Grupo Unidos por el Canal, S.A.
Building 22B, Brujas Road
Cocoli
Republic of Panama
Ms. Carolyn B. Lamm
Mr. Hansel Pham
Mr. Matthew Drossos
White & Case LLP
701 Thirteenth Street, N. W.
Washington, D.C., 20005
U.S.A.
Tel.: +1 202 626 36 00
Fax: +1 202 639 93 55
Emails: clamm@whitecase.com
hpham@whitecase.com
mdrossos@whitecase.com
Mr. Phillip Capper
Mr. Nicolas Bouchardie
Ms. Angélica André
Ms. Kirsten Odynski
White & Case LLP
19, Place Vendôme
75001 Paris
France
Tel.: +33 1 55 04 15 15
Fax: +33 1 55 04 15 16
Emails: pcapper@whitecase.com
nbouchardie@whitecase.com
aandre@whitecase.com
kirsten.odynski@whitecase.com
Ms. Ana Maria Legendre
White & Case LLP
Paseo de la Castellana, 7
28046 Madrid
Spain
Tel.: +34 91 787 6372
Fax: +34 91 787 6399
Emails: alegendre@whitecase.com
Mr. Daniel Garton
Mr. Paul Brumpton
Mr. James Holden
White & Case LLP
5 Old Broad Street
London EC2N 1DW
United Kingdom
Tel.: +44 20 7532 1000
Fax: +44 20 7532 1001
Emails: dgarton@whitecase.com
pbrumpton@whitecase.com
james.holden@whitecase.com
Prof. Antonio Crivellaro
Prof. Andrea Carlevaris
Mr. Giovanni Minuto
Bonelli Erede Studio Legale
Via Michele Barozzi, 1 20122 Milan
Italy
Tel.: +39 02 771 131
Fax: +39 02 771 132 60
Email: antonio.crivellaro@belex.com
andrea.carlevaris@belex.com
giovanni.minuto@belex.com
Mr. Richard M. Preston
Mr. Jeffrey M. Hummel
Seyfarth Shaw LLP
975 F Street, N.W.
Washington, D.C., 20004
U.S.A.
Tel.: +1 202 463 24 00
Fax: +1 202 828 53 93
Emails: rpreston@seyfarth.com
jhummel@seyfarth.com
Ms. Monica Crespo
Mr. Jorge F. Lee
Mr Anibal Galindo
Mr Eduardo Gomez
Aleman, Cordero, Galindo & Lee
2do piso, Humboldt Tower
Calle 53 Este, Marbella
Panama City
Panama
Tel.: +(507) 269-2620
Fax: +(507) 263-5895
Emails: mcrespo@alcogal.com
jfl@alcogal.com
agalindo@alcogal.com
egomez@alcogal.com
Mr. Elliott Geisinger
Mr. Christopher Boog Schellenberg Wittmer Ltd.
