"Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings."
"Every Award shall be binding on the parties. By submitting the dispute to arbitration under these Rules, the parties undertake to carry out any Award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made."
Mr Partasides QC highlighted in this connection how in this respect in Lesotho Highlands Development Authority v Impregilo SpA and others  UKHL 43 the House of Lords decided that the wording of Article 28.6 of the ICC Rules is sufficient to exclude the s. 69 right of appeal.
The Parties shall use all reasonable efforts to settle amicably within 60 days, through negotiations, any dispute arising out of or in connection with this Contract or the breach, termination or invalidity thereof. Any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or invalidity thereof shall be finally settled by arbitration before three arbitrators, in accordance with a "Procedures for Arbitration" (attached hereto as Annex 2) which will survive the termination or suspension of this Contract. Any award of the arbitrators shall be final and binding upon the Parties. Either Party may seek execution of the award in any court having jurisdiction over the Party against whom execution is sought."
"8. The following procedural rules inter alia shall in any event be taken as agreed:
(a) the language of the arbitration shall be English;
(b) the tribunal may in its discretion hold a hearing and make an award in relation to any preliminary issue at the request in writing of either Party and shall do so at the joint request in writing of both Parties;
(c) the tribunal shall hold a hearing(s), in order to determine substantive issues unless the Parties agree otherwise in writing;
(d) all hearings shall be held in private;
(e) the tribunal shall issue its final award within 60 (sixty) days of the last hearing of the substantive issues in dispute between the Parties, unless the Parties otherwise agree in writing;
(f) any award or procedural decision of the tribunal shall be made by a majority of the arbitrators;
(g) the award shall be made in writing and shall be final and binding on the Parties;
(h) the award shall state the reasons on which the award is based, unless the Parties agree in writing that no reasons are to be given;
(i) each Party shall be responsible for his own costs of litigation. The costs of arbitration shall be equally born by both Parties, unless the arbitral tribunal otherwise decides.
9. The Parties shall decide on other procedural rules of arbitration, whenever and whatever it deems necessary, by mutual agreement. However, in case of disagreement or gap in such procedural rules of arbitration, the procedural rules of arbitration of the International Chamber of Commerce (ICC) shall apply. Nevertheless, it will not be explicitly or implicitly interpreted as submission to International Chamber of Commerce's authority."
"The court's task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. …"
"Arbitration 'according' I.C.C. rules must in my judgment mean 'in conformity with' them. No process is envisaged whereby the procedural rules have to be winnowed out from the remainder for the purpose of administering the conduct of the arbitration but not its effect. Such a process would itself be a fruitful source of dissension."
However, the incorporating language in paragraph 9 of Annex 2 to the GSPC is not the same since in Arab African there was no limit on the incorporation. In contrast, paragraph 9 incorporates "the procedural rules of arbitration of the International Chamber of Commerce" only in the event that there is "disagreement or gap" in the "procedural rules of arbitration" as agreed by the parties either in paragraph 8 of Annex 2 or by mutual agreement. I reject Mr Partasides QC's submission that paragraph 9 does not seek to narrow or winnow out particular rules from the ICC Rules which are agreed to be incorporated; on the contrary, that is precisely what it does with its reference to the "procedural rules of arbitration".
"… the use of the words 'final and binding', in terms of reference of the arbitration, are of themselves insufficient to amount to an exclusion of appeal. Such a phrase is just as appropriate, in my judgment, to mean final and binding subject to the provisions of the Arbitration Act 1996."
"[W]here bifurcation has been ordered and liability determined, is a defendant/respondent precluded on grounds of res judicata and/or abuse of process from referring to and relying on matters in support of its separate defence to quantum merely because those matters might or could also have been raised in relation to liability?"
Specifically, NIOC's contention is that, in considering whether the sanctions and other 'but for' defences in question were open to NIOC to run at the Remedies Phase, the Tribunal stated and applied the applicable legal test incorrectly.
"Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins ... The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is 'cause of action estoppel'. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages ... Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant's sole right as being a right upon the judgment ... Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties ... 'Issue estoppel' was the expression devised to describe this principle ... Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger."
"Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
Mr Howard QC highlighted, in particular, Lord Bingham's rejection of "too dogmatic an approach" in favour of a "broad, merits-based judgment" which focuses on "the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before".
"In the Remedies Phase ... NIOC has on occasion advanced arguments which, if correct, would or may have constituted grounds of contractual justification of or excuse for non-delivery. To the extent to which those arguments are inconsistent with declaration D [of the Award on Jurisdiction and Liability] quoted in paragraph 23 above, and the findings on which it is based, questions of issue estoppel or res judicata may arise. For example, NIOC did not, during the Jurisdiction and Liability Phase, raise arguments of frustration, or supervening impossibility of performance, to excuse non-delivery of gas. Some of the evidence in the Remedies Phase relating, for example, to sanctions, or to non-availability or failure of equipment, led in order to diminish the quantities which Crescent would have received had the Contract been performed, may need to be considered in that light."
