• Copy the reference
  • Tutorial video

Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

TABLE OF FREQUENTLY USED ABBREVIATIONS

AAA Assignment and Acceptance Agreement
ACP The Respondent or Autoridad del Canal de Panamá
Additional Advances or Additional Advance Payments The APSS, APLG, APSE, APLG 2, and APVO149S collectively
Additional LOCs Additional letters of credit
Advances or Advance Payments The Additional Advances and the Initial Advances collectively
Alvarez I First Expert Report of Lilia Marcela Alvarez of 16 March 2018
Alvarez II Second Expert Report of Lilia Marcela Alvarez of 29 July 2018
AP JSG Advance Payment Joint and Several Guarantee
AP Parent Guarantee Advance Payment Parent Guarantee provided by Sofidra
APLG Advance Payment for Lock Gates
APLG 2 Advance Payment for Lock Gates - Second
APM Advance Payment for Mobilisation
APKS Advance Payment for Key Suppliers
APP Advance Payment for Plant
APSE Advance Payment for Specified Expenditures
APSS Advance Payment for Specified Suppliers
APVO149S Advance Payment VO No. 149 Suppliers
Canal The Panama Canal
Claimant 1 Grupo Unidos por el Canal, S.A. (also "GUPC" or the "Contractor")
Claimant 2 Sacyr S.A.
Claimant 2's Rejoinder on Jurisdiction Claimant 2's Rejoinder Submission on Jurisdiction and Admissibility of 20 July 2018
Claimant 2's Reply on Preliminary Issues Claimant 2's Reply Submission on Preliminary Issues of 25 May 2018
Claimant 2's Response on Jurisdiction Claimant 2's Responsive Submission on Jurisdiction and Admissibility of 16 March 2018
Claimant 2's Submission on Preliminary Issue Claimant 2's First Submission on (i) Preliminary Issues and (ii) Interim Measures of 7 February 2018
Claimant 3 Salini-Impregilo S.p.A.
Claimant 4 Jan De Nul N.V.
Claimant 5 Constructora Urbana S.A.
Claimant 6 Sofidra S.A.
Claimants Claimants 1-6 collectively
Claimants 1 and 3-6's Rejoinder on Jurisdiction Claimants 1 and 3-6's Rejoinder Submission on Jurisdiction and Admissibility of 20 July 2018
Claimants 1 and 3-6's Reply on Preliminary Issues Claimants 1 and 3-6's Reply on Preliminary Issues of 25 May 2018
Claimants 1 and 3-6's Response on Jurisdiction Claimants 1 and 3-6's First Responsive Submission on Jurisdiction and Admissibility of 16 March 2018
Claimants 1 and 3-6's Submission on Preliminary Issues Claimants 1 and 3-6's Submission on Preliminary Issues and Interim Measures of 7 February 2018
Cofferdam Arbitration ICC Arbitration No. 19962/ASM/JPA between Claimants 1-4 and the ACP
Cofferdam Awards The Cofferdam Jurisdiction Award and the Cofferdam Final Award collectively
Cofferdam Final Award Final Award issued by the Tribunal in Cofferdam Arbitration
Cofferdam Jurisdiction Award Interim Award on Jurisdiction issued by the Tribunal in the Cofferdam Arbitration
Contract The contract entered into by Claimants 2-5 and the ACP for the design and construction of the third set of locks for the Panama Canal
Contractor Grupo Unidos por el Canal, S.A. (also "Claimant 1" or "GUPC")
Court The International Court of Arbitration of the International Chamber of Commerce
DAB Dispute Adjudication Board
Desiati I First Witness Statement of Dino Desiati of 6 February 2018
English Law Guarantees Guarantees governed by English law and subject to the exclusive jurisdiction of the English courts that secure the Additional Advances
FAA U.S. Federal Arbitration Act
GAA Guarantor Arbitration Agreement dated 1 August 2014
Guarantee No. 55.1629 Bank guarantee provided by the Claimants to ACP
Guarantor Liability Issue The issue of whether any of Claimants 2-6 are liable to make payments to the ACP under the terms of the Panamanian Law Guarantees
Gunter Tribunal’s PO1 Procedural Order No. 1 issued in ICC Arbitration No. 20910/ASM/JPA (C- 20911/ASM) between Claimants 1-4 and the ACP by a tribunal presided over by Pierre-Yves Gunter
GUPC Grupo Unidos por el Canal, S.A. (also "Claimant 1" or the "Contractor")
Hoyos I First Legal Opinion of Dr Arturo Hoyos of 7 February 2018
Hoyos II Second Legal Opinion of Dr Arturo Hoyos of 15 March 2018
Hoyos III Third Legal Opinion of Dr Arturo Hoyos of 25 May 2018
Hoyos IV Fourth Legal Opinion of Dr Arturo Hoyos of 19 July 2018
ICC Rules ICC Rules of Arbitration in force as from 1 January 2012
ICC Secretariat Secretariat of the ICC Court
ILA International Law Association
Initial Advance Payments The APP and APM collectively (also referred to as the "Initial Advances")
JSG Joint and Several Guarantee dated 31 May 2010
Maintenance Services The maintenance services performed in accordance with Sub-Clause 1.1.5.16 of the Conditions of Contract
Moral I First Legal Expert Report of Octavio Del Moral of 16 March 2018
Moral II Second Legal Expert Report of Octavio Del Moral of 25 May 2018
Moral III Third Legal Expert Report of Octavio Del Moral of 20 July 2018
MoU Memorandum of Understanding of 13 March 2014
MoUVO Variation Agreement No. 108 of 1 August 2014
Panamanian Law Guarantees (or Guarantees) Collectively the JSG, the Parent Company Guarantee, the AP JSG and the AP Parent Guarantee subject to Panamanian law
Parent Company Guarantee Parent company guarantee dated 31 May 2010
PHB Post-hearing brief
PHTC Pre Hearing Telephone Conference
PO1 Procedural Order 1 of 23 August 2017
PO2 Procedural Order 2 of 4 January 2018
PO3 Procedural Order 3 of 21 February 2018
PO4 Procedural Order 4 of 20 March 2018
PO5 Procedural Order 5 of 20 April 2018
PO6 Procedural Order 6 of 20 April 2018
PO7 Procedural Order 7 of 25 August 2018
PO8 Procedural Order 8 of 10 September 2018
Project The project for the design and construction of the Third Set of Locks for the Panama Canal
Repayment Issue The issue of whether any of the Advance Payments are currently determinable (líquida), due and/or payable to the ACP by GUPC under the terms of the Contract as construed in accordance with Panamanian law
Respondent Autoridad del Canal de Panamá or "ACP"
Respondent's Answer Respondent’s Answer to the Claimants’ Request for Arbitration of 10 May 2017
Respondent's Rejoinder on Preliminary Issues Respondent’s Rejoinder Submission on Preliminary Issues of 20 July 2018
Respondent's Reply on Jurisdiction Respondent’s Reply Submission on Jurisdiction, Standing and Admissibility of 25 May 2018
Respondent's Response on Preliminary Issues Respondent’s Responsive Submission on Preliminary Issues and Interim Measures of 16 March 2018
Respondent's Submission on Jurisdiction Respondent’s Submission on Jurisdiction, Standing and Admissibility of 7 February 2018
Secretary General The Secretary General of the ICC International Court of Arbitration
ToR Terms of Reference
Troyano I First Legal Opinion of José Andrés Troyano Peña of 25 May 2018
Troyano II Second Legal Opinion of José Andrés Troyano Peña of 20 July 2018

I. INTRODUCTION

1.

This is an arbitration brought under the Rules of Arbitration of the International Chamber of Commerce ("ICC") in force as from 1 January 2012 (the "ICC Rules"). The seat of this arbitration is Miami, Florida, United States of America.

II. THE PARTIES AND THEIR REPRESENTATIVES

2.
The Claimants in this matter are:

1. GRUPO UNIDOS POR EL CANAL, S.A. ("Claimant 1" or "GUPC" or the "Contractor")
Edificio 12R85, Calle Brujas
Cocoli Arraijan (Cabecera)
District of Arraijan, Province of Panama
Republic of Panama

2. SACYR S.A. (previously Sacyr Vallehermoso, S.A., "Claimant 2" or "Sacyr")
Paseo de la Castellana 83-85
28046 Madrid
Spain

3. SALINI-IMPREGILO S.P.A. (previously Impregilo S.p.A., "Claimant 3" or "Salini-Impregilo")
Via dei Missaglia, 97
20142 Milan
Italy

4. JAN DE NUL, N.V. ("Claimant 4" or "Jan De Nul")
Tragel 60
9308 Hofstade - Aalst
Belgium

5. CONSTRUCTORA URBANA, S.A. ("Claimant 5" or "CUSA")
Calle 19 y Via España Final
Rio Abajo
Panama, Republic of Panama

6. SOFIDRA S.A. ("Claimant 6" or "Sofidra")
34-36, Parc d'Activités Capellen
8308 Capellen
Grand-Duchy of Luxembourg

3.
Claimants 1-6 are collectively referred to as the "Claimants". GUPC is wholly owned by Sacyr, Salini-Impregilo, Jan De Nul and CUSA (collectively, the "Shareholders" or "Claimants 2-5"). Claimant 4 is wholly owned by Claimant 6.
4.
Claimants 1 and 3-6 are represented in this arbitration by:

Carolyn B. Lamm
Francis A. Vasquez, Jr
Hansel Pham
Matthew N. Drossos
Karthik Nagarajan
Onur Saka
White & Case LLP
701 Thirteenth Street, N.W.
Washington, D.C. 20005
USA
E-mail: clamm@whitecase.com
fvasquez@whitecase.com
hpham@whitecase.com
mdrossos@whitecase.com
knagarajan@whitecase.com
onur.saka@whitecase.com

Phillip Capper
Paul Brumpton
John Rogerson
White & Case LLP
5 Old Broad Street
London EC2N 1DW
United Kingdom
E-mail: pcapper@whitecase.com
pbrumpton@whitecase.com
john.rogerson@whitecase.com

Nicolas Bouchardie
White & Case LLP
19 Place Vendome
75001 Paris
France
E-mail: nbouchardie@whitecase.com

Antonio Crivellaro
Andrea Carlevaris
Giovanni Minuto
BonelliErede
Via Michele Barozzi 1
20122 Milan
Italy
E-mail: antonio.crivellaro@belex.com
andrea.carlevaris@belex.com
giovanni.minuto@belex.com

Richard M. Preston
Jeffrey M. Hummel
Seyfarth Shaw LLP
975 F Street, NW
Washington, DC, 20004
USA
E-mail: rpreston@seyfarth.com
jhummel@seyfarth.com

Alejandro Ferrer
Ana Maria Legendre Burbano
Aleman, Cordero, Galindo & Lee
2do piso, Humboldt Tower
Calle 53 Este, Marbella
Panama City
Panama
E-mail: aferrer@alcogal.com
alegendre@alcogal.com

5.
Claimant 2 is represented in this arbitration by:

James Rogers
Matthew Kirtland
Janice Feigher
Ben Grant
NORTON ROSE FULBRIGHT
3 More London Riverside
London SE1 2AQ
United Kingdom
E-mail: James.Rogers@nortonrosefulbright.com
Matthew.Kirtland@nortonrosefulbright.com
Janice.Feigher@nortonrosefulbright.com
Ben.Grant@nortonrosefulbright.com

6.
Claimant 5 is represented in this arbitration by:

Sarah Biser
Craig Tractenberg
Fox Rothschild LLP
101 Park Avenue
17th Floor
New York, NY 10178
USA
E-mail: sbiser@foxrothschild.com
ctractenberg@foxrothschild.com

7.
The Respondent is Autoridad del Canal de Panamá, an autonomous legal entity of the Republic of Panama (the "Respondent" or the "ACP"). The ACP's address is:

AUTORIDAD DEL CANAL DE PANAMÁ
Attn: Mr. Jorge de la Guardia
Building 740, Corozal West
Panama City
Panama

8.
The Respondent is represented in this arbitration by:

Nick Henchie
Louise Woods
Harriet Foster
VINSON & ELKINS LLP
20 Fenchurch Street
24th Floor
London EC3M 3BY
United Kingdom
E-mail: nhenchie@velaw.com
lwoods@velaw.com
hfoster@velaw.com

James Lloyd Loftis
Peter Danysh
VINSON & ELKINS LLP
1001 Fannin Street
#2500
Houston, TX 77002
United States of America
E-mail: jloftis@velaw.com
pdanysh@velaw.com

Raid Abu-Manneh
George Fisher
MAYER BROWN INTERNATIONAL LLP
201 Bishopsgate
London EC2M 3AF
United Kingdom
E-mail: rabu-manneh@mayerbrown.com
gfisher@mayerbrown.com

Andrés Jana
BOFILL MIR & ALVAREZ JANA
Av. Andrés Bello 2711
Piso 8
Torre Costanera, Las Condes
Santiago 7550611
Chile
E-mail: ajana@bmaj.cl

Manus McMullan QC
Peter Land
ATKIN CHAMBERS
1 Atkin Building
Gray's Inn
London WC1R 5AT
United Kingdom
Email: mmcmullan@atkinchambers.com
pland@atkinchambers.com

Carlos Arrue Montenegro
Karla Arias
ASESORÍA JURÍDICA DE LA VICEPRESIDENCIA DE INGENIERÍA Y ADMINISTRACIÓN DE PROGRAMAS
Autoridad del Canal de Panama
Edificio 739, Corozal Oeste
Panama
Republic of Panama
E-mail: Carrue@pancanal.com
Karias@pancanal.com

III. THE ARBITRAL TRIBUNAL

9.

On 7 June 2017, pursuant to Article 13(2) of the ICC Rules, the Secretary General of the ICC International Court of Arbitration ("Secretary General") confirmed as co-arbitrator jointly nominated by the Claimants:

Prof. Guido Santiago Tawil
Arribeños 1740, piso 10
1426 Ciudad Autónoma de Buenos Aires
Argentine Republic
Email: arb-gtawil@arb-chambers.com

10.

On 7 June 2017, pursuant to Article 13(2) of the ICC Rules, the Secretary General confirmed as co-arbitrator nominated by the Respondent:

Stephen Furst QC
Keating Chambers
15 Essex Street
London WC2R 3AA
United Kingdom
Email: sfurst@keatingchambers.com

11.

On 9 August 2017, pursuant to Article 13(2) of the ICC Rules, the Secretary General confirmed as President of the Arbitral Tribunal jointly nominated by the Parties:

Prof. Gabrielle Kaufmann-Kohler
Lévy Kaufmann-Kohler
3-5, rue du Conseil-Général
CP 552
1211 Geneva 4
Switzerland
Email: gabrielle.kaufmann-kohler@lk-k.com

12.
With the consent of the Parties, the Arbitral Tribunal appointed a Secretary to the Tribunal, whose tasks are described in the ToR signed by the Parties and the Tribunal (paras. 13-14), in the person of:

Dr. Michele Potestà
Lévy Kaufmann-Kohler
3-5, rue du Conseil-Général
CP 552
1211 Geneva 4
Switzerland
Tel: +41 22 80 96 200
Fax: +41 22 80 96 201
Email: michele.potesta@lk-k.com

IV. THE ARBITRATION AGREEMENTS AND THE APPLICABLE LAW

A. The Arbitration agreements

13.
The Claimants commenced this arbitration on the basis of the following contractual texts:1

CONDITIONS OF CONTRACT2

20.6 ARBITRATION

Unless settled amicably, any dispute in respect of which the DAB's decision (if any) has not become final and binding shall be finally settled by international arbitration in law (within the meaning of Panamanian law). Unless otherwise agreed by both Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("the Rules");

(b) In addition to the Rules, the arbitrators will be guided but will not be bound, by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with the Rules;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the language for communications defined in Sub-Clause 1.4 [Law and Language]

(e) the venue of the arbitration shall be Miami, Florida-United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C §§ 1 et seq.

The arbitrators shall have full power to open up, review and revise any certificate, determination, instruction or opinion or valuation of the Employer’s Representative, and any decision of the DAB, relevant to the dispute. Nothing shall disqualify the Employer’s Representative from being called as a witness and giving evidence before the arbitrators on any matter whatsoever relevant to the dispute.

Neither Party shall be limited in the proceedings before the arbitrators to the evidence or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration.

Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Employer’s Representative and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works.

GUARANTOR ARBITRATION AGREEMENT3

6 GOVERNING LAW AND JURISDICTION

6.1 This Agreement shall be governed by and construed in accordance with the laws of the Republic of Panama.

6.2 Any and all disputes or controversy arising out of or related to this Agreement, including its interpretation, application and enforcement, shall be resolved by international arbitration in law (within the meaning of Panamanian law).

6.3 Unless otherwise agreed by both Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("the Rules");

(b) in addition to the Rules, the arbitrators shall be guided but will not be bound, by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with the Rules, provided that the two arbitrators nominated by the Parties shall nominate by mutual agreement the presiding arbitrator;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the English language;

(e) the seat, or legal place, of the arbitration shall be Miami, Florida-United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C §§ 1 et seq. except as modified herein or by the Rules.

JOINT AND SEVERAL GUARANTEE4

9. DISPUTE RESOLUTION

9.1 This guarantee shall be governed by and construed in accordance with the laws of the Republic of Panama.

9.2 Any dispute arising out of, under or in connection with this Guarantee or out of the subject matter of this Guarantee shall be finally settled by international arbitration in law (within the meaning of Panamanian law). Unless otherwise agreed by the Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("the Rules");

(b) in addition to the Rules, the arbitration shall be conducted according to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with the Rules;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the English language;

(e) the venue of the arbitration shall be Miami, Florida-United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C §§ 1 et seq.

Arbitration may be commenced prior to or after completion of the Works.

PARENT COMPANY GUARANTEE5

9. DISPUTE RESOLUTION

9.1 This Guarantee shall be governed by and construed in accordance with the laws of the Republic of Panama.

9.2 Any dispute arising out of, under or in connection with this Guarantee or out of the subject matter of this Guarantee shall be finally settled by international arbitration in law (within the meaning of Panamanian law). Unless otherwise agreed by both Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("the Rules");

(b) in addition to the Rules, the arbitration shall be conducted according to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with these Rules;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the English language;

(e) the venue of the arbitration shall be Miami, Florida-United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C §§ 1 et seq.

Arbitration may be commenced prior to or after completion of the Works.

ADVANCE PAYMENT JOINT AND SEVERAL GUARANTEE6

9. DISPUTE RESOLUTION

9.1 This Guarantee shall be governed by and construed in accordance with the laws of the Republic of Panama.

9.2 Any dispute arising out of, under or in connection with this Guarantee or out of the subject matter of this Guarantee shall be finally settled by international arbitration in law (within the meaning of Panamanian law). Unless otherwise agreed by the Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("the Rules");

(b) in addition to the Rules, the arbitration shall be conducted according to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with these Rules;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the English language;

(e) the venue of the arbitration shall be Miami, Florida-United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C §§ 1 et seq.

Arbitration may be commenced prior to or after completion of the Works.

ADVANCE PAYMENT PARENT GUARANTEE7

9. DISPUTE RESOLUTION

9.1 This Advance Payment Parent Guarantee shall be governed by and construed in accordance with the laws of the Republic of Panama.

9.2 Any dispute arising out of, under or in connection with this Advance Payment Parent Guarantee or out of the subject matter of this Advance Payment Parent Guarantee shall be finally settled by international arbitration in law (within the meaning of Panamanian law). Unless otherwise agreed by both Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("the Rules");

(b) in addition to the Rules, the arbitration shall be conducted according to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with these Rules;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the English language;

(e) the venue of the arbitration shall be Miami, Florida-United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C §§ 1 et seq.

Arbitration may be commenced prior to or after completion of the Works.

14.
In accordance with Sub-Clause 20.6 of the Conditions of Contract, Article 6 of the Guarantor Arbitration Agreement (the "GAA"), Article 9 of the Joint and Several Guarantee (the "JSG"), Article 9 of the Parent Company Guarantee, Article 9 of the Advance Payment Joint and Several Guarantee (the "AP JSG"), and Article 9 of the Advance Payment Parent Guarantee (the "AP Parent Guarantee") (all of which are reproduced supra at para. 13), the seat of this arbitration is Miami, Florida, United States of America.8
15.
In accordance with the same provisions, the language of the arbitration is English.9

B. Applicable substantive law

16.
The law applicable to the merits is Panamanian law.
17.
Section 1.4 of the Conditions of Contract provides as follows:

Law and Language

The Contract shall be governed by the laws of the Republic of Panama.

[...]

18.
In addition, Article 6.1 of the GAA, Article 9.1 of the JSG, Article 9.1 of the Parent Company Guarantee and Article 9.1 of the AP JSG (all of which are reproduced supra at para. 13), provide that these agreements shall be governed by and construed in accordance with the laws of the Republic of Panama.
19.
Furthermore, in accordance with Sub-Clause 20.6 of the Conditions of Contract, Article 6.3 of the GAA, Article 9.2 of the JSG, Article 9.2 of the Parent Company Guarantee, Article 9.2 of the AP JSG and Article 9.2 of the AP Parent Guarantee (all of which are reproduced supra at para. 13), the arbitration shall be decided in law (within the meaning of Panamanian law).