15bis, rue des Alpes, P.O. Box 2088
1211 Geneva 1
Switzerland
Tel.: +41 22 707 80 00
Emails: elliott.geisinger@swlegal.ch
Christopher.boog@swlegal.ch
Vinson & Elkins RLLP
City Point, Level 33
One Ropemaker Street
London EC2Y 9UE
United Kingdom
Attention:
Mr. Nick Henchie
Tel.: +44 207 065 60 87
Email: nhenchie@velaw.com
Mr. James Loftis
Tel.: +1 713 758 10 24
Email: jloftis@velaw.com
Mr. Scott Stiegler
Tel.: +44 207 065 60 17
Email: sstiegler@velaw.com
Mr. Peter Danysh
Tel.: +1 713 758 20 60
Email: pdanysh@velaw.com
Ms. Ciara Ros
Tel.: +44.20.7065.6082
Email: cros@velaw.com
Ms. Georgina Barlow
Tel.: +44 207 065 60 52
Email: gbarlow@velaw.com
Ms. Susanna Fidoe
Tel.: +44 207 065 60 00
Email: sfidoe@velaw.com
Mr. Charles Aitchison
Tel.: + 44 207 065 60 01
Email: caitchison@velaw.com
Mr. Ben Grunberger-Kirsh
Tel.: + 44 207 065 60 00
Email: bgrunberger-kirsh@velaw.com
Ms. Stephanie Archer
Tel.: +44 207 065 60 08
sarcher@velaw.com
Ms. Delphine Troquet
Email: dtroquet@velaw.com
Ms. Maria Fernandez Sanchez
Email: mfernandez@velaw.com
Mayer Brown International LLP
201 Bishopsgate
London EC2M 3AF
United Kingdom
Attention:
Mr. Raid Abu-Manneh
Tel.: +44 203 130 37 73
Email: rabu-manneh@mayerbrown.com
Mr. Kwadwo Sarkodie
Tel.: +44 20 3130 33 35
Email: ksarkodie@mayerbrown.com
ACP Section for Legal Advice on Contracts, Canal Expansion Program Edificio
739, Corozal Oeste,
Panama,
Republic of Panama
Attention:
Mr. Carlos Arrue Montenegro
Tel.: +507 276 21 75
Email: caarrue@pancanal.com
Ms. Karla Arias
Tel.: +507 276 12 52
Email: karias@pancanal.com
Mr. Manus McMullan QC
Mr. Christopher Lewis QC
Mr. Peter Land
Atkin Chambers
Gray's Inn
London WC1R 5AT
United Kingdom
Tel.: +44 207 404 01 02
Email: mmcmullan@atkinchambers.com
clewis@atkinchambers.com
pland@atkinschambers.com
Mr. Andrés Jana
Bofill Mir & Alvarez Jana
Av. Andrés Bello 2711 - Piso 8
7550611 Las Condes
Santiago
Chile
Tel.: +56 227 577 616
Email: ajana@bmaj.cl
Dr. Claus von Wobeser
Von Wobeser y Sierra, S.C.
Paseo de los Tamarindos 60, 4th floor
Bosques de las Lomas, Cuajimalpa
05120 Mexico City
Mexico
Tel.: +52(55) 5258 1000
Fax: +52 (55) 5258 1098
Email: cvonwobeser@vwys.com.mx
Dr. Robert Gaitskell QC
Keating Chambers
15 Essex Street
London WC2R 3AA
United Kingdom
Tel.: +44 20 75 44 2600
Fax: +44 20 75 44 2700
Email: rgaitskell@keatingchambers.com
Mr. Pierre-Yves Gunter (President)
Bär & Karrer
12, quai de la Poste
1204 Geneva
Switzerland
Tel.: +41 58 261 57 00
Fax: +41 58 261 57 01
E-mail: pierre-yves.gunter@baerkarrer.ch
Mr. Juan Pablo Argentato (Counsel)
Ms. Amanda Jimenez Pintón (Deputy Counsel)
ICC International Court of Arbitration
33-43 avenue du Président Wilson
75116 Paris
France
Tel.: +33 1 49 53 30 28
Fax: +33 1 49 53 57 79
E-mail: ica1@iccwbo.org
A. With respect to the First Claimants' Claims relating to Concrete Aggregate Production
1. Unanimously, fully dismisses the First Claimant's claims, including alternative claims, relating to Concrete Aggregate Production.
B. With respect to the First Claimant's Claims relating to the Foundation Conditions
1. Aguadulce Fault Zone ("AFZ" - Claim 50)
2. Unanimously, concludes that the First Claimant is entitled to compensation by the Respondent for its losses as determined in Section G below.