"It is said that at the Commencement Date, Crescent was not in a position to sell and process gas. It had no agreement in place with Shalco, no tie-in of the SajGas plant had occurred and the SajGas plant had not been commissioned. On the Dubai side, no agreements had been finalised with CTI (the pipeline owner), DUGAS (the processor) or DUSUP (the purchaser). However, in the Award on Jurisdiction and Liability, the Tribunal found that 'Crescent acted prudently in refraining from any additional expenditures, effectively mitigating its damages'."
The Tribunal continued (at paragraph 624) by saying this:
"[In relation to NIOC's contention as to the impact of sanctions on Crescent's ability to perform.] There is, however, a more fundamental problem with NIOC's reliance on the suggested effect of sanctions. There is a finding, in the Award on Jurisdiction and Liability, that NIOC was in breach of its obligations to deliver gas from 1 December 2005 to 31 July 2014. If, as a result of sanctions, the GSPC had been unable, for a period, to be put into effect by either party, then that would have been an answer to Crescent's case on liability in respect of that period. It is not open to NIOC, at this stage of the arbitration, to rely upon sanctions as making it impossible for NIOC, or Crescent, to perform" (emphasis added).
"The Respondent refers to a series of events which it says would have delayed completion of NIOC's facilities and restricted or denied its capacity to meet its supply obligations. These include events of force majeure, which may have been relevant at the liability phase of the arbitration. This Award is made upon the premise that NIOC was in daily breach of its delivery obligations from 1 December 2005 to 31 July 2014" (emphasis added).
"[In relation to NIOC's arguments that sanctions would have affected Crescent's ability to perform the GSPC.] As to sanctions more generally, Mr Haberman referred to various stages at which sanctions might impede Crescent from performing its obligations (in particular its payment obligations) under the GSPC. Mr Watts explained how those impediments could have been circumvented. Moreover, if sanctions would have made it impossible for Crescent to have performed its obligations under the GSPC that is an issue that could have been raised at the liability phase of the arbitration" (emphasis added).
"NIOC contends that, even if it had performed its contractual obligations, there are major elements of uncertainty as to whether Crescent would have been able to sell and process the gas delivered."
"512. The Respondent has shown in its Counter-Memorial that, in a 'but-for' scenario, the impact of international sanctions must be taken into account in quantifying any profits that Crescent would have earned if the gas had flowed under the GSPC. Indeed, any failure to do so would result in Crescent receiving windfall damages to compensate for profits that it would in fact not have earned in the absence of a breach by NIOC.
513. The Respondent is not trying to hidebehind the sanctions as an event of force majeure that would have excused its non-performance, as the Claimants suggest. The complaint that raising this issue is an abuse of process and/or is precluded by res judicata is thus entirely misplaced.
514. Rather, the Respondent is simply pointing out that, in any quantification of alleged future lost profits arising out of a breach, it is appropriate to take into account any events that occurred in the real world that would have had an effect on Crescent's ability to perform during the period of the claim, independent of the breach. This is quite normal in any 'but-for' scenario. To ignore this would be to rely upon an incomplete and inaccurate 'but-for' scenario.
515. In this context, the Respondent has shown that it would have become illegal for Crescent to comply with its contractual payment obligations under the GSPC in October 2012, and that it would have become illegal for Crescent (and also for CNGC) to purchase the gas under the GSPC as from July 2013. Further, the Respondent has shown that, essentially as a result of the increasingly stringent sanctions that were adopted and implemented by the United States, it is highly likely that, long before it became illegal, Crescent's performance under the GSPC would already have become impossible in practice, and that, in the likely event of technical issues arising, these could not have been easily and quickly remedied."
"There is, however, a more fundamental problem with NIOC's reliance on the suggested effect of sanctions. There is a finding, in the Award on Jurisdiction and Liability, that NIOC was in breach of its obligations to deliver gas from 1 December 2005 to 31 July 2014. If, as a result of sanctions, the GSPC had been unable, for a period, to be put into effect by either party, then that would have been an answer to Crescent's case on liability in respect of that period. It is not open to NIOC, at this stage of the arbitration, to reply upon sanctions as making it impossible for NIOC, or Crescent, to perform."
Mr Howard QC submitted that this shows the Tribunal's error: thinking that, if sanctions could have been raised at the liability stage in order to defeat Crescent's claim through establishing that NIOC was unable to perform its contractual obligations, then, it was not open to NIOC to raise them in relation to quantum either, not in relation to NIOC's ability to perform its obligations but in relation to Crescent's ability to process and sell the gas which, but for NIOC's breach of contract, Crescent would have been supplied by NIOC.