V. OVERVIEW OF THE DISPUTE

A. The factual background

20.
On 11 August 2009, Claimants 2-5 and the ACP entered into a contract for the design and construction of the Third Set of Locks for the Panama Canal (the "Contract"),10 which incorporated certain terms as Conditions of Contract ("Conditions of Contract").11 The project for the design and construction of the Third Set of Locks for the Panama Canal is also referred to as the "Project". The Panama Canal is also referred to as the "Canal". On 31 May 2010, by an Assignment and Acceptance Agreement (the "AAA"),12 Claimants 2-5 assigned all of their rights and obligations under the Contract to Claimant 1.
21.
At the same time, Claimants 2-5 entered into the JSG with the ACP, by which they agreed to guarantee, as primary obligors, the performance by Claimant 1 of its obligations under the Contract.13 Sofrida and the ACP also signed the Parent Company Guarantee dated 31 May 2010, whereby Sofidra guaranteed Jan De Nul's obligations under the JSG (the "Parent Company Guarantee").14
22.
The Contract, the JSG, and the Parent Company Guarantee are governed by Panamanian law and any disputes arising out of or in connection with these agreements are subject to ICC arbitration in Miami, Florida.
23.
In 2009/2010, pursuant to the Contract, the ACP made an Advance Payment for Plant ("APP") to the Contractor for an amount of approximately USD 300 million,15 and an Advance Payment for Mobilization ("APM") for an amount of approximately USD 300 million.16 The APP and the APM are collectively referred to as the "Initial Advances" (or the "Initial Advance Payments"). The Initial Advances were to be amortized by deductions from the regular monthly payments to be made to GUPC as the works progressed. These payments were to be confirmed by interim payment certificates issued by the ACP against GUPC's works and its claims for payment.
24.
The Initial Advances are secured by the following three letters of credit:

a. The APM is secured by an irrevocable letter of credit from Scotiabank for USD 300 million;17

b. The APP is secured by irrevocable letters of credit from

i. Scotiabank for USD 100 million,18 and

ii. HSBC (Banistmo) for USD 200 million.19

25.
The Shareholders also provided counter-guarantees (standby letters of credit) from European banks for GUPC to be able to obtain the letters of credit.20
26.
In the course of 2013, due to cash flow difficulties experienced by Claimant 1 as the Project progressed, the ACP provided additional advance payments, which GUPC could use solely for specified purposes (for instance to perform certain parts of the works or to pay certain suppliers). These further advances are referred to as the "Additional Advances" (or the "Additional Advance Payments") and include the following:

a. the Advance Payment for Specified Suppliers ("APSS") in the maximum amount of USD 150 million;

b. the Advance Payment for Lock Gates ("APLG") in the maximum amount of USD 19,131,685.60;

c. the Advance Payment for Specified Expenditures ("APSE") of USD 100 million;

d. the Advance Payment for Lock Gates - Second ("APLG 2") of USD 30 million, subsequently reduced to USD 18 million; and

e. the Advance Payment VO No. 149 Suppliers ("APVO149S") of USD 120 million.

27.
The Additional Advances and the Initial Advances are collectively referred to as the "Advances" or the "Advance Payments".
28.
Claimants 2-6 provided further guarantees to secure the Additional Advances. The APSS, APLG and APSE were all secured by the original JSG and Parent Company Guarantee, the AP JSG21 (provided by the Shareholders) and the AP Parent Guarantee22 (provided by Sofidra). All of these guarantees (the JSG, the Parent Company Guarantee, the AP JSG and the AP Parent Guarantee) are subject to Panamanian law and provide for ICC arbitration in Miami (the "Panamanian Law Guarantees"). Subsequently, in 2015/2016, the Parties secured the Additional Advances with further guarantees governed by English law and subject to the exclusive jurisdiction of the English courts (the "English Law Guarantees").
29.
On 13 March 2014, the Parties entered into a memorandum of understanding ("MoU"), agreeing on a moratorium on the repayment of the Existing Advances (as defined therein).23 On 1 August 2014, the Parties entered into Variation Agreement No. 108 ("MoUVO"), which integrated the Parties’ agreement under the MoU into the Contract.24
30.
On 1 August 2014, the Parties also entered into the GAA,25 which is a reaffirmation of the Parties’ responsibilities with respect to the disputes between them.
31.
In June 2016, the ACP took over the expanded Panama Canal and has been operating it since.26

B. The main issues in dispute

32.
This section provides a brief overview of the merits of the Parties' dispute. It does not purport to summarize the Parties' positions on the merits in detail, which are dealt with more extensively in the section concerning the claims on the merits (infra at X).

1. The Claimants’ position

33.
According to the Claimants, the primary matter in dispute is whether any of the Advance Payments are currently determinable (líquida), due and/or payable to the ACP by GUPC under the terms of the Contract as construed in accordance with Panamanian law (the "Repayment Issue").27 The secondary issue in dispute is whether or not any of Claimants 2-6 are liable to make any payments to the ACP under the terms of the Panamanian Law Guarantees (the "Guarantor Liability Issue").28
34.
The Claimants' primary case is that, under the Contract, the Advances are not due, determinable or payable until the disputes over the Contract price that are currently pending before different ICC tribunals are resolved.
35.
The Claimants argue that it was the Parties' joint intention to resolve all their disputes in international arbitration by October 2018, as is clear from the negotiating history of the MoU and the MoUVO, incorporated into Sub-Clause 20.10 of the Contract. When by early 2014, the works were suspended due to cost overruns and unresolved claims, the ACP agreed to co-finance the remaining costs to facilitate completion of the Project, and its handover to the ACP.
36.
The Claimants contend that the core of the co-financing agreement involved the suspension of the payment of the Advances and the contribution by the Claimants of cash and other security packages, until the conclusion of the dispute resolution process to determine the Contract price. The common intent to reach a final determination of all disputes by 31 October 2018 will not materialize, as the ACP's bad faith and hostile conduct has delayed the arbitrations.
37.
Thanks to their efforts, so the Claimants further submit, the expansion of the Panama Canal was completed and handed over to the ACP in June 2016. As a result, the ACP cannot demand payment of the Advances as if they were loans independent from the disputed Contract price in clear disregard of the joint economic purpose of the MoU and before liability for increased costs is decided in accordance with the dispute resolution process.
38.
Furthermore, the Claimants contend that the ACP is barred from demanding payment of the Advances under the doctrines of actos propios and/or abuse of rights. In the Claimants’ view, the ACP is further precluded from seeking repayment of the Advances pursuant to Article 985 of the Panamanian Civil Code, because it is and was at all material times in breach of its reciprocal obligations under the Contract.
39.
The Claimants’ alternative case is that no obligation to pay the Additional Advances arose on 31 December 2016 (as alleged by the ACP) and there remains no obligation to pay the Additional Advances because it was objectively impossible within the meaning of Panamanian law to provide certain letters of credit contemplated by the Contract and because of the ACP’s refusal to accept equivalent security proffered by the Claimants.
40.
Finally, the Claimants contend that the ACP has wrongfully withheld certain payments due to GUPC for the maintenance services performed in accordance with Sub-Clause 1.1.5.16 of the Conditions of Contract (the "Maintenance Services") and that they may exercise set-off rights against the amounts wrongfully withheld for such Maintenance Services.

2. The Respondent’s position

41.
In sum, the Respondent maintains that (i) the Initial Advance Payments fell due for repayment on 1 June 2018, and (ii) the Additional Advance Payments fell due for repayment on 31 December 2016.
42.
The Respondent submits that the Contract contains lengthy and comprehensive repayment provisions with express final dates for repayment in respect of each one of the Advance Payments, with specific mechanisms for the deferral of such dates as well as for the acceleration of repayment due to unexcused delays in work performance. There is not a single contractual clause which provides a link between the deferral of repayment of the Advance Payments and the final resolution of all disputes. The express terms of the MoUVO (which superseded the MoU and introduced the Parties’ final agreement into the Contract) make clear that the MoU and MoUVO were designed solely to bring about the completion of the works. Therefore, the timing of the obligations to repay the Advance Payments was directly linked not to the resolution of the disputes, but to the Contractor’s performance and completion of the remaining works.
43.
The Respondent argues that linking the timing of the repayment obligations to the resolution of the disputes would be illogical and would make no commercial sense, because it would allow the Contractor to indefinitely delay repayment by its unilateral power to raise new claims or delay existing claims. In fact, the Claimants have deliberately delayed pursuing their claims in arbitration as part of an apparent strategy to prevent the recovery by the ACP of their Advance Payments.
44.
The Respondent asserts that the Claimants have commenced this arbitration as a de facto appeal of the Gunter Tribunal’s PO1 (as defined infra). It submits that the Gunter Tribunal considered the same arguments as those which the Claimants advance here and unequivocally supported the ACP’s position, rejected the Claimants’ mischaracterization of the facts and their misrepresentation of Panamanian law, and recognized the clear repayment provisions of the Contract that the Parties had freely agreed.29
45.
Furthermore, for the Respondent, the Claimants’ Panamanian law arguments are misconceived. In particular, the Respondent argues that based on the proper interpretation of the Contract the amounts and the due dates are known. Similarly, the doctrines of actos propios or abuse of rights do not prevent the ACP from seeking payment of the monies due. Finally, with regard to the argument that repayment of the Advance Payments is reciprocal, the ACP submits that the provisions requiring repayment of the Advance Payments are unconnected with the resolution of any disputes as to the Contract price, and that the obligations to pay for the works and to recognize any legitimate entitlements to additional payment and/or extensions of time are not reciprocal to the repayment of the Advances, and in any event have been complied with by the ACP.
46.
On the payment of the Maintenance Services, the ACP's submission is that in light of the Claimants' failure to repay the Advance Payments, it is contractually entitled to withhold the maintenance payments, and the Claimants have no right of set-off in respect of the sums withheld by the ACP.

VI. THE PARTIES’ PRAYERS FOR RELIEF

47.
Claimants 1 and 3-6's have sought the following relief in this arbitration:

B. REQUEST FOR RELIEF: JURISDICTION

268. With respect to jurisdiction, standing, and admissibility, Claimants 1 and 3-6 respectfully request the Tribunal to:

(i) Dismiss all of ACP's objections in their entirety, and declare that the Tribunal has jurisdiction over all of the claims put forth by Claimants 1 and 3-6 in this arbitration, that Claimants 1 and 3-6 have standing to assert these claims, and that these claims are admissible;

(ii) Order ACP to pay the costs of this phase of the arbitration, including the fees and expenses of the Tribunal, the ICC's costs, the costs for legal representation, and all other costs borne by Claimants 1 and 3-6 to be specified at a later date; and

(iii) Grant Claimants 1 and 3-6 any further relief and costs that the Tribunal deems appropriate.

C. REQUEST FOR RELIEF: PRELIMINARY ISSUES OF PANAMANIAN LAW RELATED TO THE PAYMENT OF THE ADVANCES

269. Claimants 1 and 3-6 respectfully request the Tribunal to grant declarations that:

(i) On the proper interpretation of the Contract, GUPC S.A. is not obliged to pay any part of the Initial Advances and/or the Additional Advances to ACP until the ongoing disputes over the Contract Price and GUPC S.A.'s entitlements to recover additional costs have been resolved; and/or

(ii) Neither the Initial Advances nor Additional Advances are currently determined, determinable, due and/or payable (líquida) by GUPC S.A. under the Contract and/or Panamanian law; and/or

(iii) ACP is precluded from demanding repayment of the Initial Advances and/or the Additional Advances until the ongoing disputes between the Parties over the Contract Price have been resolved, under the doctrines of "actos propios" and/or abuse of rights; and/or

(iv) ACP is precluded from demanding repayment of the Initial Advances and/or Additional Advances due to ACP's breaches of reciprocal obligations under the Contract.

270. In the alternative, and without prejudice to the declarations sought above, Claimants 1 and 3-6 respectfully request the Tribunal to grant declarations that:

(i) The provision of the Additional LOCs was impossible within the meaning of Article 1001 of the Panamanian Civil Code; and/or

(ii) ACP was obliged pursuant to Article 1015 of the Panamanian Civil Code and Articles 130 and 133 of ACP’s Regulation to accept equivalent guarantees to the Additional LOCs proffered by Claimants (in particular, the European LOCs) or other security already in place (in particular, the English Law Guarantees and/or Panamanian Law Guarantees); and/or

(iii) ACP is precluded under the doctrine of abuse of rights from demanding repayment of the Additional Advances in light of Claimants’ offer to provide, and ACP’s refusal to accept the alternative security proffered by Claimants; and

(iv) The APSS, APLG, APSE, and AP VO149S are not due, determinable, and/or payable until the resolution of the disputes pursuant to Sub-Clause 20.10.

D. REQUEST FOR RELIEF: PRELIMINARY ISSUE RELATED TO WITHHELD PAYMENTS

271. In addition to the other relief sought, Claimants 1 and 3-6 respectfully request the Tribunal to:

(i) Declare that ACP is not entitled to withhold amounts due to GUPC S.A. (with respect to Maintenance Services or otherwise), on the basis of Sub-Clause 14.6 of the Conditions of Contract or otherwise; and

(ii) Declare that ACP is required to pay to GUPC S.A. all amounts improperly withheld plus interest accruing from the date on which each such amount should have been paid at a rate or rates to be determined by the Tribunal.

E. FURTHER AND OTHER RELIEF

272. Claimants 1 and 3-6 also seek any other relief that the Arbitral Tribunal considers appropriate, and the costs of the arbitration, including the fees and expenses of the Arbitral Tribunal, the ICC’s costs, and the costs of Claimants’ legal representation and experts.30

48.
Claimant 2’s prayers for relief are as follows:

8.3 Sacyr respectfully requests the Tribunal to:

(a) Dismiss all of ACP’s jurisdictional objections in their entirety, and declare that the Tribunal has jurisdiction over all of the claims put forth by Sacyr in this arbitration, that Sacyr has standing to assert these claims, and that these claims are admissible;

(b) Order ACP to pay the costs of ACP’s jurisdictional objections, including the fees and expenses of the Tribunal, the ICC’s costs, the costs for legal representation, and all other costs borne by Sacyr to be specified at a later date; and

(c) In relation to jurisdiction, grant Sacyr any further relief and costs that the Tribunal deems appropriate.

8.4 Sacyr respectfully requests the Tribunal to grant declarations that:

(a) On the proper interpretation of the Contract GUPC is not obliged to pay any part of the Initial Advances and/or the Additional Advances to ACP until all disputes between the ACP and GUPC have been resolved;

(b) Neither the Initial Advances nor Additional Advances are currently determinable, due and/or payable by GUPC under the Contract and/or Panamanian law; and/or

(c) ACP is precluded from demanding repayment of the Initial Advances and/or the Additional Advances until the ongoing disputes between the parties over the Contract Price have been resolved, under the doctrines of "actos propios" and/or abuse of rights; and/or

(d) ACP is precluded from demanding repayment of the Initial Advances and/or Additional Advances due to ACP's breaches of reciprocal obligations under the Contract.

8.5 In the alternative and without prejudice to the declarations sought above, Sacyr respectfully requests the Tribunal to grant declarations that:

(a) The provision of the Additional Letters of Credit was impossible within the meaning of Article 1001 of the Panamanian Civil Code; and/or

(b) ACP was obliged pursuant to Article 1015 of the Panamanian Civil Code and Articles 130 and 133 of ACP’s Regulation to accept equivalent guarantees to the Additional Letters of Credit proffered by Claimants (in particular, the European LOCs) or other security already in place (in particular, the English Law Guarantees and/or Panamanian Law Guarantees); and/or

(c) ACP is precluded under the doctrine of abuse of rights from demanding repayment of the Additional Advances in light of the Claimants' offer to provide and ACP's refusal to accept the alternative security proffered by the Claimants; and/or

(d) The APSS, APLG, APSE, and AP VO149S are not determinable, due and/or payable until the resolution of the disputes pursuant to Clause 20.10 of the Contract.

8.6 Sacyr also seeks any other relief that the Tribunal considers appropriate, and the costs of the arbitration in relation to the Preliminary Issues, including the fees and expenses of the Tribunal, the ICC’s costs and the costs of Sacyr’s legal representation and experts.

8.7 In any event, Sacyr seeks the costs of the arbitration in relation to the Interim Measures Application, which were reserved in paragraph 72(e) of Procedural Order No. 6, including the fees and expenses of the Tribunal, the ICC’s costs and the costs of Sacyr’s legal representation and experts.31

49.
In its post-hearing brief ("PHB"), the Respondent has sought the following relief in this arbitration:

319. The Tribunal will recall that at the end of the Hearing the ACP raised the issue of the correct amount withheld in relation to Maintenance Payments. It is US$ 25,895,496.06 (see slides 106 and 107 of ACP's Closing Presentation). The ACP is entitled to withhold the Maintenance Payments, and in any event this Tribunal has no jurisdiction over the issue as it has not been put before the DAB.

320. Pursuant to paragraph 70 of Procedural Order No. 6, the ACP requests an order permitting an immediate call on the UniCredit letter of credit, provided by the Claimants as a condition to the grant of interim measures, in the maximum amount of US$ 13,186,719 or such lesser sum as the Tribunal deems appropriate in all of the circumstances.

321. Save for making the above correction in relation to the amount withheld for Maintenance Payments, the ACP repeats its request for relief as set out in paragraphs 570 to 574 of its Rejoinder.32

50.
Paragraphs 570-574 of the Respondent's Rejoinder on Preliminary Issues, to which the Respondent's PHB refers, read as follows:

570. In light of the above, the ACP respectfully requests the following relief from the Tribunal in respect of the Preliminary Issues:

(a) a declaration that the Tribunal has no jurisdiction over the Claimants' claims, or any of them, and that the Claimants have no standing to bring their claims, or any of them, in this Arbitration; and

(b) subject to its decision on jurisdiction, an order dismissing as inadmissible all of the Claimants' claims.

571. In the alternative, the ACP seeks an order dismissing as without merit all of the Claimants' claims and denying their requests for declarations and other relief.

572. In any event:

(a) an order lifting the Tribunal's order for interim measures as set out in its PO6;

(b) an order that the Claimants pay the costs of the Arbitration, including the fees and expenses of the Tribunal, the ICC's costs and the legal and other costs of the ACP, including the costs of its legal representatives, and its own internal costs; and

(c) an order granting the ACP such other relief and/or such other sums, as the Tribunal considers appropriate.

573. The ACP notes that the Claimants have continued to suggest that the English Court Proceedings should be delayed. At paragraph 86 of the Terms of Reference, the ACP reserved its right to seek further relief from this Tribunal if that should occur. The ACP maintains that reservation.

574. As the Tribunal knows, the ACP seeks repayment of all the overdue Advance Payments (Initial Advance Payments and Additional Advance Payments) as soon as possible.33

VII. PROCEDURAL HISTORY

51.

On 31 January 2017, pursuant to Article 4 of the ICC Rules, the Claimants filed their Request for Arbitration (the "Request for Arbitration").

52.
On 10 May 2017, the Respondent filed its Answer to the Request for Arbitration (the "Respondent’s Answer").
53.

On 7 June 2017, pursuant to Article 13(2) of the ICC Rules, the Secretary General confirmed Prof. Guido Santiago Tawil as co-arbitrator nominated by the Claimants and Mr. Stephen Furst QC as co-arbitrator nominated by the Respondent.

54.
On 11 July 2018, the Secretariat of the ICC International Court of Arbitration (the "ICC Secretariat") informed Prof. Gabrielle Kaufmann-Kohler of her nomination by the Parties as President of the Arbitral Tribunal. By letter of 18 July 2017, Prof. Kaufmann-Kohler accepted her appointment and provided a statement containing a number of disclosures.
55.

On 19 July 2017, the ICC Secretariat circulated to the Parties a copy of Prof. Kaufmann-Kohler’s curriculum vitae and statement of acceptance, availability, impartiality and independence. Pursuant to Article 11(2) of the ICC Rules, the ICC Secretariat invited the Parties to provide their comments to Prof. Kaufmann-Kohler’s disclosures before 26 July 2017, failing which the ICC would consider that the Parties had no objection to her appointment. No comments were submitted by the Parties.

56.

On 9 August 2017, the Secretary General confirmed Prof. Kaufmann-Kohler as President of the Arbitral Tribunal jointly nominated by the Parties. On the same day, pursuant to Article 16 of the ICC Rules, the ICC Secretariat transmitted the file to the Tribunal.

57.
By letter of 10 August 2017, the Tribunal invited the Parties to indicate, by 17 August 2017, their preference as to whether the first procedural hearing should take place in person or by way of a telephone conference and to provide their availability for such hearing. Within the time frame provided, the Parties agreed that the first hearing be held by telephone and advised the Tribunal of their availability.
58.
On 22 August 2017, the ICC Secretariat acknowledged receipt of USD 200,000 from the Claimants (in addition to USD 150,000 previously received from the Claimants).
59.
On 23 August 2017, the Tribunal circulated to the Parties draft Terms of Reference (the "ToR") and a draft Procedural Order No. 1 ("PO1"). It also proposed to appoint Dr. Michele Potesta as Secretary to the Tribunal, whose tasks were spelled out in the draft ToR. Dr. Potesta’s CV and statement of independence and impartiality were also circulated to the Parties on the same date. On 29 August 2017, the Parties agreed to Dr. Potesta’s appointment as Secretary.
60.
The Parties were invited to provide their comments to the draft ToR and PO1 by 5 September 2017.
61.
On 29 August 2017, the Respondent informed the Tribunal that there were a number of ongoing proceedings between the Parties, including in the English High Court, which might have an impact upon whether and/or how the arbitration should proceed. The Respondent indicated that additional information would be provided in the Respondent’s comments to the Tribunal on 5 September 2017.
62.
On 30 August 2017, the Tribunal confirmed to the Parties that the first procedural hearing would take place on 19 September 2017 at 6 pm (CET).
63.
On 1 September 2017, the Parties requested an extension to provide their comments on the draft ToR and PO1, which was granted by the Tribunal. On 11 September 2017, the Tribunal granted a request for a further extension.
64.
By letter of 12 September 2017, the ICC Secretariat acknowledged receipt of USD 350,000 from the Respondent and indicated that the advance on costs fixed by the Court at USD 700,000, subject to later readjustments, had been entirely paid by the Parties.
65.
On 14 September 2017, the Tribunal provided the dial-in numbers and agenda for the telephone hearing.
66.
On 18 September 2017, the Respondent provided an update on the English Court proceedings and requested a stay of the arbitration.
67.
Also on 18 September 2017, the Claimants provided the Tribunal with redlines showing the differences between the Tribunal’s original drafts and the current drafts of the ToR and PO1 as discussed between the Parties. The Claimants also supplied their lists of attendees to the telephone hearing to be held the following day.
68.
On 19 September 2017, the Parties and the Tribunal held the first procedural hearing as scheduled, at which the draft ToR and PO1, including the calendar, were discussed. That conference was audio recorded. The following persons attended the first procedural hearing:

Arbitral Tribunal
Prof. Gabrielle Kaufmann-Kohler, President
Prof. Guido Santiago Tawil, Co-Arbitrator
Stephen Furst QC, Co-Arbitrator
Dr. Michele Potesta, Secretary to the Tribunal

For the Claimants
Carolyn B. Lamm, White & Case LLP
Phillip Capper, White & Case LLP
Paul Brumpton, White & Case LLP
Matthew N. Drossos, White & Case LLP
John Rogerson, White & Case LLP
Pauline Depinay, White & Case LLP
Richard Preston, Seyfarth Shaw
Giovanni Minuto, Bonelli Erede
Ana Maria Legendre, Alcogal
Sarah Biser, Fox Rothschild
Craig Tractenberg, Fox Rothschild
Jose Luis Torres, Sacyr
Carlos Iso, Sacyr
Ana Sala, Cortes Abogados
Paolo Möder, Salini-Impregilo

For the Respondent
Nick Henchie, Vinson & Elkins LLP
James Loftis, Vinson & Elkins LLP
Louise Woods, Vinson & Elkins LLP
Raid Abu-Manneh, Mayer Brown LLP
Manus McMullan QC, Atkin Chambers
Peter Land, Atkin Chambers
Jorge Fernandez, ACP
Jorge de la Guardia, ACP
Ilya Marotta, ACP
Itzel Ulloa, ACP
Carlos Arrue Montenegro, ACP
Karla G. Arias S., ACP

69.
On 20 September 2017, the Claimants provided the Tribunal with an update on the English Court proceedings.
70.
On 21 September 2017, the Tribunal circulated to the Parties the final version of the ToR for signature. By letter of the same date the ICC extended the time limit for establishing the ToR until 30 November 2017.
71.
Also on 21 September 2017, the Respondent provided an update on the English Court proceedings, after which the Tribunal invited the Parties to comment by 25 September 2017 on the impact, if any, of the English Court proceedings on the arbitration. The Parties did so on 25 September 2017. In its comments, inter alia, the Respondent reiterated its request for a stay of the arbitration proceeding, to which the Claimants objected.
72.
In an email of 22 September 2017, the Claimants confirmed that Claimant 5 was separately represented as per paragraph 3 of the ToR. Attached to the email was a proposed amended signature page for the ToR.
73.
On 25 September 2017, the President of the Tribunal informed the Parties that the Tribunal agreed with the Claimants’ proposed amended signature page for the ToR.
74.
Also on 25 September 2017, the Tribunal acknowledged the Parties respective letters providing comments pursuant to the Tribunal’s invitation of 21 September 2017. The Tribunal advised the Parties that following perusal of the same, it considered that for the time being it was sufficiently informed to provide directions on the further conduct of the proceedings and would revert to the Parties in due course.
75.
On 3 October 2017, the Tribunal issued PO1 containing the procedural rules and the calendar for the initial steps in the proceedings. It also informed the Parties that in order to give further directions on the conduct of the proceedings, it would benefit from two rounds of simultaneous submissions followed by a telephone hearing on a number of specific issues. It thus invited the Parties to address a number of questions and requested that the Parties indicate their availability for the telephone hearing.
76.
On 5 October 2017, the Respondent advised the Tribunal that the date of the case management conference in the English Court proceedings had been fixed for 8 December 2017. Accordingly, the Respondent indicated that it might be appropriate for the Tribunal to hold the telephone hearing after that date. The Claimants provided their comments on 9 October 2017. On 11 October 2017, the Tribunal confirmed that the telephone hearing would take place on 5 December 2017 at 7 pm (CET).
77.
On 12 October 2017, the Tribunal confirmed that it had received all signed pages of the ToR and accordingly issued the finalized copy of the ToR to the Parties and the ICC Secretariat.
78.