2. Lock Head 1 Fault Zone (Claim 57)
3. Unanimously, concludes the First Claimant is entitled to compensation by the Respondent for its losses as determined in Section G below;
3. Inlet Wing Wall Fault Zone (Claim 47(ii))
4. Unanimously, dismisses the First Claimant's claims relating to the Inlet Wing Wall Fault Zone.
4. The Basalt Reach of the PLE (Claim 47(i))
5. With respect to the sheared and fractured basalt, unanimously, concludes that the First Claimant is entitled to compensation by the Respondent for its losses as determined in Section G below;
6. Unanimously, dismisses the First Claimant's claims relating to "laminations" or "horizontal planes of weakness" encountered by the First Claimant in the columnar basalt;
7. Unanimously, dismisses the First Claimant's claim based on the presence of smectite in the joint in-fill.
5. Alternative Claim of the First Claimant based on Sub-Clause 4.10 of the Conditions of Contract
8. Unanimously, dismisses the First Claimant’s claim based on Sub-Clause 4.10 of the Conditions of Contract.
6. Alternative Claim of the First Claimant based on the Respondent's alleged breaches of its duties under Panamanian law
9. Unanimously, dismisses the First Claimant's alternative claim based on alleged breaches by the Respondent of its duties under Panamanian law.
C. With respect to the First Claimant's claims relating to the Concrete Mix Design
10. Unanimously, concludes that to the extent that the First Claimant's Concrete Mix Design claims relate to the allegedly improper management of the design submittal process, the claims were property notified to the Respondent;
11. Unanimously, concludes that the First Claimant's claim for an Extension of Time and/or costs based on an alleged Variation on 16 February 2011 and/or on 21 February 2011 is time-barred for lack of proper notification;
12. Unanimously, concludes that the First Claimant's claims relating to an alleged Variation concerning exposure conditions in December 2010 and an alleged Variation to use silica fume in 2011 are time-barred for lack of proper notification;
13. Unanimously, dismisses the First Claimant's claims, including alternative claims, relating to Concrete Mix Design.
D. With respect to the First Claimant's Claim relating to On-Site Laboratories
14. Unanimously, concludes that the Respondent's instruction requiring the First Claimant to sub-contract the on-Site laboratories work to third-party external testing agencies was a Variation within the meaning of Sub-Clause 1.1.6.43 of the Conditions of Contract;
15. Consequently and unanimously, concludes that the First Claimant is entitled to compensation by the Respondent for its Cost Plus Reasonable Profit as determined in Section G below.
E. With respect to the First Claimant's Claim for an Extension of Time
16. Unanimously, concludes that the First Claimant is not entitled to an Extension of Time under Sub-Clause 8.4 of the Conditions of Contract on the basis of a delay to the beginning of Structural Marine Concrete placement.
F. With respect to the Respondent's Claim for Delay Damages
17. Unanimously, dismisses the Respondent's claim for delay damages without prejudice to the merits of the claim and without prejudice to the position and decisions of the same panel to be made in the Parties' second ICC arbitration (ICC Arbitration Case No. 22466/ASM/JPA (C-22967/JPA)).
G. With respect to the First Claimant's Claim for Damages
1. Foundation Conditions
a. Basalt Reach of the PLE (Claim 47(i))
18. Unanimously, concludes that the First Claimant is entitled to reimbursement by the Respondent of (i) the First Claimant's direct costs associated with the portion of the additional lean concrete and additional excavation in the Basalt Reach of the PLE where it encountered unforeseeable shear zones, (ii) ITBMS on said direct costs and (iii) financing costs on said direct costs, and orders the First Claimant and the Respondent to make the calculations of such amounts on the basis of the parameters identified in paragraphs 2032 to 2050 of this Partial Award;
19. Unanimously, rules that if the First Claimant and the Respondent fail to reach an agreement on the calculations referred to in section 18 above, they shall revert to the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award for a determination of such calculations;
20. Unanimously, rules that if the First Claimant and the Respondent reach an agreement on the calculations referred to in section 18 above, they shall inform the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award and provide the Arbitral Tribunal with the content of their agreement and determination for incorporation in the final award;
21. Unanimously, concludes that, in accordance with Sub-Clause 4.12.4(b) of the Conditions of Contract, the First Claimant is not entitled to profit on its Costs incurred in relation to the Unforeseeable physical conditions encountered in the Basalt Reach of the PLE.