"612. NIOC is precluded from running points that could and should have been raised earlier. The test is whether 'they could with reasonable diligence and should in all the circumstances have been raised': Gbangbola v Smith & Sheriff  3 All E.R. 730; Price v Nunn  EWCA Civ 1002; Virgin Atlantic Airways v Zodiac Seats UK Ltd  UKSC 46.
613. Many of NIOC's arguments are an abuse of process because they are inconsistent with the way in which NIOC put its case in the Liability Phase. Abuse of process applies to arbitral proceedings: Injazat Technology Capital Limited v Dr. Hamid Najafi  EWHC 4171 (Comm)".
Accordingly, Mr Diwan QC submitted, it is not open to NIOC now to complain that the Tribunal erred by applying the wrong ('could or might') test instead of the right ('could and should') test.
"As to subparagraph (b), the tribunal must have been asked to determine the question, but I do not think that the question needs to have been raised with the precision of a construction summons. All that is needed, in my judgment, is that the point was fairly and squarely before the arbitrator, whether or not it was actually articulated as a question of law."
What matters is that the question of law was integral to the resolution of the dispute, as explained by Cockerill J in CVLC Three Carrier Corp and another v Arab Maritime Petroleum Transport Company  EWHC 551 (Comm) at  when she said this:
"…What is necessary is that the question of law is inherent in the issues for decision by the tribunal…."
"(1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute. (2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached. (3) In the light of the facts and the law so ascertained, the arbitrator reaches his decision."
Mustill J, then, importantly, added at page 1475D-E:
"Stage (2) of the process is the proper subject matter of an appeal under the Act of 1979. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator has arrived at another; and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct, for the court is then driven to assume that he did not properly understand the principles which he had stated."
In other words, merely stating what the law is, and doing so correctly, does not mean that there can be no error of law if, in applying the law to the facts, it can be seen that the arbitrator has misapplied the law as he or she has stated it to be. Whether the present case is one in which it can properly be said that a correct application of the law to the facts found would lead "inevitably to one answer" is a matter which falls to be considered in answering the next, and critical, question: whether the Tribunal's decision was obviously wrong.
"The restriction of appeals to errors of law must be rigorously applied in order to give effect to the principles of party autonomy and minimum court intervention enshrined in ss 1(b) and (c) of the 1996 Act: see Geogas SA v Trammo Gas Ltd, The Baleares  1 Lloyd's Rep 215 per Steyn LJ at p. 228. … If the arbitrators have stated the correct legal principle, the court will start from the assumption that that is the principle which has been applied. If the law is not stated, or not fully stated, the court will nevertheless start from the assumption that the law has been correctly understood and applied; tribunals are not to be treated as in error if they do not spell out the law, and to require them to do so would be contrary to the desideratum of speedy finality which underpins the 1996 Act…. ."
"Mr Croall QC reminded me of the principles governing the approach to the reading of awards summarised by Teare J in Pace Shipping Co Ltd v Churchgate Nigeria Ltd (The 'Pace')  1 Lloyds' Rep 183 at para 15, including the oft cited dictum of Bingham J as he then was in Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd  2 EGLR 14 that the courts do not approach awards 'with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards with the object of upsetting or frustrating the process of arbitration'. However, there is no need to resort in this case to any presumption in favour of the benevolent reading of awards. The arbitrator's findings of fact are clear. In truth, this is another example of a disappointed party trying to dress up an appeal against findings of fact as one which turns on questions of law. … ."
The more so, given the eminence of the Tribunal since it is somewhat unlikely that, having been referred to Virgin Atlantic and the parties having directed submissions to the correct test, the Tribunal would, then, have sought to apply a different (and wrong) test.
"743. Crescent's capacity to accept gas, up to the contractually required volumes (relevantly, up to 500 MMscfd) is questioned by NIOC. There was delay in the completion of a new Emarat pipeline, but Mr Watts gave evidence, which the Tribunal accepts, that it would have been in place by November 2006 if gas flowed, and the existing gas pipeline grid in the Northern Emirates was sufficient to satisfy SEWA and FEWA.
744. There was evidence and argument as to the willingness of Shalco to process the gas to go to the Northern Emirates. BP Sharjah was a minority shareholder and there was evidence that is had particular concerns related to sanctions about being involved in processing gas of Iranian origin. However, this was a project of major local importance involving supplies to state-owned instrumentalities. As noted in paragraph 623 above, the Tribunal accepts that, in practice, it would not be likely to have been frustrated by BP's objections."
The same distinction is apparent from paragraph 745 of the Partial Award (again as set out above) itself, where the focus is on the effect of sanctions on Crescent's ability to perform "its obligations".
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