The ICC Secretariat, pursuant to Article 23(2), transmitted the ToR signed by the Parties and the Tribunal on 12 October 2017 to the International Court of Arbitration of the International Chamber of Commerce (the "ICC Court") at its session of 19 October 2017.

79.

By letter of 20 October 2017, the ICC Secretariat confirmed the appointment of Dr. Michele Potesta as the Arbitral Secretary and also set the time limit for rendering the final award at six months from 12 October 2017, i.e. six months from the date of signing of the ToR, pursuant to Article 30(1) of the ICC Rules.

80.
On 24 October 2017, each Party made its submissions on the Tribunal’s questions of 3 October 2017 and the Respondent’s request for a stay of the arbitration. In their submission, the Claimants stated that they would need to seek interim measures from the Tribunal to prevent the ACP from calling the letters of credit securing the Initial Advances. They thus requested that a timetable be established to hear the Claimants’ application for interim measure "well in advance of 1 June 2018" and also proposed to set aside one day for an in-person hearing for that purpose.
81.
On 2 November 2017, the Respondent informed the Tribunal that the Parties had, that day, received the Court of Appeal’s decision in relation to the Defendants’ applications for permission to appeal in the English Court proceedings.
82.
On 14 November 2017, the Parties provided their respective replies to the submissions made on 24 October 2017.
83.
By letter of 15 November 2017, the Claimants conveyed their request for an in person hearing rather than the telephone hearing that had been scheduled for 5 December 2017.
84.
On 17 November 2017, the Respondent provided its comments to the Claimants’ request of 15 November 2017. The Respondent requested that the telephone hearing should proceed as scheduled on 5 December 2017.
85.
By letter of 21 November 2017 to the Parties, the Tribunal informed that having considered the Parties’ respective positions, it deemed that the most appropriate course of action was to proceed with the telephone hearing as scheduled on 5 December 2017.
86.
On 21 November 2017, the Claimants requested from the ICC Secretariat that they be furnished with (i) a certificate with respect to the arbitration (ii) a certified copy of the ToR. On 22 November 2017, the Claimants additionally requested from the ICC a certified copy of the Request for Arbitration (without exhibits), which bore the ICC stamp confirming receipt on 31 January 2017 and that a reference be included to the said certified copy of the Request for Arbitration in the certificate.
87.
On 23 November 2017, the ICC Secretariat acknowledged the Claimants' emails of 21 and 22 November 2017 and provided the requested documents.
88.
On 28 November 2017, the Respondent provided an update on the English Court proceedings.
89.
On 4 December 2017, in accordance with the Tribunal's directions, the Parties provided their respective lists of attendees for the telephone hearing conference in addition to the slides they would be using. The Claimant also provided two witness statements from the Respondent (submitted as exhibits C-147 and C-148) that had recently been filed in the English Court in connection with the Respondent's application to expedite the trial scheduled for the end of November 2018, as well as two responsive witness statements that had been filed that day (submitted as exhibits C-149 and C-150).
90.
On 5 December 2017, the Parties and the Tribunal held a telephone hearing during which the Parties made oral submissions and answered questions from the Tribunal. By way of letters sent on 13 December 2017, the Parties updated the Tribunal in respect of the case management conference held in the proceedings before the English Court on 8 December 2017. The Claimants additionally submitted (i) the transcript of the hearing (submitted as exhibit C-151); and (ii) the English Court's judgment denying the Respondent's expedition application (submitted as exhibit C-152). The Tribunal subsequently received correspondence from the Claimants on 14 December and correspondence from the Respondent on 15 December 2017.
91.
By letter of 18 December 2017, the Tribunal informed the Parties of its decision to deny the Respondent's request to stay the arbitration, with reasons to follow in due course. The letter also requested that the Parties revert to the Tribunal on the procedural timetable and the formulation of the so-called "preliminary issues" by 22 December 2017. The letter incorporating the Tribunal's decision and directions was re-transmitted on 20 December 2017, as due to a clerical error in the dispatch of the correspondence on 18 December 2017 it had inadvertently not been sent to the Respondent.
92.
On 23 December 2017, the Respondent informed that Mr. Andres Jana of Bofill Mir & Alvarez had joined the Respondent’s counsel team. Prof. Tawil made a disclosure in respect of Mr. Jana on 26 December 2017.
93.
On 27 December 2017, following communications between the Parties relating to the date for the hearing on interim measures which had been requested by the Claimants, the Tribunal confirmed that such hearing would take place on 28 March 2018.
94.
On 4 January 2018, the Tribunal issued Procedural Order No. 2 ("PO2") which conveyed the reasons for the Tribunal’s decision not to grant the Respondent’s request to stay the arbitration, as communicated in the Tribunal’s letter of 18 December 2017. The Tribunal also noted that it expected to receive the Parties’ input on the final details of the procedural calendar as well as on the formulation of the preliminary issues as soon as possible.
95.
By email of 10 January 2018, the Claimants made a number of proposals to the Tribunal in relation to the procedural calendar. By email of the same date the Respondent provided its comments in relation to the same.
96.
On 15 January 2018, the Tribunal established the calendar for the further steps in the proceedings and in the same correspondence proposed to the Parties that the pre-hearing telephone conference (the "PHTC") be held on 22 August 2018 at 5 p.m. (CET). The Tribunal invited the Parties to indicate their availabilities by 22 January 2018.
97.
By email of 21 January 2018, Norton Rose Fulbright (London) informed the Tribunal that it had been instructed as lead counsel to Claimant 2 in this arbitration. On 22 January 2018, the President of the Tribunal made a disclosure, supplemental to those made on 18 July 2017, in relation to Norton Rose.
98.
On 22 January 2018, the Tribunal advised the Parties that it "underst[ood] that the Parties ha[d] agreed on the formulation of the preliminary issues and [did] not need the Tribunal’s further assistance in this respect".
99.
By letter of 26 January 2018, the ICC Secretariat noted that the amount in dispute was USD 898,000,000 and advised that it would invite the ICC Court to examine whether to readjust the advances on costs.
100.
On 5 February 2018, the Claimants made an application to the Tribunal for an order that their forthcoming Interim Measures Application, and all matters addressed therein as well as related matters, be treated as confidential, subject to appropriate exceptions.
101.
By email of 6 February and letter of 7 February 2018, the Respondent objected to the Claimants’ application for a confidentiality order.
102.
Also on 6 February 2018, Claimant 2 advised, in advance of its submission scheduled for 7 February, that in light of certain confidentiality concerns it intended to disclose the evidence in support of its submission, and any analysis of or conclusions drawn from such evidence contained in its submission, to the Tribunal and the Respondent only, and not to the other Claimants.
103.
On 7 February 2018, the Tribunal issued an Interim Order on Confidentiality which, in addition to furnishing other directions, provided that:

The Respondent shall not refer publicly to, or otherwise disclose, any information disclosed in the Claimants’ submissions on interim measures to be heard by the Tribunal on 28 March 2018 which concerns the financial position of the Claimants (insofar as that information is not already in the public domain) for a period of two weeks following receipt of the Claimants’ Interim Measures Application, save and to the extent that disclosure may be required of the Respondent by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a state court or other legal authority. For the avoidance of doubt, this order does not prevent the Respondent from providing relevant information to such experts as it deems necessary for the preparation of its responsive submissions, upon the understanding that such experts will sign an undertaking to keep such information confidential.

104.
Still on 7 February 2018, pursuant to the procedural calendar, the Parties filed the following simultaneous submissions:

a. Claimants 1 and 3-6 filed their Submission on Preliminary Issues and Interim Measures ("Claimants 1 and 3-6’s Submission on Preliminary Issues");

b. Claimant 2 filed its First Submission on (i) Preliminary Issues and (ii) Interim Measures ("Claimant 2’s Submission on Preliminary Issues");

c. The Respondent filed its Submission on Jurisdiction, Standing and Admissibility ("Respondent’s Submission on Jurisdiction");

105.

On 15 February 2018, pursuant to Article 36 of the ICC Rules, the ICC Court increased the advance on costs from USD 700,000 to USD 1,250,000. By correspondence of 16 February 2018, the ICC Secretariat provided the Tribunal with an updated financial table and issued payment requests to the Claimants and the Respondent for additional payment of the advances on costs in the amount of USD 275,000 each to be paid by 19 March 2018.

106.
On 21 February 2018, the Tribunal issued Procedural Order No. 3 ("PO3") which contained a Confidentiality Order replacing the Interim Order on Confidentiality of 7 February 2018. PO3 also addressed the issues raised and the relief sought in the Claimants' letter of 5 February, Claimants 1 and 3-6's letters of 6 February, 12 February, and 16 February, Claimant 2's letters of 6 February, 7 February, and 12 February, and the Respondent's letters of 6 February, 7 February, 16 February, as well as the Respondent's e-mail of 7 February 2018.
107.
On 26 and 27 February 2018, pursuant to the Tribunal's directions in PO3, the Claimants provided their respective confidentiality tables, requesting that certain information contained in their submissions, witness statements, expert reports, and other supporting materials, be treated as "Designated Confidential Information" under PO3.
108.
On 1 March 2018, the Respondent provided its responses to the Claimants' confidentiality requests.
109.
By email of 8 March 2018, the Claimants informed the Tribunal that they had agreed on matters of confidentiality among themselves and that it was therefore unnecessary for the Tribunal to decide specific requests for confidentiality of certain information. Accordingly, Claimant 2 provided redacted versions of its Submission on Preliminary Issues, the witness statement of Mr. Escudero and the Argon Report. The Claimants also informed that Claimants 1 and 3-6 had agreed that they and their counsel, experts and advisors would be provided only with redacted versions of those documents and requested that the Tribunal and the Respondent ensure that the redactions contained in the attached documents were reproduced in any material provided to Claimants 1 and 3-6 in the arbitration.
110.
On 9 March 2018, the Tribunal gave directions in relation to the confidentiality issues among the Claimants and invited the Respondent's comments.
111.
On the same day, the Respondent provided its comments to the Claimants' communications of 8 March 2018. On 10 March 2018, the Tribunal invited the Claimants' comments on the same.
112.
On 12 March 2018, the Respondent provided its comments and requested a ruling from the Tribunal regarding "withheld information" on the part of Claimant 2. On 13 March, Claimant 2 provided its comments and on 15 March 2018 the Tribunal issued its directions on the issues raised. Pursuant to instructions in the Tribunal's letter, Claimant 2 subsequently, by email of 15 March 2018, advised that it had provided certain materials to the Respondent. In its email, Claimant 2 requested that the materials be treated as "Designated Confidential Information" in the interim period while it was preparing its Confidentiality Table.
113.

Also on 15 March 2018, pursuant to Article 30(2) of the ICC Rules, the ICC Court extended the time limit for rendering the final award until 31 December 2018.

114.
On 16 March 2018, the Parties filed the following simultaneous submissions:

a. Claimants 1 and 3-6 filed their First Responsive Submission on Jurisdiction and Admissibility ("Claimants 1 and 3-6’s Response on Jurisdiction");

b. Claimant 2 filed its Responsive Submission on Jurisdiction and Admissibility ("Claimant 2’s Response on Jurisdiction");

c. The Respondent filed its Responsive Submission on Preliminary Issues and Interim Measures ("Respondent’s Response on Preliminary Issues").

115.
On 20 March 2018, the Tribunal issued Procedural Order No. 4 ("PO4"), in which it (i) resolved outstanding objections in respect of confidentiality vis-a-vis the public under Section II of PO3; and (ii) gave directions on the discussion of the redacted passages contained in Claimant 2's submissions at the upcoming hearing on interim measures.
116.
On 22 March 2018, the ICC Secretariat acknowledged receipt of USD 275,000 from the Claimants and issued a new payment request to the Respondent extending the deadline for payment until 10 April 2018.
117.
On 23 March 2018, in accordance with the procedural calendar annexed to the Tribunal's letter of 15 January 2018, each Party served on the other a request for the production of documents.
118.
Also on 23 March 2018, the Respondent advised the Tribunal that it did not object to Claimant 2’s request of 15 March 2018 that certain materials be treated as "Designated Confidential Information". Also on this date Claimant 2 and the Respondent indicated that they had no comment on the proposed hearing schedule contained within the Tribunal’s letter of 20 March 2018. Claimants 1 and 3-6 raised the need to potentially make sur-rebuttal arguments in response to new points made and that if this proved necessary, the Tribunal was requested to accommodate a short extension beyond the scheduled 6 pm close of the hearing on interim measures.
119.
By email of 23 March 2018, the Tribunal granted Claimant 2’s request of 19 March 2018 that the pertinent materials be treated as "Designated Confidential Information".
120.
By way of email of 26 March 2018, the Respondent objected to the request made by Claimants 1 and 3-6 to the Tribunal on 23 March 2018 to make sur-rebuttal submissions at the hearing.
121.
By email of the same date, Claimant 2 provided comments on confidentiality issues that may arise during the hearing on interim measures.
122.
On 27 March 2018, the Tribunal advised the Parties that it did not permit sur-rebuttal submissions as proposed by Claimants 1 and 3-6 in their correspondence of 23 March 2018.
123.
On 28 March 2018, the Parties and the Tribunal held a hearing for oral arguments and questions by the Tribunal on the Claimants’ application for interim measures in Paris. The following persons attended the hearing:

Arbitral Tribunal
Prof. Gabrielle Kaufmann-Kohler, President
Prof. Guido Santiago Tawil, Co-Arbitrator
Stephen Furst QC, Co-Arbitrator
Dr. Michele Potesta, Secretary to the Tribunal

For the Claimants
Carolyn B. Lamm, White & Case LLP
Phillip Capper, White & Case LLP
Hansel T. Pham, White & Case LLP
Paul Brumpton, White & Case LLP
Matthew N. Drossos, White & Case LLP
Jeffrey Stellhorn, White & Case LLP
Drew Kulow, White & Case LLP
James Rogers, Norton Rose Fulbright LLP
Matthew Kirtland, Norton Rose Fulbright LLP
Janice Feigher, Norton Rose Fulbright LLP
Andrea Carlevaris, BonelliErede
Ana Maria Legendre Burbano, Alemán, Cordero, Galindo & Lee
Eduardo E. Gomez A., Alemán, Cordero, Galindo & Lee
Sarah Biser, Fox Rothschild LLP
Ana Sala Andrés, Cortes Abogados
Carlos Iso Floren, Sacyr, S.A.
Pablo Escudero, Sacyr, S.A.
Rafael Pérez Valencia, Sacyr, S.A.
Paolo Möder, Salini-Impregilo S.p.A.
Ciarán Chesser, Jan De Nul N.V.
Carlos Fabrega, Constructora Urbana S.A.
Arturo Hoyos, Claimants' Expert

For the Respondent
Ilya R. Espino de Marotta, ACP
Karla G. Arias S., ACP
Carlos Arrue Montenegro, ACP
Manus McMullan QC, Atkin Chambers
Peter Land, Atkin Chambers
Nick Henchie, Vinson & Elkins
Raid Abu-Manneh, Mayer Brown
Barry Machlin, Mayer Brown
Louise Woods, Vinson & Elkins
Andrés Jana, Bofill Mir & Alvarez Jana Abogados
George Fisher, Mayer Brown
Harriet Foster, Vinson & Elkins

124.
On 29 March 2018, the Respondent provided the Tribunal and the Claimants with copies of its slides from the hearing on interim measures of the preceding day.
125.
On 1 April 2018, the Tribunal acknowledged receipt of the Respondent's slides and invited the Claimants to provide electronic copies of their slides. The Tribunal also invited the Parties to transmit agreed versions of the transcript of the hearing on interim measures (in redacted and unredacted forms) by 9 April 2018.
126.
On 2 April 2018, the Claimants provided electronic versions of their slides used at the hearing on interim measures.
127.
On 5 April 2018, each Party submitted its objections to the other Party's document production requests.
128.
On 5 April and 9 April 2018, the Respondent and Claimants 1 and 3-6 respectively provided references to information in the record in reply to a question from the Tribunal at the hearing on interim measures.
129.
On 9 April 2018, the Parties transmitted the amended agreed transcript of the hearing on interim measures.
130.
On 10 April 2018, the Tribunal advised the Parties that it would revert to the Parties if it needed further input.
131.
On 11 April 2018, Claimant 2 provided unsolicited comments in response to the Respondent’s communication of 5 April 2018. The Tribunal did not take into account Claimant 2’s comments of 11 April 2018, as they were sent in contravention of the Tribunal’s directions.
132.
On 11 April 2018, each Party provided its replies to the objections to its requests for document production.
133.
On the same day, the Respondent also made certain requests in relation to document production, to which the Claimants provided their comments on 13 April 2018.
134.
The Tribunal provided its determinations on these requests from the Respondent on 16 April 2018.
135.
On the same day, the ICC Secretariat indicated that it had not yet received the payment of the Respondent’s share of the advance on costs set at USD 275,000. The ICC Secretariat issued another request for payment to the Respondent with an extended deadline of 30 April 2018.
136.
On 19 April 2018, the Claimants provided an update in respect of the matters dealt with in the Tribunal's letter of 16 April 2018.
137.
On 20 April 2018, the Tribunal issued Procedural Order No. 5 on document production ("PO5").
138.
On 24 April 2018, pursuant to instructions contained in PO5, the Respondent provided its position on whether it agreed to the Claimants’ offer to waive a certain requirement in relation to document production requests (pursuant to paragraph 24(b) of PO1).
139.
By letter of 27 April 2018, the ICC Secretariat acknowledged receipt of USD 275,000 from the Respondent, and confirmed that the advance on costs fixed by the ICC Court at USD 1,250,000, subject to later readjustments, had been entirely paid by the Parties.
140.
On 30 April 2018, the Tribunal issued Procedural Order No. 6 containing its Decision on Interim Measures ("PO6"), in which it made the following order:

a. The ACP shall refrain from making any demand for payment of the Initial Advances until 16 December 2018, upon the condition that the Claimants provide security upon the terms set forth in paragraph 70 above;

b. Any dispute concerning the guarantee or letter of credit to be provided pursuant to paragraph 70 above shall be referred to the Tribunal promptly;

c. This order shall remain in force until 16 December 2018, or until the date of the Tribunal’s decision or award on the Preliminary Issues, or until the Tribunal revises, amends, or lifts this order, whichever is earlier;

d. All other requests for interim relief are denied;

e. Costs are reserved for a later decision.34

141.
Paragraph 70 of PO6 dealt with security for potential harm caused by the interim measures in the following terms:

The Tribunal therefore conditions the relief granted below to the Claimants providing a guarantee or letter of credit in the amount of USD 13,186,719. Such guarantee or letter of credit shall be issued by a first rate financial institution; shall be payable on first demand upon presentation of a decision or award of the Tribunal permitting a call on the guarantee or letter of credit for a given amount; and shall expire no earlier than 15 January 2019. The Tribunal computed the amount to be secured taking into account interest on the principal amount of USD 547,958,819 at a rate of 6-month LIBOR (as it stood on the date of the Hearing, i.e. 2.44%), plus 2%, compounded bi-annually, and running from 1 June to 16 December 2018. The Claimants shall provide such security to the ACP by 14 May 2018, and inform the Tribunal accordingly.