b. Aguadulce Fault Zone ("AFZ" - Claim 50)
22. Unanimously, concludes that the First Claimant is entitled to reimbursement by the Respondent of USD 3,230,676 as direct costs and as calculated in the table contained in paragraph 2059 above;
23. Unanimously, concludes that the First Claimant is entitled to reimbursement by the Respondent of (i) the First Claimant's direct costs of additional lean concrete and additional excavation that were required due to unforeseeable physical conditions in the Aguadulce Fault Zone, (ii) ITBMS on said direct costs and (iii) financing costs on said direct costs, and orders the First Claimant and the Respondent to make the calculations of such amount on the basis of the parameters identified in paragraphs 2051 to 2061 of this Partial Award;
24. Unanimously, rules that if the First Claimant and the Respondent fail to reach an agreement on the calculations referred to in section 23 above, they shall revert to the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award for a determination of such calculations;
25. Unanimously, rules that if the First Claimant and the Respondent reach an agreement on the calculations referred to in section 23 above, they shall inform the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award and provide the Arbitral Tribunal with the content of their agreement and determination for incorporation in the final award;
26. Unanimously, concludes that, in accordance with Sub-Clause 4.12.4(b) of the Conditions of Contract, the First Claimant is not entitled to profit on its Costs incurred in relation to the Unforeseeable physical conditions encountered in the Aguadulce Fault Zone.
c. Lock Head 1 Fault (Claim 57)
27. Unanimously, concludes that the First Claimant is entitled to reimbursement by the Respondent of (i) the First Claimant's direct costs of additional lean concrete and additional excavation that were required due to the presence of the Lock Head 1 Fault, (ii) ITBMS on said direct costs and (iii) financing costs on said direct costs, and orders the First Claimant and the Respondent to make the calculation of such amounts on the basis of the parameters identified in paragraphs 2062 to 2067 of this Partial Award;
28. Unanimously, concludes that the First Claimant is entitled to the reimbursement by the Respondent of its direct costs of USD 301,491 for the additional geological investigation and additional design work;
29. Unanimously and without prejudice to its majority/minority position on the merits, rules that if the First Claimant and the Respondent fail to reach an agreement on the calculations referred to in section 27 above, they shall revert to the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award for a determination of such calculations;
30. Unanimously, rules that if the First Claimant and the Respondent reach an agreement on the calculations referred to in section 27 above, they shall inform the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award and provide the Arbitral Tribunal with the content of their agreement and determination for incorporation in the final award;
31. Unanimously, concludes that, in accordance with Sub-Clause 4.12.4(b) of the Conditions o f Contract, the First Claimant is not entitled to profit on its Costs incurred in relation to the Unforeseeable physical conditions encountered at Lock Head 1.
d. Inlet Wing Wall Fault Zone (Claim 47(ii))
32. Unanimously, dismisses the First Claimant's claim for damages since the claim has been dismissed on liability.
e. Overheads on direct costs (Claims 47(i), 50 and 57)
33. Unanimously, concludes that the First Claimant is entitled to payment by the Respondent of 4.9% of its direct costs incurred in relation to Claim 47(i), 50 and 57 for head office overheads;
34. Unanimously, invites the First Claimant and the Respondent to make the calculations of the amount referred to in section 33 above;
35. Unanimously, concludes that the First Claimant is entitled to payment by the Respondent of a 10% uplift on its direct costs for its additional site office overheads in relation to claims 47(i), 50 and 57;
36. Unanimously, invites the First Claimant and the Respondent to make the calculations of the amount referred to in section 35 above;
37. Unanimously, rules that if the First Claimant and the Respondent fail to reach an agreement on the calculations referred to in sections 33 and 35 above, they shall revert to the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award for a determination of such calculations;
38. Unanimously, rules that if the First Claimant and the Respondent reach an agreement on the calculations referred to in sections 33 and 35 above, they shall inform the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award and provide the Arbitral Tribunal with the content of their agreement and determination for incorporation in the final award.
