in Pounds
Sterling. The result was that in the Pounds Sterling element the Claimant received back less than
had been deducted. It is this shortfall that the Claimant now seeks to recover as an exchange rate
loss.

85. The Claimant's witness ... in his Witness Statement Annexure 1 - Explanation of Schedule 1 had
set out the basis of the Claimant's calculations for its exchange rate loss. The basis for this claim and
the calculations in support were not challenged by the Respondents during the hearing. The defence
raised by the Respondents to this claim is that such a loss is hypothetical and is not contemplated in
the FIDIC Conditions.

86. As the VAT in Pound Sterling had been deducted by the Respondents, the Claimant expected
payment of the monies deducted to be refunded back in Pound Sterling or its equivalent in [State
X currency]. Due to the requirements of the Respondents, the VAT liability in Pound Sterling had
to be converted into [State X currency] first before being deducted, then when the refunds were
made, they were converted back from [State X currency] into the same amount deducted in Pound
Sterling. The Claimant argued that they should not have to suffer a loss arising from this conversion
if the value of the Pound Sterling had appreciated vis-à-vis the [State X currency] when the refund of
the monies deducted and the conversion took place. It contends that it is entitled to be compensated
under Clause 13.16 of the FIDIC Conditions.

87. I assume that the Respondents would refund in [State X currency], the exact amounts in [State X
currency] which they had deducted against the Claimant for VAT. Although the Claimant's argument
appears to be cogent at first glance, I would have to ask what its position would be if in the
intervening period the [State X currency] had strengthened in value vis-à-vis the Pound Sterling so
that when the conversion from [State X currency] to Pound Sterling took place, the Claimant would

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 have made an unexpected windfall gain in Pound Sterling.

88. Would the Claimant in such an event give to the Respondents its windfall gain in the Pound
Sterling due to the fluctuation in the exchange rate? I doubt very much that the Claimant would
do so. In the same manner, the Respondents should not be penalized for the exchange rate loss
of the Claimant. As the value of the [State X currency] against the Pound Sterling will vary over
time depending on political, economic and other factors beyond the control of both the Claimant
and the Respondents, the loss (or profit as the case may be) which may be made by the Claimant
arising from the fluctuation of the exchange rate would be purely speculative and in this sense
hypothetical.

89. In any case it would strain the meaning of the term "Cost" under Clause 1.1.5.6 of the FIDIC
Conditions to regard a loss arising from exchange rate fluctuations as an expenditure of the
Claimant. There is no certainty that such expenditure will be incurred by the Claimant. There are no
other provisions in the FIDIC Conditions which the Clamant has relied upon as a basis of its claim
for the exchange rate loss apart from Clause 13.16. Accordingly, for the above reasons I find that the
Claimant fails in its claim for the exchange rate losses as set out in Schedule 1. For the purpose of
completeness, the following items of claim for exchange rate loss under Schedule 1 are disallowed:
...

90. I find that the Employer's Representative's Final Payment Certificate certifying that overhead
charges and exchange rate losses are payable to the Claimant is not binding on the First Respondent
(as the Employer) for the following two reasons:

(a) the Employer's Representative did not have the authority of the First Respondent to agree with
the Claimant in respect of these claims (see paragraph 76 above) and

(b) under the FIDIC Conditions, the overhead charges (as claimed in this arbitration) and exchange
rate losses (as claimed in this arbitration) are not payable (see paragraphs 83 and 89 above) .

For the reasons set out at paragraphs 57 and 58 above, I find that the FIDIC Conditions allow the
Claimant to claim for financing charges under Clause 13.16 read with the definition of Cost in Clause
1.1.5.6.

As set out at paragraphs 75, 82 and 89 above, I find that the FIDIC Conditions do not allow the
Claimant to claim for exchange rate losses and for overheads as claimed by the Claimant in this
arbitration.'

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