142.
When transmitting PO6 to the Parties, the Tribunal stated that, in order to protect the information that Claimant 2 had withheld from Claimants 1 and 3-6, it had decided to designate Section III of PO6 as "restricted access information" pursuant to PO3 until 2 May 2018. It invited Claimant 2 to inform the Tribunal if passages of Section III of PO6 should be redacted to correspond to the redactions made by the Parties in their submissions and accompanying materials filed to date.
143.
On 2 May 2018, Claimant 2 confirmed that no redactions were necessary to Section III of PO6. Accordingly, on the next day, the Tribunal lifted the temporary restrictions which the Tribunal had imposed on PO6 in its communication of 30 April 2018.
144.
On 14 May 2018, in application of PO6, the Claimants provided a guarantee from Unicredit S.p.A. (No. 460011648679) for the sum of USD 13,186,719.
145.
On 16 May 2018, the Respondent requested that the Tribunal order the Claimants to provide a revised guarantee or, as a substitute, a letter of credit, that complied with the terms of PO6. The Tribunal invited the Claimants’ comments, which were received on 17 May 2018.
146.
On 18 May 2018, the Respondent provided its comments to the Claimants' letter of 17 May 2018.
147.
On 21 May 2018, the Tribunal issued supplementary instructions to PO6 in relation to the bank guarantee to be provided by the Claimants and, in particular, directed the Claimants to provide a new guarantee in accordance with the Tribunal's supplementary instructions.
148.
On 22 May 2018, the Claimants informed the Tribunal that it was effecting the requisite steps to comply with PO6 and requested that the deadline for provision of the guarantee be extended until 30 May 2018. That same day, the Tribunal granted the extension until 30 May 2018, on the understanding that the Claimants would provide the bank guarantee on 25 May 2018 if possible.
149.
After the Tribunal had granted the Claimants' request, by email of the same date the Respondent objected to the Claimants' request for the extension.
150.
By email of 23 May 2018, the Tribunal provided further directions.
151.
On 25 May 2018, the Parties filed the following simultaneous submissions:

a. Claimants 1 and 3-6 filed their Reply on Preliminary Issues ("Claimants 1 and 3-6's Reply on Preliminary Issues");

b. Claimant 2 filed its Reply Submission on Preliminary Issues ("Claimant 2's Reply on Preliminary Issues");

c. The Respondent filed its Reply Submission on Jurisdiction, Standing and Admissibility ("Respondent's Reply on Jurisdiction").

152.
On 30 May 2018, the Parties confirmed to the Tribunal that the revised guarantee had been received by the Respondent. The Tribunal, by email of the same date, confirmed to the Parties its understanding that the revised guarantee had been accepted by the Respondent and was in compliance with PO6 and the supplementary specifications. The Tribunal also confirmed in its email that PO6 remained in full effect.
153.
By letter of 1 June 2018, the Tribunal invited the Parties to make joint arrangements for a suitable hearing room in Miami and to revert with same by 15 June 2018. The Tribunal additionally confirmed to the Parties that the PHTC would take place on 22 August 2018 at 5 p.m. (CET).
154.
On 8 June 2018, the Claimants confirmed to the Tribunal that the Parties were in agreement as to the Ritz Carlton, Coconut Grove, Miami as the venue for the upcoming September hearing.
155.
On 20 July 2018, the Parties filed the following simultaneous submissions:

a. Claimants 1 and 3-6 filed their Rejoinder on Jurisdiction and Admissibility ("Claimants 1 and 3-6’s Rejoinder on Jurisdiction");

b. Claimant 2 filed its Rejoinder Submission on Jurisdiction and Admissibility ("Claimant 2’s Rejoinder on Jurisdiction");

c. The Respondent filed its Rejoinder Submission on Preliminary Issues ("Respondent’s Rejoinder on Preliminary Issues").

156.
On 24 July 2018, the Tribunal informed the Parties that in advance of the PHTC scheduled for 22 August 2018 at 5 p.m. (CET) a procedural order on the organization of the hearing would be circulated in draft form for discussion during the call.
157.
By letter of 10 August 2018, the Parties informed the Tribunal of the witnesses and experts which they required to be available for cross examination at the September hearing on Preliminary Issues and Jurisdiction.
158.
On 15 August 2018, the Tribunal provided the Parties with draft PO7 on the organization of the hearing for discussion at the PHTC.
159.
On 22 August 2018, prior to the PHTC, the Parties provided comments on the draft PO7.
160.
On 22 August 2018 at 5 p.m. (CET), the Tribunal and the Parties held the PHTC. The following persons attended the PHTC:

Tribunal
Prof. Gabrielle Kaufmann-Kohler, President
Prof. Guido Santiago Tawil, Co-Arbitrator
Stephen Furst QC, Co-Arbitrator
Dr. Michele Potesta, Secretary to the Tribunal

Claimants
Carolyn B. Lamm, White & Case LLP
Phillip Capper, White & Case LLP Hansel T. Pham, White & Case LLP Paul Brumpton, White & Case LLP Matthew N. Drossos, White & Case LLP
James Rogers, Norton Rose Fulbright LLP
Matthew Kirtland, Norton Rose Fulbright LLP
Ben Grant, Norton Rose Fulbright LLP
Andrea Carlevaris, BonelliErede
Giovanni Minuto, BonelliErede
Ana Maria Legendre Burbano, Alemán, Cordero, Galindo & Lee
Monica Crespo, Alemán, Cordero, Galindo & Lee
Sarah Biser, Fox Rothschild LLP
Carlos Iso Floren, Sacyr, S.A.
Rafael Pérez Valencia, Sacyr, S.A.
Ciarán Chesser, Jan De Nul N.V.

Respondent
Karla G. Arias S., ACP
Carlos Arrue Montenegro, ACP
Manus McMullan QC, Atkin Chambers
Peter Land, Atkin Chambers
Andrés Jana, Bofill Mir & Alvarez Jana Abogados
Raid Abu-Manneh, Mayer Brown
Nick Henchie, Vinson & Elkins
Louise Woods, Vinson & Elkins
George Fisher, Mayer Brown
Harriet Foster, Vinson & Elkins
Heather Tyson, Vinson & Elkins

161.
During the PHTC, which was audio recorded, the Tribunal and the Parties discussed the items set out in draft Procedural Order No. 7 ("PO7"), which had been circulated on 15 August 2018.
162.
On 25 August 2018, the Tribunal issued PO7 on the organization of the upcoming hearing on jurisdiction and liability (the "Hearing on Jurisdiction and Liability" or the "Hearing").
163.
On 30 August 2018, the Claimants requested that the Tribunal permit the introduction of a number of documents in the record listed in an annex. In accordance with the Tribunal's directions, the Respondent provided its comments on 31 August 2018.
164.
On 31 August 2018, the Tribunal (i) granted the Claimants leave to introduce Documents Nos. 10, 12, 13, and 16 of the annex to the Claimants' 30 August 2018 letter; (ii) granted leave to the ACP to file the award dated 6 August 2018 mentioned at page 7 of its letter of 31 August 2018; and (iii) denied the Claimants’ application to introduce the remaining documents listed in the annex of their letter.
165.
The Hearing on Jurisdiction and Liability took place as scheduled from 3 to 7 September 2018 at the Ritz Carlton Coconut Grove in Miami. The following persons attended the Hearing:

Tribunal
Prof. Gabrielle Kaufmann-Kohler, President
Prof. Guido Santiago Tawil, Co-Arbitrator
Stephen Furst QC, Co-Arbitrator
Dr. Michele Potesta, Secretary to the Tribunal

Claimants
Carolyn B. Lamm, White & Case LLP
Phillip Capper, White & Case LLP
Francis A. Vasquez Jr., White & Case LLP
Hansel T. Pham, White & Case LLP
Paul Brumpton, White & Case LLP
Matthew N. Drossos, White & Case LLP
Onur Saka, White & Case LLP
Jacob Bachmaier, White & Case LLP
Jeffrey Stellhorn, White & Case LLP
Scarlet Johnston, White & Case LLP
Guillermo Cuevas, White & Case LLP
Peter Halle, White & Case LLP
James Rogers, Norton Rose Fulbright LLP
Matthew Kirtland, Norton Rose Fulbright LLP
Janice Feigher, Norton Rose Fulbright LLP
Benjamin Grant, Norton Rose Fulbright LLP
Andrea Carlevaris, BonelliErede
Alejandro Ferrer, Alemán, Cordero, Galindo & Lee
Ana Maria Legendre Burbano, Alemán, Cordero, Galindo & Lee
Monica Crespo, Alemán, Cordero, Galindo & Lee
Sarah Biser, Fox Rothschild LLP
Dra. Ana Sala Andrés, Cortes Abogados
Jose Manuel Loureda, Sacyr S.A.
Rafael Pérez Valencia, Sacyr S.A.
Carlos Iso Floren, Sacyr S.A.
Jose Luis Torres, Sacyr S.A.
Brian Kirby, Sacyr S.A.
Zoe Ardnt, Sacyr S.A.
Claudio Lautizi, Salini-Impregilo S.p.A.
Paolo Möder, Salini-Impregilo S.p.A.
Ciarán Chesser, Jan De Nul N.V.
Dino Desiati, Grupo Unidos por el Canal S.A.
Carlos Fabrega, Constructora Urbana S.A.
Arturo Hoyos, Claimants' Expert
José Andrés Troyano Peña, Claimants' Expert
Rex E. Pingle, Claimants' Expert

Respondent
Manus McMullan QC, Atkin Chambers
Peter Land, Atkin Chambers
Andrés Jana, Bofill Mir & Alvarez Jana Abogados
Raid Abu-Manneh, Mayer Brown
Barry Machlin, Mayer Brown
George Fisher, Mayer Brown
Kentaro Ebersole, Mayer Brown
Louise Woods, Vinson & Elkins
Harriet Foster, Vinson & Elkins
Heather Tyson, Vinson & Elkins
Ruben Peña, Vinson & Elkins
Jorge L. Quijano, ACP
Francisco J. Miguez P., ACP
Ilya R. Espino de Marotta, ACP
Agenor Correa Pulice, ACP
Karla G. Arias S., ACP
Carlos Arrue Montenegro, ACP
Edson Balcazar, ACP
Richard E. Woodville-Price López, ACP
Octavio Del Moral, Respondent's Expert
Lilia Marcela Alvarez, Respondent's Expert
Gervase MacGregor, Respondent's Expert

166.
At the Hearing, the Tribunal heard the Parties' oral opening and closing arguments. It was addressed:

For Claimants 1 and 3-6 by:
Carolyn B. Lamm, White & Case LLP
Phillip Capper, White & Case LLP
Hansel T. Pham, White & Case LLP
Andrea Carlevaris, BonelliErede
Alejandro Ferrer, Alemán, Cordero, Galindo & Lee

For Claimant 2 by:
James Rogers, Norton Rose Fulbright

For the Respondent by:
Manus McMullan QC, Atkin Chambers

Andres Jana, Bofill Mir & Alvarez Jana Abogados

167.
The Tribunal also heard the following witnesses and experts:

Arturo Hoyos (expert)
Josè Andrés Troyano Peña (expert)
Octavio Del Moral (expert)
José Manuel Loureda López (witness)
Claudio Lautizi (witness)
Dino Desiati (witness)
Paolo Möder (witness)
Francisco J. Miguez (witness)
Jorge Quijano (witness)
Rex Pingle (expert)
Lilia Marcela Alvarez (expert)

168.
At the end of the Hearing on Jurisdiction and Liability, the Tribunal and the Parties discussed the further procedural steps, following which on 10 September 2018 the Tribunal issued Procedural Order No. 8 ("PO8").
169.
On 4 September 2018, pursuant to instructions contained in PO7, the Parties provided electronic copies of their respective opening presentations made at the Hearing on Jurisdiction and Liability.
170.
On 7 September 2018, the Parties provided the electronic copies of the presentations made by their experts at the Hearing.
171.
On 13 September 2018, pursuant to PO8, both Parties submitted a revised chart summarizing the advance payments. By letter of 14 September 2018, the Respondent objected to the annex to the chart submitted by the Claimants, contending that it went beyond the scope of the Tribunal's direction. The Respondent requested that the annex be struck from the record, or alternatively that the Respondent be permitted to submit a responsive annex in its post-hearing submissions. In accordance with the Tribunal's directions, the Claimants provided their comments on 16 September 2018.
172.
On 16 September 2018, the Tribunal denied the Respondent's request. The Tribunal informed the Parties that it did not consider the Claimants' annex to the chart to be in breach of the instructions which it had given at the Hearing on Jurisdiction and Liability and in PO8. The Tribunal further noted that the Respondent would have an opportunity to comment on the Claimants' revised chart and annex in its post-hearing brief.
173.
By letter dated 19 September 2018, received by the Tribunal on 20 September at 4:21 AM (CET), the Claimants requested leave to introduce 17 new legal exhibits and one factual exhibit into the record before the filing of the Parties' post-hearing briefs (PHBs). In accordance with the Tribunal's directions, the Respondent provided its comments on 20 September 2018.
174.
On 20 September 2018, the Tribunal denied the Claimants' request.
175.
On 21 September 2018, the Parties submitted the following simultaneous submissions:

a. Claimants 1 and 3-6 submitted their Post-Hearing Brief ("Claimants 1 and 3-6's PHB");

b. Claimant 2 submitted its Post-Hearing Brief ("Claimant 2's PHB"); and

c. The Respondent submitted its Post-Hearing Brief (the "Respondent's PHB").

176.
By email of 9 October 2018, the Parties informed the Tribunal that they had reached an agreement on the proposed corrections to the Hearing on Jurisdiction and Liability transcripts and provided the Tribunal with redline and clean final versions of the said transcripts.
177.
On 22 October 2018, the Parties provided their respective cost submissions.
178.
On 8 November 2018, the ICC Court readjusted the advance on costs from USD 1,250,000 to USD 1,580,000, subject to later readjustments.
179.
On 13 November 2018, the ICC Secretariat provided a correction in respect of the date on which the payments of the advance on costs were due.
180.
On 14 November 2018, in accordance with Article 27 of the ICC Rules, the Tribunal declared the proceedings closed. It also provided an update as to the expected timing of the submission of the draft award to the ICC Court for scrutiny.
181.
On 26 November 2018, the ICC Secretariat acknowledged receipt of USD 165,000 from the Respondent.
182.
On 5 December 2018, the ICC Secretariat acknowledged receipt of USD 165,000 from the Claimants and indicated that the advance on costs fixed by the Court at USD 1,580,000 had been entirely paid by the Parties.

VIII. PRELIMINARY MATTERS

183.
In this section, the Tribunal addresses a number of preliminary matters, namely (A) the scope of this Award; (B) the effects of the Cofferdam Awards (as defined infra) and the Gunter Tribunal’s Procedural Order No. 1 (as defined infra) on this arbitration; and (C) the Parties’ allegations regarding document production.

A. The Scope of this Award

184.
In response to a question from the Tribunal, the Parties have discussed the scope of this award at the Hearing and in their PHBs.
185.
The Claimants argue that "the Tribunal may resolve all requests for relief and render a Final Award, depending on how it decides the Preliminary Issues".35 In the Claimants’ view, the Tribunal may, and should, issue a final award, if it concludes that the repayment of the Advances is not due or determinable until the resolution of the disputes between the Parties.36 They submit that alternatively it could issue a partial award (a) declaring that the ACP is prohibited from demanding repayment of the Advances until (i) the resolution of disputes; or (ii) sufficient Dispute Proceeds have been applied under Clause 20.9 to set-off the Advance Payments; or (iii) the Contract price has been increased by an amount equal to the Advance Payments, thus extinguishing any obligation to repay them.37 In that case, so they contend, the Tribunal could retain "a monitoring jurisdiction", inter alia, to ensure that the Parties comply with their obligations under Clause 20.10 to pursue dispute resolution in good faith.38
186.
The Respondent contends that the Tribunal should issue a final award and has expressed skepticism as to the Claimants’ position on the Tribunal’s "monitoring jurisdiction" in case of a partial award.39
187.
The Tribunal considers that in light of the Parties’ requests for relief, it can issue a final award. Accordingly, this Award deals with all of the issues and Parties’ claims, including the Parties’ most recent requests for relief, decides nothing more than those issues and claims, and puts an end to this arbitration. In particular, it deals with all the so-called "Preliminary Issues" contained in the lists of issues submitted by the Parties.40 In spite of their name, these issues are the actual issues before this Tribunal.

B. The Effects of the Cofferdam Awards and the Gunter Tribunal's Procedural Order No. 1 on this Arbitration

188.
The Parties diverge on the effects on this arbitration of (1) certain jurisdictional and merits findings made by the ICC tribunal in ICC Arbitration No. 19962/ASM/JPA between Claimants 1-4 and the ACP (the "Cofferdam Arbitration")41 in its Interim Award on Jurisdiction (the "Cofferdam Jurisdiction Award")42 and its Final Award (the "Cofferdam Final Award")43 (together, the "Cofferdam Awards"). The Parties are further in disagreement on the impact on these proceedings of (2) Procedural Order No. 1 rendered in the ICC Arbitration No. 20910/ASM/JPA (C-20911/ASM) between Claimants 1-4 and the ACP by a tribunal presided over by Pierre-Yves Gunter (the "Gunter Tribunal's PO1").44

1. The Cofferdam Awards

a. The Respondent’s position

189.
The Respondent submits that the Cofferdam Awards should be given preclusive effect in this arbitration.45 It contends that issue preclusion or collateral estoppel is governed by the relevant agreements between the Parties, the ICC Rules, and U.S. federal arbitration law, which applies to the arbitration clauses of both the Contract and the Guarantees. Contrary to the Claimants' assertions, Panamanian law is not the applicable law to issue preclusion.46
190.
First, the ACP argues that Claimants 1-4 have agreed to be bound by the Cofferdam Awards by virtue of the express language of the Contract and the Panamanian Law Guarantees. Under the dispute resolution clauses contained in these instruments, disputes between the parties shall be "finally settled by international arbitration".47 For the Respondent, "finally settled" means that the Parties are bound by the final determinations of the arbitral tribunal and cannot re-litigate these determinations in subsequent proceedings.48
191.
The GAA, which requires the Claimants "to give full effect, or cause the Contractor to give full effect", to any award rendered in favor of the ACP, is consistent with this premise.49
192.
Furthermore, in agreeing to be bound by the ICC Rules, which provide that "every award shall be binding on the parties", the Parties have accepted the preclusive effect of issues finally decided in the Cofferdam Awards.50
193.
Moreover, for the Respondent, the Cofferdam Awards are binding as a matter of law. The preclusive effect of the Cofferdam Awards is governed by the lex arbitri, in this case, U.S. federal arbitration law as applied in the Eleventh Circuit, and not by the law applicable to the merits (Panamanian law), because issue preclusion is typically viewed as a procedural rather than a substantive rule.51 The ACP also rejects the Claimants’ arguments that Panamanian law applies under a U.S. conflicts of law analysis. For the ACP, none of the authorities cited by the Claimants support this proposition, as most of the court cases invoked by the Claimants address the different issue of the applicability of U.S. state versus federal law.52
194.
Under settled law of the Eleventh Circuit and other U.S. circuits, so the ACP contends, collateral estoppel, or issue preclusion, bars re-litigation of an issue litigated in prior proceedings.53 For the ACP, issue estoppel "precludes a party in a subsequent proceeding from contradicting an issue of fact or the legal consequences of a fact that has already been raised and decided in earlier proceedings between the same parties, even if the causes of action in both proceedings are not identical".54
195.
The Court of Appeal of the Eleventh Circuit, in particular, sets four requirements, for collateral estoppel to apply:

a. the issue at stake must be identical to the one raised in the prior litigation;

b. the issue must have been actually litigated in the prior litigation;

c. the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that earlier action; and

d. the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding.55

196.
According to the ACP, each of the requirements for collateral estoppel is satisfied with respect to the issues that Claimants 1-4 seek to re-litigate in this arbitration. In particular, Claimants 1-4 are seeking to re-litigate issues identical to those finally decided in the Cofferdam Arbitration and for these purposes it is irrelevant that the two arbitrations are premised on different sets of facts (i.e., the design and construction of a temporary cofferdam and the temporary diversion of the Cocoli River, on the one hand, and the payment of the Advances under the Contract, on the other).56 Further, the relevant issues were "actually litigated" in the Cofferdam Arbitration where the Parties were afforded due process at every turn.57
197.
In addition, the ACP submits that international arbitral practice is consistent with U.S. law as to the preclusive effect of the Cofferdam Awards,58 and cites in particular the Recommendations by the International Law Association ("ILA") on res judicata.59
198.
Finally, so argues the Respondent, even if Panamanian law were deemed to apply to issue preclusion, which the ACP disputes, the outcome would be the same. The Parties have agreed in their various instruments that arbitration awards will be final and binding and, under Panamanian law, those agreements will be respected and enforced.60 Furthermore, if the seat of the arbitration were Panama, the applicable rules would not be the domestic rules of civil procedure of Panama but those of the Panamanian Act of International Arbitration (Law 131 of 2013), which in this case would mandate to solve the matter pursuant to general principles of arbitration, including issue preclusion.61

b. The Claimants’ position

199.
The Claimants argue that the ACP has failed to meet its burden of proving that the Cofferdam Awards have any preclusive effect on this arbitration.62
200.
First, they contend that, consistent with international arbitral practice, the substantive law of the Contract and the JSG, i.e., Panamanian law, applies to assessing the preclusive effects, if any, of the Cofferdam Awards. In the Claimants' view, the law of the merits determines whether an award has preclusive effects because "[preclusion] issues are of a substantive rather than procedural nature".63 In any event, so the Claimants assert, even if the Tribunal were to apply a U.S. conflict of laws analysis to the preclusive effects of the Cofferdam Awards, which it should not, Panamanian law would still apply. Under U.S. law, including that of the Eleventh Circuit, issue estoppel is a substantive issue that is subject to the law governing the merits of the dispute.64
201.
This being so, the Claimants contend that the ACP's arguments in respect of the relevance of the Cofferdam Awards fail, as Panamanian law does not recognize issue preclusion and the doctrine is thus wholly irrelevant in the current proceeding.65 Panamanian law follows the traditional civil law approach of res judicata and only recognizes claim preclusion (which the ACP does not allege), as opposed to issue preclusion.66 In accordance with this approach, the preclusive effects of a decision is confined to its dispositive part, provided that all three requirements of res judicata are met, i.e., identity of parties, object, and cause of action.67 In the present case, so the Claimants maintain, any effects of the Cofferdam Awards can at most extend to the dispositive part of such decisions, and not to the legal reasoning or factual findings. Moreover, in the Claimants' view, contrary to the ACP's assertions, the ICC Rules and the Parties' contractual arrangements in the GAA and JSG (providing that the Claimants will "give full effect" to an Award and the disputes "shall be finally settled") do not lead to a different conclusion.68
202.
Finally, with regard to the application of issue preclusion under U.S. law (in the event that the Tribunal were to apply such law, contrary to their submission), the Claimants essentially agree with the ACP as to the elements required to establish issue preclusion,69 but consider that those elements are not met in this case.
203.
First, the issues before the Cofferdam Tribunal, so the Claimants argue, were distinct from those at issue in this arbitration, as the Cofferdam Arbitration involved the design and construction of the temporary cofferdam in the Pacific Entrance Access Channel and the temporary diversion of the nearby Cocoli River.70 Moreover, several issues raised in the Cofferdam Arbitration were not actually litigated because that tribunal failed to conduct a full examination of the issues.71 Further, the Claimants were not afforded a full and fair opportunity to arbitrate the issues in the Cofferdam Arbitration, as the ACP withheld material evidence necessary to resolve the issues before that tribunal.72
204.
In conclusion, the Tribunal should reject the ACP’s arguments that any decision of the Cofferdam Tribunal has preclusive effect on this dispute.

c. Analysis

205.
Although the question is not entirely uncontroversial, the Tribunal considers that the preclusive effect of prior awards is governed by the law applicable to the substance of the dispute,73 which in this case is Panamanian law.74 In the Tribunal’s view, this conclusion would also result under a U.S. conflict of laws analysis that were to be carried out as a result of the seat of arbitration being in Miami.75 It is not disputed by the ACP and its expert, Prof. Del Moral, that Panamanian law does not recognize the doctrine of issue preclusion. Instead, like many systems of civil law, Panamanian law follows the traditional approach of res judicata and as such, only the dispositive part of a decision can produce preclusive effects, provided that all three requirements of res judicata are met (i.e., identity of the parties, object, and cause of action). The ACP does not allege res judicata in these proceedings, and in the Tribunal’s view rightly so. Suffice it to note that the Cofferdam Arbitration concerned issues of the design and construction of the Cofferdam and the diversion of the Cocoli River, while the present arbitration concerns claims for declaratory relief as to whether and when the Advances must be repaid, which difference is sufficient to exclude any res judicata effect of the Cofferdam Awards on these proceedings.
206.
Furthermore, the Tribunal considers that the denial of preclusive effects is consistent with the Parties’ expectations in this case. Indeed, all parties to the Cofferdam Arbitration as well as all Parties to these proceedings are from civil law jurisdictions (Panama, Spain, Italy, Belgium, and Luxembourg) and the subject matter of the Contract concerns a project carried out in a civil law jurisdiction (Panama). None of these jurisdictions recognize issue preclusion; they only apply the principle of claim preclusion or res judicata.
207.
Finally, the ICC Rules are irrelevant to the applicability of issue preclusion. Articles 31 and 34 of the ICC Rules, on which the ACP relies, only deal with the effects of awards with respect to the proceedings in which they are made. They state the principle that awards are not subject to appeal before other arbitral tribunals and that parties undertake to comply with them. They do not purport to import into ICC practice the doctrine of issue preclusion.
208.
In conclusion, the Tribunal rejects ACP’s arguments on the alleged preclusive effects of the Cofferdam Award in these proceedings. This being said, the Cofferdam Awards have been submitted into the record and the Tribunal has reviewed them and notes that in certain instances the Cofferdam Tribunal reached the same or similar conclusions in respect of a number of specific issues that are also before this Tribunal.