2. On-Site Laboratories
39. Unanimously, concludes that the First Claimant is entitled to payment by the Respondent of the following compensation as a result of the On-Site Laboratories Variation:
i. USD 14,901,319 (namely USD 14,916,235 (direct costs) - USD 14,916 (0.1% decrease for site office overheads)
ii. USD 730,895 (4.9% for head office overheads)
iii. USD 745,812 (5% for ITBMS)
iv. USD 819,647.15 (5% profit on (i), namely USD 745,811.80, on (ii), namely USD 36,544.75, and on (iii), namely USD 37,290.60).
TOTAL: USD 17,197,673.20
40. Unanimously, concludes that the First Claimant is further entitled to reimbursement by the Respondent of its financing charges on the above cost items (i), (ii), (iii), and (iv) to be calculated by the First Claimant and the Respondent in accordance with the Arbitral Tribunal's instructions set out in paragraphs 2072 to 2087 of this Partial Award;
41. Unanimously and without prejudice to its majority/minority position on the merits, rules that if the First Claimant and the Respondent fail to reach an agreement on the calculations referred to in section 40 above, they shall revert to the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award for a determination of such calculations;
42. Unanimously, rules that if the First Claimant and the Respondent reach an agreement on the calculations referred to in section 40 above, they shall inform the Arbitral Tribunal at the latest within 30 (thirty) business days from the notification of this Partial Award and provide the Arbitral Tribunal with the content of their agreement and determination for incorporation in the final award.
H. With respect to the Respondent's Counterclaims
1. The Respondent's Counterclaim for the repayment of the amounts awarded by the DAB
43. Unanimously, concludes that the Respondent is entitled to reimbursement by the First Claimant and jointly and severally by the Second to Fourth Claimants of the overpayment made, consisting of the difference between the amounts due to the First Claimant as a result of the Foundation Conditions and On-Site Laboratories claims (once fully determined) and the amount of USD 265,299,500 already paid by the Respondent following the DAB decisions.
2. The Respondent's Counterclaim for Interest
44. Unanimously, dismisses the Respondent’s counterclaim for pre-award interest on the amounts overpaid pursuant to the DAB's decisions;
45. Unanimously, dismisses the Respondent's counterclaim for interest on delay damages without prejudice to the merits of the claim and without prejudice to the position and decisions of the same panel to be made in the Parties' second ICC arbitration (ICC Arbitration Case No. 22466/ASM/JPA (C-22967/JPA)).
I. With respect to the Respondent's Request for Declaratory Relief
46. Unanimously, dismisses the Respondent's Request for Declaratory Relief that the Second to Fourth Claimants pay by way of an indemnity in accordance with the JSG and/or the GAA all losses, damages, costs and expenses, which the ACP shall incur in the enforcement of this any Award made in ACP's favour.
J. With respect to the Second to Fourth Claimants' Claim for Damages
47. Unanimously, dismisses the Second to Fourth Claimants' claim for damages.
K. With respect to the Parties' Cost Claims
48. Unanimously, decides that the Parties' Cost Claims will be determined in the final award.
L. WITH RESPECT TO ANY OTHER CLAIM OR COUNTERCLAIM OR REQUEST MADE BY ANY OF THE PARTIES
49. Unanimously, dismisses any other claim or counterclaim or request made by any of the Parties, with the reservation of the issues to be decided in the final award.1
The Parties have made the following agreements:
1. Claim 47 paragraph 20 of Section XIX of the Partial Award: the parties have agreed a total calculation (inclusive of site overhead, head office overhead and ITBMS) of $624,269;
2. Claim 50 paragraph 25 of Section XIX of the Partial Award: the parties have agreed a total calculation (inclusive of site overhead, head office overhead and ITBMS and the other direct costs of $3,230,676 already determined as per paragraph 22 of Section XIX of the Partial Award) of $6,818,645;
3. Labour Escalation Credit for Claim 47 paragraph 2021 of the Partial A ward: the parties have agreed a credit in the amount of $1,513; and
4. Financing paragraphs 18, 23, 27 and 40 of Section XIX of the Partial Award: the parties have agreed the methodology for the finance calculation. However, the final calculation is dependent on the determined costs of Claims 47, 50 and 57 and the Laboratories claim.