2. The Gunter Tribunal’s PO1

a. The Respondent’s position

209.
The Respondent argues that the Claimants have commenced this arbitration as a de facto appeal against the Gunter Tribunal's PO176 and seek to advance the same Panamanian law issues which were found to have no merit by that tribunal.77 The ACP also submits that the attempt to re-litigate here issues decided in the Gunter Tribunal's PO1 is a breach of the GAA by Claimants 2-6.78 It submits that "[e]ven if there is no formal res judicata in play the Tribunal should give appropriate respect and weight to the decision made by the Gunter Tribunal".79

b. The Claimants’ position

210.
The Claimants argue that this Tribunal should not accord any weight to the Gunter Tribunal's PO1.80 They in particular rely on this Tribunal's observation in the Decision on Interim Measures (PO6) that it was presented with "a situation that is different from the one of the Gunter Tribunal" to argue that the ACP's arguments on the Gunter Tribunal's PO1 are moot.81
211.
The Claimants further note that they are seeking declaratory relief that all of the Advances are not determinable, due, and/or payable until the final resolution of the disputes. This issue, however, was never considered by the Gunter Tribunal and is not addressed within the scope of the latter's PO1, which was limited to "the Advance Payment Bond [...] which covers the outstanding amount of USD 18 million of the Advance Payment for Lock Gates - Second that is due on 31 December 2016".82 Furthermore, the Gunter Tribunal made it clear that its analysis of the request for interim measures was prima facie and that it would not make any final decisions until a full review on the merits.83

c. Analysis

212.
The Tribunal considers that the Gunter Tribunal’s PO1 is a procedural order rendered in a different proceeding whose subject-matter is distinct from the one at issue in this arbitration. While the Gunter Tribunal’s PO1 dealt with a request for interim measures in relation to some of the Advances, its scope was much narrower than the issues before this Tribunal. Furthermore, the Gunter Tribunal’s decision was taken merely prima facie. For these reasons, the Tribunal rejects the ACP’s arguments that the Tribunal should accord "weight" to the Gunter Tribunal’s PO1.

C. The Parties' allegations regarding document production

213.
Each Party has taken issue with the other Party’s allegedly deficient document production.84 In particular, in its Rejoinder on Preliminary Issues, the ACP requested that the Tribunal draw adverse inferences "in relation to the Claimants’ manifestly deficient document production".85 The Tribunal notes that such request is not included in the ACP’s prayers for relief (see supra section VI). Be that as it may, the Tribunal has reviewed the Parties’ document production and considers that neither Party has established that the other Party’s document production was deficient or otherwise inadequate. Under the circumstances, any request that the Tribunal draw adverse inferences from a Party’s lack of adequate production is denied.

IX. JURISDICTION

214.
This section deals with the Respondent’s jurisdictional objections to the claims on the merits. It does not address the ACP’s defense of lack of jurisdiction in respect of the interim measures requested by the Claimants, as the Tribunal has already addressed such defense in PO6.86

A. The Respondent’s position

1. Overview of the Respondent’s objections to jurisdiction, admissibility, and standing

215.
The Respondent seeks "a declaration that the Tribunal has no jurisdiction over the claims advanced by the Claimants and that the Claimants have no standing to bring their purported claims, or any of them, and that their claims are inadmissible in this arbitration".87
216.
In sum, the Respondent has raised the following objections to jurisdiction, admissibility, and standing:

a. The Tribunal "has no jurisdiction to hear the First Claimant’s claims" under the Contract, because Claimant 1 has failed to comply with the mandatory pre-conditions to arbitration provided in Clause 20 of the Conditions of Contract (infra at IX.A.2). The Respondent maintains that Claimant 1 was required to refer its claims to the "Dispute Adjudication Board" (the "DAB") and submit a notice of dissatisfaction, but has failed to do so.88

b. The Tribunal "has no jurisdiction" to hear any claims which Claimants 2-6 may make under the Contract since they are not parties to the arbitration agreement contained in the Contract (infra at IX.A.3.a). Furthermore, Claimants 2-5 "lack standing" to bring any such claims since they are no longer parties to the Contract. With particular regard to Claimants 2-4, the Respondent maintains that, in the Cofferdam Jurisdiction Award, the Cofferdam Tribunal has already denied that the Claimants have standing to bring claims under the Contract. Claimants 2-4 have thus "no freestanding right to arbitrate the Repayment Issue under the Contract, independent of the First Claimant’s standing to seek determination of that issue under the Contract".89

c. The claims of Claimants 2-6 under the Panamanian Law Guarantees are inadmissible for two main reasons:

i. First, no dispute has crystallized under the Panamanian Law Guarantees, because the ACP has not called the Panamanian Law Guarantees. There is thus no "live dispute" capable of being referred to arbitration (infra at IX.A.3.b).90

ii. Claimants 2-6 cannot bring claims under the Panamanian Law Guarantees as no rights accrue to them under those instruments. The Panamanian Law Guarantees are unilateral contracts which create no independent right for Claimants 2-6 to assert a cause of action against the ACP (infra at IX.A.3.c).91

d. Furthermore, the Claimants' attempt in this arbitration to re-litigate issues raised before the Gunter Tribunal and decided in the ACP's favor in the Gunter Tribunal's PO1 "is a breach of the GAA" by Claimants 2-6 and the GAA therefore "acts as a bar to the claims advanced by the Claimants".92 Moreover, to the extent that Claimants 2-4 sought to advance claims under the Contract, thereby disregarding and failing to give effect to the Cofferdam Jurisdiction Award, they would also be in breach of Sub-Clause 2.1(b) of the GAA.93 The ACP contends that "[s]ave for the above, the GAA has nothing to do with the claims asserted by" Claimants 2-6 and there is thus no jurisdiction ratione materiae under the GAA.94

217.
The Respondent's request for relief in respect of jurisdiction, admissibility, and standing is set out above at paras. 0-50.

2. No jurisdiction in respect of Claimant 1’s claims under the Contract

218.
First, the Respondent argues that the Tribunal has no jurisdiction over Claimant 1's claims under the Contract as the pre-conditions to arbitration under Clause 20 of the Contract include a DAB decision and a notice of dissatisfaction, and Claimant 1 has not met these conditions.95 Claimant 1's "claims are therefore inadmissible and this Tribunal has no jurisdiction to determine them".96
219.
The Respondent maintains that the dispute resolution mechanism in the Contract provides for a series of precise requirements that must be fulfilled prior to initiating arbitration. In particular, so the Respondent submits, "[a]ny and all disputes" must be referred to the DAB97 and the following process must be followed before these disputes can be arbitrated:

a. A dispute must be referred to the DAB in accordance with Clauses 20.2, 20.3, and 20.4 of the Conditions of Contract;

b. The DAB must issue a decision;

c. A party must submit a notice of dissatisfaction within 28 days of receiving that decision pursuant to Sub-Clause 20.4 of the Conditions of Contract; and

d. As required by Sub-Clause 20.5 of the Conditions of Contract, at least 56 days must have elapsed since the day on which the notice of dissatisfaction was given.98

220.
The Respondent contends that the Repayment Issue has never been referred to the DAB and no notice of dissatisfaction has ever been submitted in respect of any DAB decision (or any failure by the DAB to reach a decision within the stipulated period) with regard to the claims which Claimant 1 purports to assert in this arbitration.99
221.
For the Respondent, it is clear that the reference to the DAB in FIDIC contracts is a condition precedent to arbitration.100 In this case, Clause 20 of the Conditions of Contract is phrased in mandatory terms, as can be evinced from the words "shall" and "dispute [...] of any kind whatsoever", as well as by the penultimate paragraph of Sub-Clause 20.4, which reads as follows:

[...] neither Party shall be entitled to commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance with this Sub-Clause 20.4.101

222.
The Respondent submits that, by definition, there can be no notice of dissatisfaction unless there has first been a reference to the DAB and a decision (or a failure to issue a decision within the required time).102
223.
According to the Respondent, the Claimants themselves have acknowledged Claimant 1’s failure to comply with the mandatory pre-requirements.103 In particular, the ACP points to the proposal which Claimant 1 made before the start of this arbitration in December 2016, that the Parties "find a new method for the resolution of the many disputes still pending between the Parties".104 In that context, Claimant 1 added that "[t]he appropriate step in all Parties’ interests to minimi[z]e the time needed to get to a final resolution of the Parties’ disputes is now to agree not to use the DAB further".105 A similar invitation to the ACP was then made in the Claimants’ Request for Arbitration.106 As further evidence of the Claimants’ acknowledgment that the DAB proceedings are a mandatory pre-condition to arbitration, the ACP also refers to Claimant 1’s conduct in one of the DAB proceedings, the so-called Referral no. 16;107 to further correspondence from the Claimants reiterating their proposal to dispense with the DAB process;108 to their stance in different ICC arbitrations commenced against the ACP;109 and to Claimant 2’s 2014, 2015, and 2016 financial reports.110
224.
Furthermore, the Respondent rebuts the Claimants’ arguments that the DAB was a "near total failure" and argues that it is the Contractor - and not the ACP - who has sought to deliberately stall the progress of its claims before the DAB.111
225.
Finally, in the Respondent’s view, the fact that it commenced litigation of the Repayment Issue in the English Court proceedings under the English Law Guarantees has no bearing on the question of this Tribunal’s jurisdictional basis to hear the Repayment Issue under either the Contract or the Panamanian Law Guarantees, as the dispute on the Repayment Issue before the English Courts is ripe for determination, unlike the present "dispute" under the Panamanian Law Guarantees.112 Furthermore, the ACP denies that it has waived the right to insist on compliance with the contractual pre-requisites to arbitration when it commenced the English Court proceedings. The Respondent submits that the Claimants do not explain what law applies to their waiver argument, or what test governs the issue.113 In any event, the ACP has at all times insisted on compliance with the DAB process.114

3. No jurisdiction over the claims of Claimants 2-6 under the Contract

226.
The Respondent submits further that the Tribunal has no jurisdiction over the claims of Claimants 2-6 or that such claims are inadmissible or that the Claimants have no standing to bring them, because (a) Claimants 2-6 "have no right to arbitrate the Repayment Issue" under the Contract; (b) there is no dispute under the Panamanian Law Guarantees; and (c) Claimants 2-6 "have no rights under the Panamanian Law Guarantees in respect of which they can seek relief from the Tribunal".

a. Claimants 2-6 have no right to arbitrate the Repayment Issue

227.
The Respondent contends that the claims of Claimants 2-6 are "necessarily contingent" upon the Repayment Issue, which requires determination under the Contract.115 However, Claimants 2-6 have "no standing" to seek any determination of a matter pursuant to the Contract, because they are not parties to the Contract. Because the claims of Claimants 2-6 are "entirely dependent" on Claimant 1's claims and the Tribunal has no jurisdiction over these claims under the Contract for the reasons previously explained, the Tribunal also lacks jurisdiction over the claims of Claimants 2-6.116
228.
First, the ACP maintains that Claimants 2-6 cannot bring claims (or reserve the right to bring claims) under the Contract, because they are not parties to it. By the express terms of the AAA, Claimants 2-5 assigned to the Contractor all of their "rights and obligations, warranties, duties, liabilities and undertakings under and pursuant to the Contract".117 In the Respondent’s view, under U.S. federal law which governs the arbitration agreement, "an assignment ordinarily extinguishes the right to compel arbitration".118
229.
Thus, as a result of the assignments, so the Respondent insists, Claimants 2-5 are no longer parties to the Contract, and are deemed never to have been parties to the Contract.119 As for Claimant 6, it has never been a party to the Contract and is thus likewise precluded from asserting any claims under the Contract.120
230.
For those reasons, the Tribunal has no jurisdiction over any of the claims of Claimants 2-6. Any purported reservation to make claims under the Contract in the future has no effect whatsoever.121
231.
In addition, the Respondent maintains that Claimants 2-4 are subject to the "preclusive effect" of the Cofferdam Jurisdiction Award (for the reasons mentioned above at section VIII.B.1). The Cofferdam Jurisdiction Award held that Claimants 2-4 "have no standing to bring claims against the Respondent under the Contract, [and] the Tribunal has no jurisdiction to hear the claims brought by the Second to Fourth Claimants under the Contract".122 In giving effect to the AAA, the Cofferdam Tribunal confirmed that "[i]t is clear from [Clause 2 of the AAA] that the Second to Fourth Claimants are considered to have never been the Contractor. This provision clearly states that the assignment is effective from the 'original date’ of the Contract. The Second to Fourth Claimants are therefore no longer parties to the Contract and consequently they are also no longer parties to its arbitration clause".123
232.
In the Respondent’s view, the same conclusion applies in respect of Claimants 5-6, although they were not parties to the Cofferdam Arbitration. Thus, any claims that Claimants 5-6 attempt, or might in future attempt, to raise under the Contract should be dismissed for the same reasons that the claims of Claimants 2-4 were rejected by the Cofferdam Tribunal.124 Further, given the "close relationship" between Claimants 5-6 and Claimants 2-4 (as joint shareholder with Claimant 2-4 in GUPC in the case of Claimant 5 and as parent of Claimant 4 in the case of Claimant 6), Claimants 5-6 are "estopped" from bringing claims under the Contract by virtue of the Cofferdam Tribunal’s determination under principles of U.S. federal law on collateral estoppel.125

b. There is no dispute under the Panamanian Law Guarantees

233.
The Respondent maintains that the Tribunal lacks jurisdiction over Claimants 2-6’s claims for declarations that the Advance Payments are not due, determinable or payable under the terms of their respective Panamanian Law Guarantees or, alternatively, that such claims are inadmissible, because there is no dispute between the Parties under those Guarantees.126
234.
The ACP contends that it has never demanded that Claimants 2-6 repay the Advance Payments under any of the Panamanian Law Guarantees, and as a result, "no live dispute currently exists under the Panamanian Law Guarantees".127 Because the ACP has not asserted that Claimants 2-6 must pay under these guarantees, the claims are "purely theoretical and not ripe for review".128 The ACP submits that the plain language of the guarantees requires a demand from the ACP in order to trigger a performance obligation on the part of the guarantors, i.e. Claimants 2-6.129 Without a demand, so argues the Respondent, there can be no dispute between the Parties that the Advance Payments are not due or payable under the Panamanian Law Guarantees.130 For the ACP, the Claimants’ "strained interpretation" of Clauses 1.1(a) and 1.1(b) as including "separate and distinct obligations" is inconsistent with the text of those clauses.131
235.
The ACP further denies having made or threatened any demand under the Panamanian Law Guarantees and contends that the reservation of rights precisely shows that no demand was made at the time of the making of the relevant statement.132 Furthermore, such reservation of rights were general in nature and do not amount to a "demand" for performance under the Panamanian Law Guarantees.133
236.
Thus, absent such demand, "the Tribunal not only lacks jurisdiction [...] since there is no dispute that can be referred to arbitration [...] but any claim asserted by the Second to Sixth Claimants is defective and therefore inadmissible due to the absence of a precondition to arbitration".134
237.
For the Respondent, this conclusion is confirmed by Panamanian law, whereby the debtor is not in default when the creditor has not demanded payment of the obligation.135

c. No other rights exist under the Panamanian Law Guarantees on which Claimants 2-6 may found a claim

238.
Finally, the Respondent contends that the Panamanian Law Guarantees are a type of contract known as fianza solidaria under Article 1512 of the Panamanian Civil Code. Fianzas are "unilateral" contracts, in the sense that they only impose obligations on one party, in this case the guarantor. In such a contract, the guarantor has no rights against the creditor and no obligation is imposed on the other party of the fianza.136
239.
Therefore, Claimants 2-6 "do not have any rights under the Panamanian Law Guarantees against the ACP that may be invoked in a positive fashion (as a sword and not a shield) to seek relief from the Tribunal. As unilateral contracts, the Panamanian Law Guarantees do not recognize such rights".137

B. The Claimants’ position

1. Overview of the Claimants’ position on jurisdiction, admissibility, and standing

240.
The Claimants request the Tribunal to dismiss, in their entirety, all of the objections raised by the ACP in respect of the Tribunal's jurisdiction and the admissibility of the claims presented in this arbitration.
241.
The Claimants argue that the Tribunal’s jurisdiction must be determined under U.S. law and have put forward the following main arguments to rebut the ACP’s jurisdictional, admissibility, or standing objections.
242.
First, the Tribunal has jurisdiction over Claimant 1’s claims as any insistence on the DAB pre-condition would be futile and unwarranted under the circumstances (infra at IX.B.2).
243.
Second, at this juncture Claimants 2-6 do not raise claims under the Contract and thus the Cofferdam Jurisdiction Award is of no relevance to the claims asserted in this arbitration (infra at IX.B.3.a).
244.
Third, the Tribunal has jurisdiction over the claims of Claimants 2-6 under the Panamanian Law Guarantees, whose broad dispute resolution clauses encompass requests for declaratory relief (infra at IX.B.3.b). Furthermore, there is a "dispute" between the Parties that is ripe for determination (infra at IX.B.3.c) and the Panamanian Law Guarantees provide rights and obligations to both the ACP and Claimants 2-6 (infra at IX.B.3.d).
245.
The Claimants’ prayers for relief in respect of jurisdiction, admissibility, and standing are set out above at paras. 47 and 48.