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.2
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 [3]. 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.4
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 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 Works5
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. §§ I et seq. except as modified herein or by the Rules6
Head of Claim | Sum | Comment |
Foundation Conditions Claims Claim 47 | $624,269.00 | Agreed between the Parties pursuant to paragraphs 20 and 35 of Section XIX of the Partial Award. |
Claim 50 | $6,818,645.00 | Agreed between the Parties pursuant to paragraph 25 and 38 of Section XIX of the Partial Award and inclusive of the sum determined at paragraph 22 of Section XIX of the Partial Award. |
Claim 57 | $794,468.00 | Agreed between the Parties pursuant to paragraph 30 and 38 of the Partial Award and inclusive of the sun determined at paragraph 28 of Section XIX of the Partial Award. |
Total | $8,237,382.00 | |
On-site Laboratories | $17,197,673.20 | See paragraph 39 of Section XIX of the Partial Award. |
Concrete Aggregate Production | so.oo | See paragraph 1 of Section XIX of the Partial Award. |
Concrete Mix Design and Delay | $0.00 | See paragraphs 10-17 of Section XIX of the Partial Award. |
Labour Escalation | $1,513.00 | Agreed between the Parties pursuant to paragraph 2021 of the Partial Award. |
Financing Costs | $1,405,336.00 | Agreed between the Parties pursuant to paragraphs 20, 25, 30 and 42 of the Partial Award. |
Total | $26,838,878.20 | |
Deduct from Reimbursement for DAB Decisions | $265,299,500.00 | See paragraph 43 of Section XIX of the Partial Award. |
TOTAL OWING TO ACP | $238,460,621.80 |
If the obligation consists in the payment of a sum of money and the debtor defaults, the compensation for damages, unless otherwise agreed, shall entail payment of the agreed interest and, in the absence of agreement, the legal interest.
As long as no other is fixed by law, it will be deemed legal the interest of six percent per year.17
If, following any payment by the Employer of any Dispute Proceeds in accordance with this Sub-Clause 20.9:
(i) a decision by the DAB pursuant to Sub-Clause 20.4 [Obtaining a Dispute Adjudication Board's Decision]; and/or
(ii) an award rendered by the ICC in respect of arbitration proceedings pursuant to Sub-Clause 20.6 [Arbitration],
overturns in whole or in part any determination, agreement or decision which formed the basis of the original payment by the Employer of such Dispute Proceeds such that sums are due and owing from the Contractor to the Employer, then the Contractor shall immediately repay to the Employer the full amount of such sums so decided or awarded.18 (Emphasis added).