2. The Tribunal has jurisdiction over Claimant 1's claims

246.
The Claimants submit that the Tribunal has jurisdiction over Claimant 1’s claims under the Contract, the arbitration clause of which covers disputes relating to the Initial and Additional Advances. According to the Claimants, the Respondent’s arguments that Claimant 1 should have first referred this dispute to the DAB are meritless.138 It was the ACP that chose to bypass the DAB and, indeed, attempted to bypass this Tribunal, by proceeding directly against the Shareholders under the English Law Guarantees while interim measures proceedings were ongoing before the Gunter Tribunal. In those circumstances, the ACP has waived any entitlement to seek compliance with pre-arbitral steps such as a DAB referral (which would, in any event, have been a futile waste of time for both Parties).139 More specifically, the Claimants have put forward the following arguments to rebut the ACP’s invocation of the DAB procedure.
247.
First, they assert that under U.S. federal law, which governs the Tribunal’s jurisdiction, it is for the Tribunal to decide whether or not the DAB procedure must be followed in the present circumstance.140 Further, the requirement to first resort to the DAB pursuant to Sub-Clause 20.4 of the Contract is not a mandatory condition precedent. Thus it does not create a jurisdictional bar to ICC arbitration; it is a matter of "procedural arbitrability".141 As such it "is a matter capable of affecting, at most, the admissibility of claims pursued in this ICC arbitration".142
248.
Second, the Claimants argue that the Tribunal must assess all the facts in order to determine whether the ACP is entitled to strict compliance with Sub-Clause 20.4 of the Contract and, consistent with U.S. law. Making such assessment, it must take into account the general principle of good faith and fair dealing.143 For the Claimants, the ACP "may not be allowed to prolong resolution of a dispute by insisting on a term of the agreement that, reasonably construed, can only lead to further delay".144
249.
Third, the Claimants review the Parties’ experience submitting their disputes on the Third Set of Locks Project to the DAB and observe that the DAB process was affected by long delays, which, in their view, were due to the ACP’s "obstructive attitude".145 They explain that "[b]y 2016 DAB referrals [...] were taking longer to complete than many arbitrations, and with the Project having been completed in June 2016, there was nothing to be gained by the Parties making further use of the DAB, when it was plain to both ACP and GUPC S.A. that all disputes would ultimately need to be resolved in ICC arbitration".146 It is in that context that in December 2016 the Claimants proposed to the ACP to dispose of the DAB in order to speed up the resolution of their disputes.147 Such proposal was then repeated in the Request for Arbitration, however with the specification that no referral to the DAB was required before commencement of this arbitration and with full reservation of Claimant 1's rights.148
250.
Fourth, the Claimants contend that the ACP's conduct precludes it from relying on procedural defenses under Clause 20 of the Contract.149 In the Claimants' view, despite the fact that a dispute regarding the Advances had arisen in November 2016, the ACP chose not to refer that dispute to the DAB under Sub-Clause 20.4 of the Contract, instead purporting to invoke the jurisdiction of the English Courts under the English Law Guarantees to resolve issues arising under the Contract (the Additional Advances Payment Issue).150 Because the English Law Guarantees provide that the payment will be made "as and when due under the Contract", by commencing the English court proceedings the ACP unequivocally and irrevocably waived any entitlement to invoke pre-arbitral requirements under Clause 20 of the Contract against GUPC, be it as a matter of jurisdiction or of admissibility.151
251.
More specifically, the Claimants' position is that the contractor under a FIDIC contract can refer a dispute directly to arbitration without going through a DAB referral in circumstances where the employer has acted inconsistently with the dispute resolution procedure envisaged by the Contract.152 Here, the ACP sought to avoid the contractual dispute resolution procedure entirely (both the DAB and ICC arbitration), bringing the dispute instead before the English Court.153
252.
As a result, so say the Claimants, the ACP's invocation of Clause 20 of the Contract is in bad faith, and the ACP is precluded from raising procedural defenses against GUPC under that clause.154 Indeed, the Project is complete and the ACP has no legitimate interest in a DAB referral.155 In those circumstances, it would be entirely futile for Claimant 1 to refer its claims regarding the payment of the Advances to the DAB before going to ICC arbitration.156
253.
Finally, the Claimants maintain that, if the Tribunal were to find that the DAB procedure applies under the circumstances, the "ordinary remedy" would be for the Tribunal to stay these proceedings vis-à-vis Claimant 1 pending the outcome of a DAB referral.157 While such a temporary stay pending compliance with procedural preconditions "is a solution that is commonly adopted in international arbitral practice, as well as under U.S. law",158 it would be entirely inappropriate in this case.159 This is so because the claims of Claimants 2-6 would continue in this arbitration regardless of a stay imposed on GUPC, and because "there remains effectively no DAB in place" now that the Project is completed and the DAB has decided all substantive claims.160 In any event, so say the Claimants, if the Tribunal were inclined to stay these proceedings with regard to Claimant 1 pending a referral to the DAB procedure, the Tribunal’s decision on interim measures should be maintained during the stay.161

3. The Tribunal has jurisdiction over the claims of Claimants 2-6

a. Claimants 2-6 do not assert claims under the Contract and the Cofferdam Jurisdiction Award is thus irrelevant to the claims raised in this arbitration

254.
As a preliminary matter, Claimants 1 and 3-6 submit that the ACP’s arguments in connection with the Cofferdam Jurisdiction Award are irrelevant because "Claimants 3-6 reserve their right to assert claims under the Contract and are not, at this juncture, asserting claims under the Contract".162 Claimant 2 has also confirmed that it "does not bring any claim in these proceedings under the Contract",163 although it "has [...] reserved its right to do so".164
255.
For the reasons recalled above, Claimants 1 and 3-6 argue that, in any event, the Cofferdam Jurisdiction Award has no preclusive effect on this arbitration, "including in the event that Claimants 3-4 ever assert contractual claims [under the Contract]".165
256.
Finally, even assuming arguendo that the Cofferdam Jurisdiction Award has an effect on this Tribunal’s jurisdiction, such effect then applies equally to the Cofferdam Tribunal’s determinations in respect to the JSG, namely that (1) Claimants 2-4 have standing to assert claims under the JSG, and (2) the Tribunal has subject matter jurisdiction over those claims. For Claimants 1 and 3-6, the ACP "cannot cherry pick which issues have preclusive effect".166 Claimant 2, in turn, contends that the Cofferdam Tribunal’s jurisdictional findings on the Guarantees, according to which "the language of the arbitration agreement in the JSG should be broadly interpreted such that it was not necessary for a demand to be made before a dispute could be said to have arisen"167 - are "instructive to the Tribunal in these proceedings".168

b. Claimants 2-6 may present claims arising out of the Guarantees or the subject matter of the Guarantees

257.
The Claimants contend that Claimants 2-6 may advance claims that arise out of the Panamanian Law Guarantees or the subject matter of those guarantees under the broad arbitration agreements, the language of which encompasses "[a]ny dispute arising out of, under or in connection with this Guarantee or out of the subject matter of the Guarantee".169
258.
For the Claimants, such a broad arbitration clause covers disputes related to the Advances and their payment.170 More specifically, pursuant to Clause 1.1(a) of the JSG, the subject matter of the JSG is the "due and punctual performance" of the Contract. This necessarily includes matters relating to the Advances, which were made pursuant to the Contract.171
259.
Consequently, in accordance with the strong presumption of arbitrability under the U.S. Federal Arbitration Act ("FAA"),172 "the Tribunal has jurisdiction to determine the GUPC Payment Issue and the Guarantor Liability Issue" under the broad arbitration clause of the JSG and the other Panamanian Law Guarantees.173 The Claimants further point out that, "[w]hile not binding, it is informative that both the Cofferdam and the Concrete tribunals previously have confirmed the Shareholders' right to pursue claims under Sub-Clause 9.2".174
260.
For the Claimants, the fundamental issue in this arbitration, i.e. whether Claimants 2-6 are liable to make any payments to the ACP under the terms of the Guarantees as construed in accordance with Panamanian law (i.e., the Guarantor Liability Issue), is clearly in "dispute" between the parties to the Guarantees. It is also within the scope of Clause 9.2 of the Guarantees, as it arises "out of", "under", "in connection with" the Guarantees, and at minimum "out of the subject matter of" the Guarantees.175
261.
While the Guarantor Liability Issue is contingent on the Repayment Issue, in the sense that a tribunal called upon to determine the Guarantor Liability Issue must first resolve the Repayment Issue,176 this Tribunal has jurisdiction to rule on the Guarantor Liability and the Repayment Issues under the arbitration agreements of the Panamanian Law Guarantees. For the Claimants, under U.S. law, a tribunal can determine rights arising under a separate document where those rights are implicated in the parties' claims, and a tribunal's jurisdiction extends to all issues relevant to settle the dispute arising under the contract to which an arbitration clause relates.177
262.
Finally, the Claimants note that the Panamanian Law Guarantees contain no pre-conditions to arbitration similar to those provided in the Contract.178

c. The dispute under the Panamanian Law Guarantees is ripe for determination

263.
The Claimants argue that there is no legal or contractual requirement for the ACP to first demand payment before Claimants 2-6 can seek declaratory relief under the Panamanian Law Guarantees.179 For the Claimants, Sub-Clauses 1.1(a) and 1.1(b) of the JSG contain "separate and distinct obligations" under Panamanian law:

a. Sub-Clause 1.1(a) imposes an express, free-standing obligation on the Shareholders to ensure performance of GUPC’s obligations under the Contract, on a continuing basis, without the need for any formal demand under the JSG.180 Under such clause, so the Claimants argue, the Shareholders must assure the "due and punctual" performance of the Contract and are required to take all necessary measures to prevent GUPC from defaulting on its duties under the Contract, including any duty it may have in connection with the payment of the Advances - not just to rectify after the fact any failure to perform.181

b. By contrast, Sub-Clause 1.1(b) of the JSG "contains a separate and distinct obligation, arising only in the situation where GUPC S.A. already is in breach of its obligations".182 For the Claimants, such clause is triggered only (1) in the event of a "breach" of GUPC’s obligations under the Contract and (2) upon a "demand" from ACP; it accordingly only applies if GUPC is already in default.183

264.
Since under Sub-Clause 1.1(a) Claimants 2-6 must ensure the "due and punctual performance" of Claimant 1’s obligations under the Contract prior to any default by GUPC, there is no legal or contractual requirement to demand payment under the Panamanian Law Guarantees, or to wait until GUPC defaults for the guarantee obligations to crystallize.184
265.
Moreover, the Claimants note that the ACP’s arguments are premised on Panamanian law. However, the arbitration agreements contained in the Panamanian Law Guarantees are governed by U.S. law, which thus applies to the question of whether a "dispute" has arisen.185 As a matter of U.S. law, it is clear that a dispute has arisen between the Parties with respect to the Guarantees and their subject-matter, as the ACP has taken, and intends to take, active steps to receive the Advance Payments secured by the Guarantees, and the Claimants dispute the ACP’s right to do so.186
266.
Furthermore, the Claimants maintain that, even if there were any demand requirement to trigger Sub-Clause 1.1(a) of the Panamanian Law Guarantees, contemporaneous evidence shows that the ACP has repeatedly made demands, or at least threatened to make demands, under the Panamanian Law Guarantees.187 The Claimants point in particular to "at least 15 letters", in which the ACP "reserved" its right to call upon "the letters of credit, guarantees and other security documents" provided by the Claimants, including the Panamanian Law Guarantees.188 The ACP’s statements in this arbitration that it intends to call the letters of credit constitute "further demands by ACP for Claimants 3-6's performance (i.e., payment of the Advances) that give rise to the declaratory relief sought by Claimants 3-6 in this arbitration".189

d. The Panamanian Law Guarantees provide rights and obligations to both the ACP and Claimants 2-6

267.
As a preliminary matter, the Claimants put forward that, by asking the Tribunal to first find that they have no substantive rights under the Guarantees and then only that there is no jurisdiction, the Respondent "puts the cart before the horse".190 The ACP is conflating a question of merits (i.e. the extent of the parties' rights under the Guarantees under Panamanian law) with a question of jurisdiction (whether a dispute has arisen under the Guarantees), which must be answered first.191
268.
The Claimants in any event refute the argument that the ACP is the only party which can assert rights under the guarantees. For the Claimants, the ACP has obligations and the guarantors have rights under the Panamanian Law Guarantees.192
269.
Furthermore, contrary to the ACP's contentions, the Claimants argue that the Panamanian Law Guarantees, including the JSG, integrate mandatory provisions of Panamanian law in accordance with Articles 30 and 1109 of the Civil Code.193 Consistent with the principle of integration, the Panamanian Law Guarantees oblige the ACP to act in accordance with the principle of equity and good faith under its own Regulation and Organic Law.194
270.
The Claimants further submit that Panamanian law requires the ACP to abide by statutory obligations, such as those providing that parties to a contract are liable for damage caused by their negligence, misrepresentation, default, or breaches of law (Article 986 Panamanian Civil Code), regardless whether the guarantees are deemed bilateral or unilateral agreements.195 Therefore, the ACP has obligations under the Panamanian Law Guarantees and Claimants 2-6 may assert claims relating to the ACP's breach of such obligations.196
271.
According to the Claimants, the Panamanian Supreme Court confirmed that a creditor under a fianza has obligations towards the debtor that, even under unilateral contracts, both parties are obliged to comply with their legal duties, and that the creditor cannot exercise its rights in violation of law or in an abusive manner.197
272.
Alternatively, in the event that the ACP is held to have no obligations under the Panamanian Law Guarantees, Claimants 2-6 would be entitled to request negative declaratory relief to clarify the nature and extent of their own obligations, so argue the Claimants. In this case, Claimants 2-6 are seeking a declaration that their obligations under the Panamanian Law Guarantees with respect to the Advances are unenforceable until the final Contract price is determined.198 In other words, the Claimants seek relief "as a shield against ACP’s unjustified demands and not a sword", by requesting that this Tribunal determine whether the ACP has a right to call the Advance Payments.199 In other words, this arbitration has been commenced to determine whether the ACP is entitled to claim repayment of the Advance Payments, and the Claimants have a legal interest in this Tribunal deciding that issue by exercising its jurisdiction under the Panamanian Law Guarantees.200

C. Analysis

273.
The Tribunal begins by noting that there are two main strands of the dispute before it. First, the Claimants seek declaratory relief in relation to the repayment of the Advances. Second, they seek declarations in respect of sums withheld by the ACP in respect of the Maintenance Services.201
274.
As legal bases for their claims in relation to the repayment of the Advances, the Claimants invoke (i) the Contract in respect of GUPC and the "GUPC Payment Issue" or "Repayment Issue", i.e., in essence, the question when GUPC’s obligation to repay the Advances arose or will arise under the Contract;202 and (ii) the Panamanian Law Guarantees in respect of Claimants 2-6 and the so-called "Guarantor Liability Issue", i.e. "whether or not any of Claimants 2-6 are liable to make any payments to ACP under the terms of the Guarantees as construed in accordance with Panamanian law".203 The legal basis for the claims of Claimant 1 in connection with the Maintenance Services is the Contract.
275.
The Respondent contends that the Tribunal lacks jurisdiction over (1) Claimant 1’s claims in relation to the Advances and the Maintenance Services under the Contract, and (2) Claimants 2-6’s claims under the Panamanian Law Guarantees.
276.
The Tribunal will address these two objections in turn (infra at IX.C.1 and IX.C.2, respectively). Before addressing the Respondent’s objections below, the Tribunal notes that in its submissions the ACP has used the terms "jurisdiction" and "admissibility" interchangeably and has not sought to articulate the difference, if any, between these concepts. To the extent relevant to the circumstances of this case, the Tribunal considers this to be a distinction without a difference. Therefore, the Tribunal’s conclusions apply equally in respect of jurisdiction over and admissibility of the claims.
277.
Furthermore, the Tribunal will dispense with addressing the Respondent’s jurisdictional, admissibility, and "standing" arguments in relation to claims that Claimants 2-6 were to bring under the Contract, as Claimants 2-6 have confirmed that they are not raising any claims under the Contract in these proceedings.204

1. Jurisdiction over the claims of Claimant 1 under the Contract

278.
The Respondent argues that the Tribunal "has no jurisdiction over the First Claimant's claims, which are inadmissible",205 because Claimant 1 has failed to comply with the mandatory pre-conditions to arbitration at Sub-Clause 20 of the Conditions of Contract, because it has not referred its claims to the DAB nor did it submit a notice of dissatisfaction.
279.

In relevant part, Sub-Clause 20 of the Conditions of Contract provides as follows:

20.6 Arbitration

Unless settled amicably, any dispute in respect of which the DAB's decision (if any) has not become final and binding shall be finally settled by international arbitration in law (within the meaning of Panamanian law). Unless otherwise agreed by both Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the "Rules");

(b) In addition to the Rules, the arbitrators will be guided but will not be bound, by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with the Rules;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the language for communications defined in Sub-Clause 1.4 [Law and Language];

(e) the venue of the arbitration shall be Miami, Florida - United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

The arbitrators shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Employer's Representative, and any decision of the DAB, relevant to the dispute. Nothing shall disqualify the Employer's Representative from being called as a witness and giving evidence before the arbitrators on any matter whatsoever relevant to the dispute.

Neither Party shall be limited in the proceedings before the arbitrators to the evidence or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration.

Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Employer's Representative and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works.

280.
Pursuant to Sub-Clause 20.6(f) of the Conditions of Contract, the Tribunal’s jurisdiction is governed by the FAA. Accordingly, the Tribunal must assess the effects of the DAB provision on the arbitration by application of U.S. federal law. In the context of the FAA, the U.S. Supreme Court in BG Group v. Argentina held that: (i) it is for an arbitral tribunal, and not for the courts, to decide questions of compliance with preconditions206 (a point which the ACP does not dispute);207 and (ii) a party’s failure to comply with a procedural precondition is not a bar to jurisdiction.208
281.
With respect to the latter issue, the U.S. Supreme Court noted that Article 8 of the UK-Argentina BIT, at stake in BG Group v. Argentina, provided that "only the 'arbitration decision shall be final and binding on both parties’". It consequently held that the 18-month domestic court litigation requirement contained in the treaty was a "purely procedural requirement - a claims-processing rule that governs when the arbitration may begin, but not whether it may occur or what its substantive outcome will be on the issues in dispute".209 The Court added that such a pre-arbitration condition did not "give substantive weight to the local court’s determinations on the matters at issue between the parties" because only the arbitration decision would be "final and binding on both Parties".210
282.
In the Tribunal’s view, as in the local litigation requirement at issue in BG Group v. Argentina, the DAB procedure must be regarded as a "purely procedural requirement", a "claims-processing rule". Sub-Clause 20.4, which provides that "either Party may refer the dispute in writing to the DAB for its decision", read in conjunction with the arbitration agreement in Sub-Clause 20.6, operates in the same manner as Article 8 of the UK-Argentina BIT:211 All disputes arising under the Contract must ultimately be decided in an ICC arbitration pursuant to Sub-Clause 20.6 of the Conditions of Contract ("shall be finally settled"), and the ICC tribunal need give no "substantive weight" to a prior decision of the DAB. Indeed, under the dispute settlement provisions of the Contract, any party dissatisfied with a DAB decision is entitled to commence ICC arbitration proceedings, and the DAB decision is not binding on the ICC tribunal, which "shall have full power to open up, review and revise [...] any decision of the DAB", as Sub-Clause 20.6 specifies. In that connection it is noticeable that, pursuant to Clause 20.6(f), neither party is limited in an arbitration to the evidence or arguments previously put forward to the DAB or to the reasons for dissatisfaction given in the notice of dissatisfaction. Thus the arbitration procedure is not an appeal from the decision of the DAB, nor (or not necessarily) even a rehearing of the evidence and the arguments put before the DAB. This further emphasizes the primacy of the arbitration procedure in the dispute resolution mechanism under the Contract.
283.
This being so, under the circumstances, the Tribunal considers that the requirement to exhaust the DAB remedy before resorting to arbitration would serve no purpose other than to delay the arbitration. This is particularly true now that the Project is completed and taken over.
284.
To use the U.S. Supreme Court’s words, the DAB has "no direct impact on the resolution of [the Parties’] dispute"212 and does not bar the Tribunal’s jurisdiction. Therefore, the Tribunal has jurisdiction over the claims raised by Claimant 1 under the Contract in relation to both the Repayment Issue and the Maintenance Services, and these claims are thus admissible.213
285.
The Tribunal considers that its conclusion is confirmed by the ACP’s conduct in the English Courts. When a dispute arose over the repayment of the Advances in the course of 2016, the ACP did not refer that dispute to the DAB. Instead, it turned to the English Courts under the English Law Guarantees for reasons which it describes in the following terms:

Faced with the First Claimant's failure to honour its repayment obligations under the Contract and the Second to Sixth Claimants' failure to honour their obligations under the English Law Guarantees, the ACP commenced proceedings in the English Court on 30 November 2016 to enforce the terms of the English Law Guarantees and recover the Advance Payments from the Second to Sixth Claimants (the 'English Court Proceedings').214

286.
Accordingly, the ACP invoked the jurisdiction of the English Court to resolve issues arising under the Contract, i.e., the so-called Additional Advances Payment Issue. The English Law Guarantees provide that payment will be made "as and when due pursuant to the Contract".215 In the Tribunal's view, by commencing the English Court proceedings, the ACP considered that it could dispense with respecting any pre-arbitral procedural requirement vis-à-vis GUPC. In other words, when the ACP deemed itself entitled to payments from GUPC, it submitted the dispute directly to the English Court, without previously resorting to the DAB. Under the circumstances, the Tribunal considers that the ACP cannot insist now on raising procedural defenses against GUPC under Clause 20 of the Conditions of Contract in this arbitration.
287.
In conclusion, the Tribunal rejects the Respondent's jurisdiction and admissibility objections in respect of Claimant 1's claims under the Contract.

2. Jurisdiction over the claims of Claimants 2-6 under the Panamanian Law Guarantees

288.
In this section, the Tribunal addresses the Respondent's jurisdictional and admissibility objections in relation to Claimants 2-6's claims under the Panamanian Law Guarantees.216
289.
Claimants 2-6 have started this arbitration on the basis of the arbitration clauses contained in the Panamanian Law Guarantees.217 The Panamanian Law Guarantees, including the JSG, contain (almost) identical arbitration clauses, which read as follows:

9.2 Any dispute arising out of, under or in connection with this Guarantee or out of the subject matter of this Guarantee shall be finally settled by international arbitration in law (within the meaning of Panamanian law). Unless otherwise agreed by the/both Parties:

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("the Rules");

(b) in addition to the Rules, the arbitration shall be conducted according to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration;

(c) the dispute shall be settled by three arbitrators who shall all be licensed lawyers appointed in accordance with the Rules;

(d) the arbitration shall be decided in law (within the meaning of Panamanian law) and shall be conducted in the English language;

(e) the venue of the arbitration shall be Miami, Florida-United States of America; and

(f) the arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act, 9 U.S.C 1 et seq.

Arbitration may be commenced prior to or after completion of the Works.218

290.
The Tribunal notes that these clauses are very broadly worded. They impose ICC arbitration of all disputes "arising out of, under or in connection with [...] or out of the subject matter of" the guarantees. The Tribunal also observes that they do not subject the initiation of arbitration to any pre-condition, such as a referral to DAB proceedings.
291.
Under the FAA, which is the lex arbitri,219 it is well established that there is a strong presumption of arbitrability (in the U.S. law meaning of "jurisdiction"), particularly when the language of an arbitration clause is broad.220
292.
In this case, there can be no doubt that the broad arbitration clauses embodied in the Panamanian Law Guarantees cover the claims related to the guarantees and the obligation to repay the Advance Payments. The dispute over the obligation of Claimants 2-6 to make payments under the terms of the Guarantees, the subject-matter of which is the "due and punctual performance" of the Contract,221 falls within the scope of the broad arbitration agreement in Clause 9.2 of the Guarantees. Indeed that dispute arises "out of" the Guarantees, "under" the Guarantees, "in connection with" the Guarantees and, at minimum, "out of the subject matter of" the Guarantees.
293.
This being said, the ACP raises two main arguments in favor of a denial of jurisdiction over Claimants 2-6’s claims. First, it contends that there is no "dispute" under the Panamanian Law Guarantees, because it has made no demands under the Guarantees.
294.
The Tribunal cannot follow this argument. As a matter of jurisdiction, there is no legal or contractual requirement for the ACP to first demand payment before Claimants 2-6 can seek declaratory relief under the Panamanian Law Guarantees. The arbitration clauses of the Panamanian Law Guarantees merely require the existence of a "dispute" between the Parties.
295.
In this arbitration, the Claimants have made claims that they are not liable under the Panamanian Law Guarantees to repay the Advances (the Guarantor Liability Issue) because Claimant 1 has no obligation to repay the Advances under the Contract (the Repayment Issue). The ACP has taken, or intends to take, steps to recover the Advance Payments secured by the Guarantees. The Claimants dispute the ACP’s right to do so and have sought negative declaratory relief to that effect, clarifying their obligations under the Panamanian Law Guarantees. Accordingly, a dispute within the meaning of Clause 9.2 of the Guarantees has arisen with respect to the ACP’s right to payment under the Guarantees (and as to the underlying Repayment Issue).
296.
This being so, the ACP’s arguments in relation to the wording of Clause 1.1(b) of the JSG are not relevant to the Tribunal’s jurisdiction, as that clause is not part of the arbitration agreement. In any event, the Tribunal considers that nowhere does Clause 1.1(b) state that a demand for payment is a pre-condition to the existence of a dispute or otherwise to arbitration.222
297.
Furthermore, the absence of a requirement that the ACP make a demand under the Guarantees is consistent with the nature of the negative declaratory relief sought in this arbitration. Indeed, the Claimants have raised their claims as a "shield", so to speak, against the possibility that the ACP make demands under the Guarantees.
298.
Second, as a further argument against jurisdiction, the ACP submits that Claimants 2-6 lack substantive rights under the Guarantees which must be characterized as fianzas according to Panamanian law. Therefore, so says the Respondent, the Tribunal has no jurisdiction over the dispute. In the Tribunal’s opinion, this argument is misconceived and confuses jurisdiction and merits. As a matter of jurisdiction, which must be established under U.S. law, there is nothing in the arbitration agreements that limits recourse to an ICC tribunal to only one Party. The Guarantees simply state that "any disputes [...] shall be finally settled by international arbitration". The existence of a dispute is all that is required (see supra para. 294) and the Tribunal cannot read into the arbitration agreements restrictions that are not there. The determination of the rights that accrue to one or the other Party under Panamanian law (which is the law that governs the merits, not jurisdiction) is a matter pertaining to the merits, not to jurisdiction.
299.
Once again, the Tribunal's understanding is in line with the nature of the relief sought by the Claimants. Even if the latter had no rights but only obligations under the Guarantees (a question which, as stated above, the Tribunal need not address in the context of jurisdiction), they could request a negative declaration to clarify the scope of their obligations. This is precisely what they are doing in this arbitration in connection with their obligations in respect of the Advances.
300.
In conclusion, the Tribunal has jurisdiction to decide Claimants 2-6's claims under the Panamanian Law Guarantees in relation to both the Repayment Issue and the Guarantor Liability Issue, and all of their claims are admissible.223

3. The stay in favor of the English Court

301.
Among the prayers for relief contained in its Reply on Jurisdiction, the ACP asks for "an order staying these proceedings pending the outcome of the English Court".224 This request for relief was not repeated in the Respondent's Rejoinder on Preliminary Issues or in the Respondent's PHB. Hence, the Tribunal understands that the ACP has abandoned such request. If this understanding is incorrect and the Respondent maintains its request for a stay of these proceedings in favor of the English Court, then the Tribunal considers such request moot, as it has already addressed and denied it in PO2.225

X. MERITS

A. Factual background

302.
This section provides a summary of the Parties’ positions on the factual background to the dispute.

1. The Claimants’ position

303.
The Claimants submit that the Contract is a lump-sum contract, subject to adjustments under Sub-Clause 14.1A of the Conditions of Contract. They contend that, during both the pre-tender period and after the signing of the Contract, the ACP represented on multiple occasions that it would provide the necessary financing for the Project, assuring that "the Contractor of the Project will not be required to provide financing for the Project".226 Thus, in their view, the Project’s financial premise under the Contract required the ACP, and not the Claimants, to fully finance the works until Project completion. In particular, the ACP would provide Advance Payments, which the ACP admits cannot be considered as loans under Panamanian law, to be set off by interim payment certificates.227 Thus, the Advances were "intended to keep the Project cash flow positive without financial contributions from the Members".228
304.
Specifically, the Claimants explain that the Contract as originally signed in 2009 provides for advance payments (paid before performance of the works) and interim payments (paid on a monthly basis after performance of the works) that GUPC would receive from ACP to perform its obligations under the Contract.229 In particular, the Contract provides for the payment by the ACP of the Initial Advances, which were to be amortized by deductions from interim payment certificates that GUPC received throughout the course of the works, and fully paid by the time the Project was completed.230
305.
In 2010-2011 as the Project progressed, GUPC, so say the Claimants, began to experience serious delays and difficulties in performing the works (which are subject to dispute resolution proceeding in parallel ICC arbitrations).231 In 2012, GUPC was suffering severe cash flow difficulties, and together with the Shareholders it requested that the ACP grant financial assistance in the form of (i) additional advance payments, and (ii) a moratorium on repayment of the Initial Advances.232
306.
The Claimants explain that the situation worsened to the point that GUPC had to suspend the works on the Project in order to deal with the cost overruns and financing for completion of the works.233 For the Claimants, the financial crisis that led to the suspension of the works, and later the conclusion of the Memorandum of Understanding (the "MoU") in March 2014, were precipitated by the ACP’s inaccurate provision of information and other breaches of the Contract, which caused GUPC to incur massive additional costs to perform the works and seek entitlements to additional costs.234 In particular, the Claimants point to the ACP’s purported goal of "100 percent of claims [being] decided in favor of ACP", instead of making "fair determinations" in accordance with Sub-Clause 3.5, which resulted in approximately USD 1.44 billion in claims pending around January 2014.235
307.
In order to break the impasse, the Parties engaged in extensive negotiations which eventually led to the MoU being signed on 13 March 2014. The Claimants contend that the MoU memorializes the Parties’ agreement to enable the completion of the Project through the provision of additional financing and a moratorium on the repayment of the Advances.236 More specifically, the Claimants make the following allegations:

a. The ACP agreed on a moratorium on payment of the Advances until 31 December 2018, i.e. the date by which the Parties anticipated that they would resolve their disputes over the responsibility for the cost overruns and thus the final Contract price;

b. The ACP agreed to work in good faith with GUPC in the dispute resolution process with the intention that all of the disputes "shall be the subject of a final award" on liability for the cost overruns "by no later than October 31, 2018";

c. The Claimants agreed to provide a USD 400 million credit facility to be deposited into a trust account established for the Project to supply the necessary funds to GUPC and to make repayments on the Advances ("Project Completion Account");

d. The Claimants agreed to utilize half of the proceeds that GUPC would recover from the dispute resolution process for the repayment of the Advances ("Dispute Proceeds"), the other half being used to service the USD 400 million loan;

e. The Parties executed Variation Agreement No. 90 simultaneously with the MoU, to provide a cash injection of USD 200 million into the Project (the "APSE") "funded by the Contractor and the Employer in the amount of USD 100 million each".237

308.
The MoU was later supplemented by the MoUVO dated 1 August 2014, which integrated the Parties' agreement under the MoU into the Contract.238 The Claimants contend that together the MoU and the MoUVO provided for the co-financing of the Project during the time allocated for the resolution of the disputes. For the Claimants, this represented a shift in the understanding of the Parties with respect to the Initial Advances and Additional Advances (except for VO 149), which, under the original Contract terms, would be offset by deductions from the monthly payment certifications. Under the new agreement, payments, if any, were suspended until after resolution of the disputes over the cost overruns and liability for additional financing (i.e., over the Contract price).239 Claimant 2, in particular, contends that the agreement reached in the MoU/MoUVO reflected a change in the underlying "causa" of the Contract. The original financial premise or foundation of the Contract, whereby the ACP would finance the works and the Advances would be set off by the interim certificates, was removed and replaced with a new one. Upon that new premise, the ACP and GUPC would implement a scheme in which they would "co-finance" the additional costs of the works on a mutual basis pending final resolution of the disputes as to liability for such additional costs.240
309.
The Claimants argue that the moratorium agreed under the MoU would remain in place until the disputes between the Parties were to be determined, i.e., at least until 31 December 2018 (during which time the joint and several guarantees of the Shareholders would remain in force), subject to GUPC (i) extending the Scotiabank and HBSC letters of credit until 31 December 2018 (for a moratorium on the Initial Advances) and (ii) putting in place additional letters of credit subject to specific, express criteria set forth under Clause 19(f) of the MoUVO (for a moratorium on the Additional Advances) ("Additional LOCs").241 However, so the Claimants submit, due to the "ACP’s disparaging campaign against GUPC S.A. and its Shareholders", and because the Project was nearing completion at the time, all of the Panamanian banks which were Acceptable Financial Institutions were unable and/or unwilling to provide the Additional LOCs.242
310.
In February 2016, the Parties were able to agree an extension of the time limit to provide the Additional LOCs against additional security from the Shareholders.243
311.
On 20 October 2016, GUPC requested that the ACP vary the Contract to remove the requirement that it provide the LOCs by November 2016.244 On 3 January 2017, it requested a variation to the Contract such that letters of credit issued by European banks could be provided instead.245 These offers, however, were rejected by the ACP.246
312.
The Claimants submit finally that the Parties are before this Tribunal because the ACP threatens to demand the repayment of the Advances prematurely, before the final Contract price and additional costs resulting in Contractor entitlements are determined in the pending ICC arbitrations.247

2. The Respondent’s position

313.
The Respondent submits that the Contract is a fixed price, lump sum, design and build contract based on standard FIDIC Conditions, as amended by agreement between the Parties.248 It rebuts the Claimants’ arguments that it had agreed from the outset that the Contract would be cash flow positive, a fact which in the ACP’s view was also rejected by the Cofferdam Tribunal.249
314.
Thus, so the ACP asserts, the Contractor undertook to perform the works in return for the sum it had tendered (USD 3,118,880,001, as stated in the Contractor’s Price Proposal) and was entitled to the Contract price in return for carrying out the works. It was not entitled to further "financing" from the ACP. The Contractor also confirmed that such sum was sufficient and that it had the financial resources to perform the works.250 There was thus a fixed price, accompanied by a method by which that price would be increased, if the Contractor could establish an entitlement under the Contract. There was no representation to the Contractor, and there is no provision in the Contract, to the effect that the ACP would "finance" the works.251
315.
The ACP further argues that, in late 2013 and early 2014, the Contractor gradually slowed down the works until it ceased all work on the Project on 5 February 2014. The ACP was thus left with no option but to agree to further concessions, in order to save the Project and induce the Contractor to fulfill its contractual obligations.252
316.
According to the ACP, the Parties made the following agreements:

a. The Contractor agreed to deposit USD 400,000,000 into the Project Completion Account to assist in the performance and completion of the works. The ACP relinquished the Performance Bond in the same amount to facilitate such deposit;

b. The ACP agreed to make available to the Contractor an amount equivalent to the Existing Advance Payments (USD 776,408,765.09) for the payment of the works under the Contract after the Effective Date, subject to the Contractor providing security;

c. The ACP agreed to grant further temporary deferrals on the repayment of the Existing Advance Payments, as defined in the MoU. Prior to the MoU, the advances were to be repaid by deductions against sums due for the performance of the works. That mechanism was replaced by lump sum repayments on specific dates or completion events, retaining a connection to the performance of the works.253

317.
Following five months of negotiations, the Parties subsequently concluded the MoUVO which, in the ACP's view, incorporated in the Contract detailed and carefully crafted mechanisms for the repayment of the Advance Payments (explained further below). The ACP contends that there is no indication in the MoUVO that it was intended to provide a co-financing arrangement pending the final resolution of all the Contractor's claims.254
318.
Subsequently, so the ACP notes, it agreed to seven further variation orders providing financial assistance to the Contractor, including two in respect of entirely new advances. Those further VOs introduced additional terms to the Contract and (i) provided for yet further advance payments to be made and repaid in due course; and (ii) made further changes to the repayment provisions.255

B. The Repayment of the Advances

1. The Claimants’ position

a. Overview

319.
The Claimants' primary case is that the Advances are not due, determinable or payable until the disputes over the Contract price that are currently pending before different ICC tribunals are resolved (infra at X.B.1.b).
320.
The Claimants argue that on the proper interpretation of the Contract, GUPC is not required to repay the Advance Payments. It was the Parties' common intention to resolve all their disputes in international arbitration by no later than October 2018, as is clear from the negotiating history of the MoU and the MoUVO.
321.
The Claimants submit that, to achieve the "mutual primary goal" of a successful completion of the works and handover of the Canal to the ACP, the Parties had to resolve the financial problems facing the Project. The core of the co-financing agreement involved the suspension of the payment of the Advances, and the contribution by the Claimants of cash and other security packages, until the conclusion of the dispute resolution process to determine the Contract price. Thereafter, there would be a close out of the balance of payments due between the Parties. As of 2014, both Parties anticipated that they could resolve their disputes by 31 October 2018 but, so the Claimants argue, this will not happen, as the arbitrations have been delayed due to ACP’s bad faith and hostile conduct. Thanks to the Claimants’ efforts, the Project for the expansion of the Panama Canal was completed and handed over to the ACP in June 2016. The Claimants thus argue that the ACP cannot demand payment of the Advances as if they were loans independent from the disputed Contract price (as the ACP is prohibited by law from granting loans) in clear disregard of the mutually agreed economic purpose of the MoU and before liability for increased costs is determined in accordance with the dispute resolution process.
322.
Furthermore, the Claimants assert that the ACP is barred from demanding payment of the Advances under the doctrines of actos propios and/or abuse of rights. Both these doctrines are enshrined in Panamanian law, being derived from Articles 13 and 1109 of the Civil Code, pursuant to which the ACP must act in good faith towards the Claimants at all times. For the Claimants, the ACP’s demand for payment of sums in connection with the Advances would be inconsistent with the ACP’s prior conduct (actos propios), by which it agreed to suspend the repayment in order to resolve the disputes and receive the completed Project. Furthermore, such conduct by the ACP would be abusive and inflict severe harm upon the Claimants (abuse of rights).
323.
Finally, the Claimants contend that, pursuant to Article 985 of the Panamanian Civil Code, the ACP is not entitled to any performance by the Claimants because the ACP is and was at all material times in breach of its reciprocal obligations under the Contract.
324.
The Claimants’ alternative case is that no obligation to pay the Additional Advances arose on 31 December 2016 (as alleged by the ACP) and there remains no obligation to pay the Additional Advances, because it was objectively impossible within the meaning of Panamanian law to provide certain letters of credit contemplated by the Contract and because of the ACP’s refusal to accept equivalent security proffered by the Claimants (infra at X.B.1.c).

b. The Advances are not due, determinable or payable until the disputes over the Contract price have been resolved

325.
For the Claimants, the ACP cannot seek repayment of the Advances until after the disputes between the Parties are concluded. The Claimants make this submission in reliance on multiple independent legal bases:

a. Contract interpretation. The Claimants’ primary argument is that the Contract, interpreted in a systematic manner taking into consideration the Parties’ common intent, provides that the Advances are not determinable, due and/or payable before the Parties' disputes over the Contract price are resolved (infra at X.B.1.b.i).

b. Panamanian law. Under Panamanian law, GUPC's obligations to pay, if there are any, are not clear, certain, and determinable (líquida) before the Parties' disputes over the Contract price are resolved (infra at X.B.1.b.ii).

c. Actos propios and abuse of rights. Under the doctrine of actos propios, the ACP is precluded from demanding payment because it cannot act in a manner that contradicts the rights and expectations it has previously created (infra at X.B.1.b.iii). Even assuming arguendo that the ACP had a prima facie right to demand payment, the exercise of such a right would constitute an abuse of rights (infra at X.B.1.b.iii(b)).

d. Reciprocal obligations (Article 985 Panamanian Civil Code). The ACP is prohibited from demanding payment of the Advances due to its failure to perform its fundamental reciprocal undertaking according to the MoU (now embodied in Sub-Clauses 20.10 of the Contract) to facilitate the resolution of all disputes by October 2018 (infra at X.B.1.b.iii(c)).

i. The Contract and the MoU, as properly interpreted, link the payment of the Advances to the resolution of disputes

326.
The Claimants' first submission is that, on the proper interpretation of the Contract, GUPC is not required to repay the Advance Payments.256 The Parties' shared intention to suspend the payment of the Advances until the resolution of their ongoing disputes is reflected not only in the terms of the Parties' agreements, but also in extraneous evidence. In fact, the contemporaneous record of the negotiations and public statements leaves no doubt that the Parties intended that there would be a further moratorium on the payment of the Advances if the disputes over the final Contract price were not settled by October 2018.
327.
The Claimants underscore that it is well-known that there is either an objective (common law) or subjective (civil law) approach to contract interpretation. Panamanian law, the law governing the Contract and the MoU, relies on the subjective approach, in which the Parties' intent prevails over the literal meaning of the Contract. The Tribunal must therefore look beyond the written terms of the Contract and take into account the relevant negotiating history and the conduct of the Parties.257
328.
For the Claimants, the interpretation of the key contractual terms in conjunction with the negotiation history of the MoU fully supports their position that neither the Initial Advances nor the Additional Advances are determinable or due before the Parties' disputes over the Contractor's entitlements are resolved and the final Contract price is determined in the pending arbitrations.258
329.
More specifically, the Claimants note that under Sub-Clauses 14.1, the Advances are "part of the Contract Price".259 The Contract provides that the Initial Advances would be amortized by deductions from interim payments from ACP to GUPC. The Claimants explain that at the end of 2013 the Project reached a standstill due to cost overruns. The Parties thus agreed to a suspension of the repayment of the Advances until the settlement of the disputes. They also agreed to co-finance the Project, including through cash contributions by both Parties, in order to ensure that the works be completed and the Project become operational.260
330.
Thus, the Parties concluded the MoU, in which, so the Claimants contend, the ACP agreed to suspend the payment of any outstanding amount on the Advances until after resolution of the disputes regarding the Contract price, while GUPC and the Shareholders agreed to provide additional financing, as well as further security.261 The Claimants maintain that the deferral of the payment of the Advances until the resolution of the disputes was a "fundamental tenet of the deal" for them.262
331.
In this context, the Claimants point to Sub-Clause 20.10, which provides that "[t]he Employer and the Contractor agree that it is their intention that all disputes referred to ICC arbitration pursuant to Sub-Clause 20.6 [Arbitration] of the Contract shall be the subject of final award by no later than October 31, 2018". They argue that this provision sets forth the Parties' intent to resolve all disputes by a final award allocating responsibility for the cost overruns and determining the adjustments to the Contract price.263
332.
The Claimants further refer to Sub-Clause 20.9 of the Conditions of Contract, which was added after the conclusion of the MoUVO and sets forth the procedure for the payment of the so-called "Dispute Proceeds". Sub-Clause 20.9 provides that the ACP must use 50% of any Dispute Proceeds to pay the outstanding balance of the Advances and 50% to GUPC. Hence, not only was the Contract price subject to adjustments as a result of the resolution of the disputes, but part of the Dispute Proceeds were also meant to be applied to offset any Advance Payments.264
333.
Furthermore, the Parties agreed to establish a "Project Completion Account" "to utilize the Dispute Proceeds to provide financing to GUPC S.A. and then to offset the Advances".265 For the Claimants, both the provisions on the Dispute Proceeds and on the Project Completion Account incorporated into the Contract as a result of the MoU ensure the payment of the Advances in connection with the resolution of the disputes between the Parties.266 The Claimants explain that this alternative payment structure has already worked in reality, as the proceeds from the DAB’s award of USD 250 million in favor of GUPC with respect to the claims covered by Referral 11 were used to pay a portion of the Advances.267
334.
The Claimants further assert that the MoU negotiation history confirms their interpretation of the Contract linking the payment of the Advances to the resolution of the disputes. They argue that they were clear throughout the negotiations that any solution to the cash flow crisis required the suspension of payments until the Parties’ disputes had been resolved in arbitration.268
335.
In initiating the negotiations, the Claimants explain, they proposed a plan providing a "Solution for Completion of Panama Canal Third Set of Locks Project", in which they stated that "[a] balanced solution" would be that "funding will be arranged through a co-financing arrangement involving GUPC and ACP, while the ultimate liability for the additional costs is determined through international arbitration procedures".269 During the negotiations, the Claimants also made it clear that "[t]he funding would facilitate completion of the works pending the outcome of the arbitrations allocating the final responsibility for additional costs".270
336.
On 10 March 2014, however, ACP’s Jorge Quijano proposed a limitation on deferral of payment of the Advances and tried to add to the MoU a set date upon which the Advances would have to be repaid, regardless of the progress of the dispute resolution process.271 To this effect, he proposed that the following language be added to paragraph 9 of Annex A of the MoU (new language in bold):

The Employer and the Contractor will agree that it is their intention that all disputes referred to ICC Arbitration pursuant to Sub-Clause 20.6 [Arbitration] of the Contract shall be the subject of final award by no later than October 31, 2018. The Employer and the Contractor will agree to work together with each other, the DAB, any ICC tribunal and the ICC in good faith to put in place mutually agreeable timetables for all disputes so as to facilitate this goal. The Employer and the Contractor will agree that even if arbitration proceedings are not completed by such dates, the then-applicable Payment Date of the Existing Advances will not be extended as a result of the extension of any such proceedings past October 31, 2018.272

337.
When he made this proposal, Mr. Quijano insisted that the 2018 time limit could not be changed depending on the status of the arbitrations:

Our entire agreement is based on the agreement to extend the advance payment repayments dates to 2018. This has been a consistent position from the outset (actually we changed our position to help you from 2015 -physical completion - to 2018 - end of Contract). We cannot agree to state or imply that the 2018 date is changeable because of your dispute proceedings against us. I will not put anything in the MoU, but of course you can always come and talk to us in 2017 or 2018 about the situation -and we probably will be in a better mood then if you finish the job in 2015 and we are fully operational!273

338.
On behalf of GUPC, Mr. Loureda rejected this proposal in the following terms:

The date for the repayment of the Advances has been already the subject of prolonged negotiations. We have come to a compromise defining the December 2018 date based upon the fact that the Parties judged that date as a realistic date for the Arbitral Tribunal to render a definitive award so that the party ultimately liable for the costs would have effectively paid for them.

The drafting of the clause was not entitling to an automatic postponement of such a date, as it should have been, but was not also determining the opposite, as ACP is now wishing to do with this late change.

The clause is balanced and clear enough to allow an arbitral tribunal to decide in the future on what to do, should an award not have been rendered by December 2018. We cannot accept your late additional sentence, because this is going to frustrate the sense of the negotiation, and we cannot see how ACP can refuse the principle that it should be the arbitral tribunal, if and when requested to do so, to decide on the way forward, based on the extensive information on the dispute that it will have surely gathered by that date.274

339.
The Claimants insist that the ACP finally agreed that its proposed addition be left out from the final text of the MoU.275 The MoU was then transposed into the MoUVO, which included a new Sub-Clause 20.10 of the Conditions of Contract without substantial amendment:

20.10 Arbitration Procedure

The Employer and the Contractor agree that it is their intention that all disputes referred to ICC arbitration pursuant to Sub-Clause 20.6 [Arbitration] of the Contract shall be the subject of final award by no later than October 31, 2018. The Employer and the Contractor agree to work together with each other, the DAB, any ICC tribunal and the ICC in good faith to put in place mutually agreeable timetables for all disputes so as to facilitate this goal. The Employer and the Contractor agree that they will each honor and promptly give full effect to and comply with any ICC arbitral award, notwithstanding that any such Party so complying may subsequently challenge or otherwise appeal or dispute such award in any court of competent jurisdiction.276

340.
In conclusion, the Claimants maintain that the negotiations of the MoU and MoUVO confirm that the payment of the Advances was linked to the resolution of the disputes and hence the determination of liability for the cost overruns.277 In this context, the Claimants invoke Article 1133 of the Panamanian Civil Code according to which the Tribunal must take into account the conduct of the Parties, including the negotiating history, in order to ascertain the intention underlying Sub-Clause 20.10.278
341.
Contrary to the ACP’s allegations, the Claimants and their expert, Dr. Hoyos, are of the view that the presence of the "Entire Agreement" clause in the Contract does not bar resort to an interpretation relying on extraneous elements. They consider that the Entire Agreement clause "serves to select the material that would be the subject of interpretation; only the clauses inserted in the document or the external terms referenced in the document" [sic].279
342.
Finally, the Claimants argue that, "[w]hile it is strictly irrelevant to the Contract interpretation issue before the Tribunal [...], the Tribunal should note [that] ACP’s bad faith conduct resulted in substantial delays to the dispute resolution process".280 The ACP failed to make "fair determinations" on GUPC’s claims, as it was required to do under the Contract, delayed and "crippled" the DAB process in bad faith,281 and continued its bad faith conduct towards GUPC in the ICC arbitrations.282

ii. Under Panamanian law and the Contract, GUPC’s obligations to pay the Advances are not determined or determinable

343.
Furthermore, the Claimants contend that under Panamanian law, GUPC’s obligations are not determined or determinable.283
344.
The Claimants recall that the Advances were installments on the Contract price to assist GUPC with performance of the works. Under the Contract and Panamanian law, the payment obligations, if any, are not determined or "determinable" (líquidas) until the disputes over the Contract price have been resolved (and a fortiori the Advances cannot be due or payable before that date). The Claimants invoke the following provisions of the Panamanian Civil Code:

e. Article 1056, which states that where the sums owed by one party to the other are not yet ascertained or ascertainable, the debt is not due and payable ("in liquidis non fit mora").284 The Claimants’ expert, Dr. Hoyos, explains that this includes the situation where a debt - "even one subject to term (which term has arrived)" - has not been determined because it "is subject to a dispute proceeding that is yet to be concluded".285

f. Article 1515, which stipulates that while a "guarantor may guarantee future debts of an undetermined amount [...] no claims may be brought against the guarantor until the debt is liquidated".286

g. Article 1082, which provides that "[f]or compensation [i.e. set off] to proceed, it is necessary [...] that the two debts are due; [and] [t]hat they are liquid and exigible".287

h. Article 1107, according to which the ACP cannot unilaterally establish its own entitlements or the amount of a debt, without the intervention of a third party, i.e., a court or a tribunal.288

345.
Therefore, because the final Contract price is still unknown, the Claimants’ debt to the ACP - if any - will not be determinable and consequently due and payable until the disputes are resolved.289 The Claimants’ obligation to repay the Advance Payments is thus contingent on findings of liability and quantum under the Contract and the JSG, which are currently in dispute.290 For the Claimants, the Parties are presently in a "current account" relationship with respect to the final Contract price and any payments to be made on account of the Initial Advances. In such a current account relationship, the balance can only be established once all accounts between the parties are closed. Only then do any debts become "liquid" and therefore payable.291
346.
According to the Claimants, the ACP's reliance on Article 1614 of the Judicial Code, to argue that a debt is líquida when the amount is expressed in a figure or can be established through an arithmetic formula, is misconceived.292 They observe that Article 1614 is limited to specific categories of "executive titles", i.e., documents that are issued by a debtor acknowledging a debt, which is not the case here.293

iii. The ACP is barred from demanding payment of the Advances based on the doctrines of actos propios and abuse of rights and because of its own breaches of reciprocal obligations

347.
In the alternative, and without prejudice to the Claimants' primary position that the ACP "has no right to call for payment of the Advances under the MoU and the Contract (as amended thought MoUVO and the subsequent Variation Orders)",294 the Claimants contend that the ACP is barred from demanding payment of the Advances until the Parties' disputes have been resolved by virtue of three additional grounds:

(a) by operation of the doctrine of actos propios; (b) by operation of the doctrine of abuse of rights; and (c) as a result of the ACP's own breaches of the reciprocal obligations enshrined in the Contract.

(a) Actos propios

348.
The Claimants argue that under the doctrine of actos propios, as enshrined in Article 1109 of the Civil Code,295 a party is forbidden from acting in a manner that contradicts its prior conduct. For the Claimants and its expert, Dr. Hoyos, the doctrine of actos propios is part of the duty of good faith, which is a fundamental principle of Panamanian law.296 Specifically, under that doctrine, an entity, including a public entity, may not assert a claim that is inconsistent with its previous acts, if such act was (i) permitted by law; (ii) unequivocal and intended to have legal effect; and (iii) inconsistent with or in contradiction to the later claim.297
349.
In this case, so say the Claimants, the ACP agreed that (i) the payment date for the Existing Advances would be extended (upon satisfaction of certain conditions) to 31 December 2018 (paragraph 4.3 of Annex A of the MoU); (ii) the Existing Advances would be repaid through Dispute Proceeds (paragraphs 4.3 and 6 of Annex A); and (iii) the ACP intended that all disputes would be the subject of final awards by no later than 31 October 2018 and it would work with GUPC and others in good faith towards this goal (paragraph 9 of Annex A).298
350.
For the Claimants, the ACP’s claim that the Advance Payments are due is inconsistent with the latter’s prior representations to the Shareholders and previous conduct (which was permitted by law and unequivocal and intended to have legal effect) and thus prohibited by the doctrine of actos propios.299

(b) Abuse of rights

351.
In the Claimants’ submission, the doctrine of abuse of rights, which is derived from Articles 13 and 1109 of the Civil Code and general principles of Panamanian law, also bars the ACP from demanding payment of the Advances.300 Under this doctrine, a party is forbidden from abusing any rights it may have.
352.
In the present case, so the Claimants argue, even if the ACP had the prima facie right to call the guarantees provided by the Claimants - which the Claimants deny - such conduct would be abusive; it would breach Article 1109 and result in severe harm to the Claimants. The Claimants contend that the "Respondent is in possession of the highly profitable Canal, generating millions of dollars in revenue per day". If the ACP demands performance from the Claimants before the disputes over the Contract price are resolved, it "would be inflicting harm upon Claimants with the sole objective of receiving benefits in violation of Panamanian law".301 Finally, the Claimants argue that the ACP’s actions in this regard would also violate its obligations as a public body under Article 130 and 133(6) of the ACP Regulation, including the duty to collaborate with the Contractor and not create an unreasonable burden for GUPC.302

(c) ACP’s own breaches of obligations under the Contract

353.
Finally, it is the Claimants’ submission that the ACP is barred under Panamanian law from demanding payment of the Advances because it breached its reciprocal obligations under the Contract,303 with the result that the ACP is not entitled to seek payment of the Advances until its own contractual breaches are remedied.304
354.
In support, the Claimants invoke Article 985 of the Panamanian Civil Code which contains the so-called exceptio non adimpleti contractus and reads as follows:

In the case of reciprocal covenants, neither obligor shall be in arrears where the other obligor fails to comply or to remedy non-compliance with their respective obligation. Once either obligor has complied with their obligation, the other obligor shall be in arrears.305

355.
According to the Claimants and Dr. Hoyos, the following elements must be established for the exception under Article 985 to apply: "(a) the existence of reciprocal obligations; (b) non-compliance by the party against whom the exception is raised and (c) the defence must be made in good faith".306 They assert that all of these requirements are met in the present situation, as the Contract is a construction contract which, in accordance with Article 985, contains the reciprocal covenant for GUPC to perform the works and complete the Project, and for the ACP to pay for the works performed and to recognize any legitimate entitlements to additional payments and/or extensions of time.307 In the present case, while the Claimants successfully completed the Project in June 2016, the ACP has failed to resolve the claims against it expeditiously and in good faith.308
356.
In sum, it is the Claimants’ argument that the ACP breached its reciprocal obligations in particular by failing to:

a. comply with Sub-Clauses 14.1 and 14.7 of the Contract and to pay for the works performed by the GUPC;309

b. comply with Sub-Clause 14.6 and to issue Interim Payment Certificates;310

c. comply with Sub-Clause 3.5 and to make fair determinations of GUPC's entitlements to additional payments and/or extensions of time during the life of the Project.311 In this respect, the Claimants take particular issue with the ACP's statement in its Management Plan that deciding "100 percent of claims [...] in favour of the ACP" is a measure of success.312

d. comply with Sub-Clause 20.10 and to work together with GUPC in good faith to facilitate the goal of settling all disputes by 31 October 2018, or otherwise engage in good faith negotiations to extend the repayment date.313 In this respect, the Claimants argue that the ACP has "frustrated" the dispute resolution process, employing "guerrilla tactics" to delay the DAB and ICC arbitration processes.314

357.
Therefore, so the Claimants maintain, due to the ACP's material and bad faith breaches, the ACP is not entitled to the repayment of Advances under Panamanian law until all the breaches have been remedied.315

c. In the alternative, no obligation to pay the Additional Advances arose on 31 December 2016

358.
In the alternative to the Claimants' primary case, whereby neither the Initial Advances nor the Additional Advances are determinable, due and/or payable until the Parties' ongoing disputes over the Contract price have been resolved, the Claimants argue that no obligation to repay the Additional Advances arose on 31 December 2016 contrary to the ACP's allegations.316 To substantiate this position, they contend that (i) it was impossible within the meaning of Article 1001 of the Panamanian Civil Code for GUPC to provide certain letters of credit issued by prime rate Panamanian local banks in November 2016 (as provided in the Contract); (ii) the ACP is and was at all material times fully secured for the amounts of the Additional Advances by multiple layers of corporate guarantees (governed by both Panamanian and English law) and it refused the Claimants' offer to provide substitute letters of credit issued by European banks, with the result that it must be precluded from demanding payment under Article 1015 and 1070 of the Panamanian Civil Code; and (iii) the ACP’s refusal, in particular, of substitute letters of credit from European banks is in breach of Panamanian law and of ACP’s statutory duties, and further constitutes an abuse of rights.
359.
In these circumstances, so the Claimants argue, the relevant provisions of the Contract should be construed as if the additional letters of credit had been provided, with the result that the Additional Advances will not become payable until such date as the Tribunal may determine, a date that is not earlier than (i) 1 June 2018 for the APSS and APLG and (ii) 31 December 2018 for the APSE and VO149S.

i. Impossibility within the meaning of Article 1001 of the Panamanian Civil Code

360.
The Claimants explain that pursuant to the Contract, as amended by the MoU and the MoUVO, the Contractor was required to provide the Additional LOCs (as defined above) in order to extend the moratorium in relation to the Other Existing Advances (including the APSS and APLG) until 31 December 2018.317 The Additional LOCs were required to be (i) issued by an "Acceptable Financial Institution" (as defined in the Contract)318 in the form set out in Appendix FF to the MoUVO; (ii) issued at the latest 45 days prior to 1 January 2016, i.e. by 16 November 2015 (later extended by agreement of the Parties to 16 November 2016); and (iii) with expiry dates of 31 December 2018.319 In essence, an Acceptable Financial Institution was required to hold an operating license in Panama and have a prime credit rating.320
361.
The Claimants explain that they approached several qualifying banks, which were unable or unwilling to provide the Additional LOCs,321 despite the Shareholders’ willingness to provide 100% counter-guarantees from European banks satisfying the rating requirements contained in the Contract.322 They contend that the ACP contributed to the difficulties that GUPC faced in procuring the Additional LOCs, "through a hostile and sustained campaign in local Panamanian media against GUPC S.A. and the Shareholders".323
362.
In these circumstances, GUPC approached the ACP on 11 November 2015 requesting that (i) the Contract be varied to allow an extension of time to provide the Additional LOCs; and/or (ii) it be permitted to provide English law joint and several guarantees in substitution for the Additional LOCs.324 The ACP ultimately agreed to a one-year extension of the time to provide the Additional LOCs in return for additional English Law Guarantees from the Shareholders. The Contract was thus varied in February 2016 by VO 150 and VO 161 to implement this agreement.325
363.
However, despite the Claimants’ continued discussions with the banks, the relevant Panamanian banks remained unwilling or unable to front the Additional LOCs.326 Thus, in October 2016, GUPC requested that the Additional LOCs requirement be removed from the Contract considering that the ACP had received the English Law Guarantees pursuant to VOs 149, 150 and 161.327 However, so the Claimants argue, the ACP refused to vary the conditions and further refused GUPC’s offer that the Shareholders provide letters of credit from European banks with the required financial ratings.328
364.
Therefore, the Claimants maintain that the requirement to provide the Additional LOCs was impossible to fulfil within the meaning of Article 1001 of the Panamanian Civil Code.329 For the Claimants, according to Article 1001 of the Civil Code, a party cannot be compelled to comply with an obligation that is either materially or morally impossible to perform. As Dr. Hoyos puts it, the impossibility must be "objective, absolute, permanent and not attributable to an accidental condition of GUPC S.A. (for instance, its financial condition)".330
365.
Here, the Claimants submit, it was objectively impossible for them to obtain the Additional LOCs because (a) the Acceptable Financial Institutions in Panama declined to accept the counter-guarantees offered by international banks, and (b) the impossibility of obtaining the Additional LOCs related to the strict requirements in the Contract - and the ACP's refusal to relax those strict requirements - rather than to GUPC's financial condition.331 In light of this impossibility, the Claimants assert that the ACP was under an obligation to accept equivalent performance (in this case, equivalent security) from GUPC.332
366.
In conclusion, in circumstances where GUPC had effectively secured the payment deferral through meeting other performance milestones, the moratorium was effectively - or should have been treated as - extended until such date as the Tribunal may determine (not earlier than (i) 31 December 2018 for the APSE and VO149S; and (ii) 1 June 2018 for the APSS and APLG).333

ii. The ACP is barred from demanding payment pursuant to Article 1015 of the Civil Code as it has and had at all times adequate security for the Additional Advances

367.
The Claimants also put forward that the ACP's unwillingness to consider alternatives to the Additional LOCs was unreasonable and unnecessary, because the Additional Advances were at all times secured by, among other instruments, the English Law Guarantees, the JSG, the APJSG, as well as counter-backed by a series of parent company guarantees.334
368.
In support, the Claimants invoke paragraph 3 of Article 1015 of the Panamanian Civil Code, according to which a debtor loses the benefit of a repayment term and a creditor can compel the debtor to comply with its payment obligations ahead of time "[w]hen by its own acts, the guarantees have diminished after established, and when by chance they disappear, unless they are immediately replaced by other new and equally safe guarantees".335
369.
The Claimants submit that guarantees "are, both inherently and as a matter of Panamanian law, fungible".336 Their proposal to substitute the Additional LOCs (which required Panamanian fronting) with alternative security, such as the European LOCs was commercially reasonable and would have provided more than adequate security to the ACP in the circumstances.337 For the Claimants, the key consideration for paragraph 3 of Article 1015 is not whether GUPC provided technically compliant letters of credit, but whether equivalent guarantees were proffered.338
370.
Under Panamanian law, in the submission of the Claimants, where the parties have knowledge of circumstances of impossibility, they are under an obligation to adapt the contract pursuant to Articles 1015 and 1070 of the Civil Code.339 Such adaptations are further permitted by Articles 117 and 119 of the ACP’s Regulation, which provide for advance payments to be made (a fundamental requirement) and adequately secured (a flexible requirement, i.e., by way of bank guarantee or surety bond).340
371.
Therefore, by refusing the European LOCs and/or the English Law Guarantees, the ACP acted in breach of its obligations arising from Article 1015 and 1070 of the Civil Code. Accordingly, in the Claimants’ view, the APSE, APLG, APSS and APVO149S are not due until the Tribunal so determines.341

iii. Abuse of rights

372.
Finally, the Claimants argue that the ACP’s conduct constitutes an abuse of rights precluding demands for payment of the Additional Advances for the following reasons.342
373.
First, the Claimants consider that the ACP acted contrary to the principle of good faith embodied in Article 1109 of the Civil Code when it refused the LOCs from the European banks. Indeed, the ACP asserted without proper basis that it was unable to entertain any variation to the Contract that interfered with its right to collect amounts allegedly due, when it had in fact consented to retrospective Contract amendments in the past.343
374.
Second, the Claimants submit that the ACP’s rejection of equivalent security is abusive "in light of the impossibility GUPC S.A. faced in obtaining the LOCs".344
375.
Third, while the ACP currently benefits from the completed Canal, it has not, in the Claimants’ view, paid the (disputed) Contract price. Because "the Contract Price dispute cannot be resolved pending resolution of the underlying disputes in the ongoing arbitrations", it is "contrary to the good faith requirement in Article 1109 of the Civil Code for ACP to claim and demand payment of the Additional Advances at this stage".345
376.
Fourth and last, the Claimants maintain that the ACP’s conduct is abusive under various terms of the latter’s Regulation.346 They rely in particular on Article 130 of the ACP’s Regulation, which would require the ACP to collaborate in good faith with GUPC for the duration of the Contract, and on Article 133(6), which stipulates that the ACP should not make GUPC’s compliance with the Contract unreasonably burdensome.347
377.
For the foregoing reasons, the Claimants submit that the doctrine of abuse of rights precludes the ACP from claiming that the Additional Advances are due from GUPC.

2. The Respondent’s position

a. Overview

378.
In sum, the Respondent maintains that (i) the Initial Advance Payments fell due for repayment on 1 June 2018 and (ii) the Additional Advance Payments fell due for repayment on 31 December 2016.
379.
The Respondent submits that the Contract contains lengthy and comprehensive repayment provisions with express final dates for repayment in respect of each one of the Advance Payments, with specific mechanisms for the deferral of such dates, and for the acceleration of repayment due to unexcused delays in work performance. In the Respondent's view, there is not a single clause which links the deferral of repayment of the Advance Payments and the final resolution of the disputes. The express terms of the MoUVO (which superseded the MoU and introduced the Parties' final agreement into the Contract) make clear that the MoU and MoUVO were designed solely to bring about the completion of the works. Therefore, the timing of the obligations to repay the Advance Payments was directly linked not to the resolution of the disputes, but to the Contractor's performance and completion of the works.
380.
According to the Respondent, linking the timing of the repayment obligations to the resolution of the disputes would make no commercial sense, because it would allow the Contractor to indefinitely delay repayment raising new claims or delaying existing ones. In fact, this is precisely what happened with the Claimants deliberately delaying the pursuit of their claims in arbitration as part of a strategy to prevent the ACP from recovering the Advance Payments.
381.
On the Respondent's case, the Claimants have commenced this arbitration as a de facto appeal of the Gunter Tribunal's PO1 against them. The Gunter Tribunal considered the same arguments as those advanced here and unequivocally supported the ACP's position, rejected the Claimants' mischaracterization of the facts and of Panamanian law, and recognized the clear repayment provisions of the Contract that the Parties had freely agreed.348
382.
Furthermore, the Respondent maintains that the Claimants’ Panamanian law arguments are misconceived. In particular, the Respondent argues that based on the proper interpretation of the Contract the amount and the due date are known so the amount is fully líquida. Similarly, contrary to the Claimants’ arguments, the doctrines of actos propios or abuse of rights do not prevent the ACP from seeking the monies due. The Respondent explains that, if the proper interpretation of the Contract is that the monies are in fact due, the Claimants bear a heavy burden to show that the ACP is claiming those monies with the sole purpose of harming them (which is untrue) or that the ACP unequivocally represented that it would not claim the monies (which is similarly untrue). Finally, with regard to the argument that the repayment obligation is reciprocal, the ACP opposes that the provisions requiring repayment of the Advance Payments are not connected to the resolution of the disputes and that the obligations to pay for the works and to recognize any legitimate entitlements to additional payment and/or extensions of time are not reciprocal to the repayment of the Advances, and in any event have been complied with by the ACP.

b. The Advances are due, determinable and payable

383.
The ACP asserts that when interpreting a contract under Panamanian law the literal meaning of the contract prevails over the search for the parties’ subjective intentions, unless the contract is obscure or ambiguous (infra at X.B.2.b.i). In this case, the terms of the Contract are clear and set forth unambiguous repayment dates for each of the Advances (infra at X.B.2.b.iii). It is thus impermissible to consider the pre-contractual negotiations, which in any event confirm the ACP’s position (infra at X.B.2.b.iii).

i. Principles of contract interpretation under Panamanian law

384.
For the ACP, under Panamanian law, the cornerstone principle is pacta sunt servanda349 and unambiguous contract terms must be given full effect.350 In support, the Respondent invokes Article 1132 of the Civil Code, which provides as follows:

(1) If the terms of the contract are clear and leave no doubt as to the intent of the contracting parties, the literal sense will prevail.

(2) If the words appear to be contrary to the evident intention of the parties the intention shall prevail over the words.

385.
According to the Respondent, the main rule of interpretation contained in the first paragraph of Article 1132 of the Civil Code means that clear terms must be given effect in their literal meaning (in claris interpretatio non fit).351 The ACP goes on to state that the second rule of Article 1132 of the Civil Code applies only when the contractual clause is objectively unclear or ambiguous.352 Furthermore, in order to disregard the terms of the contract, it must be proven that the intention of the parties to the contrary is "evident", as stated in the second paragraph of Article 1132 itself.353 Additionally, clarity (or obscurity) within the meaning of Article 1132 is, in the ACP’s view, an objective notion; it cannot be left to the subjective appreciation of one party.354
386.
Moreover, the ACP submits that the rules of interpretation - either contained in the law or the Contract - are mandatory for the judge, in the sense that they are not mere recommendations. They do not, however, limit the freedom of the parties to agree on certain rules, such as entire agreement clauses, and exclude others by virtue of the general principle of party autonomy.355 The only limitation is that the Parties cannot exclude the intention of the parties as a rule of interpretation in circumstances where the terms of the contract are objectively obscure or ambiguous.356
387.
In this case, the Contract contains an entire agreement clause (Sub-Clause 1.16), which prohibits the Claimants’ approach centered on the pre-contractual negotiations.357 Under Sub-Clause 1.16, "[t]he Contract and the documents incorporated herein by reference constitute the entire agreement" and they "supersede all prior negotiations, commitments, representations, communications and agreements".358 Under the same provision, the Parties also acknowledge that the Contract "shall be interpreted and construed without reference to any prior negotiations or communications [...]".359
388.