in the event of any Award, the Guarantors agree jointly and severally that, notwithstanding any right (howsoever arising) to subsequently challenge or otherwise appeal or dispute any such Award, or to resist or dispute enforcement thereof, and regardless of whether the Guarantors, or any of them, are or were parties to the arbitral proceedings which resulted in the Award, they will immediately:
(a) pay on first demand any sum ordered in any Award in favour of the Employer including any and all, losses, costs (including legal costs), damages, interest, fees and expenses without any deduction, withholding, set-off or counterclaim: and
(b) give full effect, or cause the Contractor to give full effect, to the terms of any Award.21
CAP | FC | CMD/Delay | OSL | Claimants 2-4 | |
Total (USD)Total (EUR)Total (CHF) | USD 22,127,322.10 EUR 2,220,185.78 CHF 431,182.52 | USD 15,304,101.76 EUR 1,624,828.70 CHF 315,558.16 | USD 16,003,467.97 EUR 1.364.359.97 CHF 264.972.50 | USD 1,216,821.70 EUR 62,016.36 CHF 12,044.20 | USD 8,544,747.28 EUR 930.245.44 CHF 180,663.07 |
EUR | CHF | USD | ||
White & Case LLP | Fees Expenses | 40,728.384 1,783,166 | ||
Schellenberg Wittmer | Fees Expenses | 1,100,874 103,547 | ||
Bonelli Erede Studio Legale | Fees Expenses | 1,331,235 23,993 | ||
Seyfarth Shaw LLP | Fees Expenses | 4,586,682 158,103 | ||
Aleman, Cordero, Galindo & Lee | Fees Expenses | 1,211,829 404,220 | ||
Total Legal Fees & Expenses | 1,355,228 | 1204.420 | 48,872,383 | |
Claim management costs | ||||
GUPC | 1,551,757 | 850,518 | ||
Sacyr | 1,255,039 | |||
Salini-Impregilo | 880,973 | |||
Jan de Nul | 1,187,108 | |||
Expert and Consultant Fees & Expenses | 10,723,388 | |||
Database Support Fees & Expenses | 760,771 | |||
Translation Costs | 66,584 | |||
Printing Costs | 67,473 | |||
ICC Advances | 2,000,000 | |||
Total Incurred Costs | 6,230,105 | 1,204,420 | 63,341,119 |
i. USD 23,043,743.17 in respect of Concrete Aggregate Production;
ii. USD 11,642,478.68 in respect of Foundation Conditions;
iii. USD 20,433,383.28 in respect of Concrete Mix Design and Delay;
iv. USD 1,079,194.34 in respect of On-Site Laboratories;
v. USD 2,488,348.12 in respect of Return on Investment;
vi. USD 633,713.04 in respect of Delay Damages.87
i. USD 4,650,235.41 in respect of Concrete Aggregate Production (Referral 11);
ii. USD 3,145,118.88 in respect of Foundation Conditions (Referral 13A);
iii. USD 4,755,649.40 in respect of Concrete Mix Design and Delay (Referral 11);
iv. USD 153,573.10 in respect of On-Site Laboratories (Referrals 1, 10 and 14B).88
i. USD 1,517,777.80 for the ACP’s costs of document production91;
ii. USD 926,793.13 in respect of Jurisdiction;
iii. USD 1,868,018.25 in respect of those applications in which the ACP prevailed.92
1. The costs of the arbitration shall include the fees and expenses of the arbitrators and the ICC administrative expenses fixed by the Court, in accordance with the scale in force at the time of the commencement of the arbitration, as well as the fees and expenses of any experts appointed by the arbitral tribunal and the reasonable legal and other costs incurred by the parties for the arbitration.
[...]
3. At any time during the arbitral proceedings, the arbitral tribunal may make decisions on costs, other than those to be fixed by the Court, and order payment.
4. The final award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.
5. In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.
• Claus von Wobeser: USD 963,250
• Robert Gaitskell: USD 963,250
• Pierre-Yves Gunter: USD 1,926,500 (which includes the financial compensation for the assistance of the Secretary to the Arbitral Tribunal).
• Procedural Order No. 1, concerning the Claimants' Emergency Application and request for a confidentiality order;
• Procedural Order No. 2, concerning the Respondent's alleged breaches of the Confidentiality Order;
• Procedural Order No. 3, concerning additional alleged breaches of the Confidentiality Order; and
• Procedural Order No. 4, concerning the Claimants' request to add "Tranche 2" to the Arbitration.
• USD 23,048,094.37113 in respect of Concrete Aggregates;
• USD 20,437,241.68114 in respect of Concrete Mix Design and Delay; and
• USD 2,488,817.40115 in respect of Return on Investment.
1. Orders the Claimants to pay, jointly and severally, to the Respondent damages in the amount of USD 238,460,621.80, plus 6% interest per annum as from the date of the notification of this Final Award and up to the date of payment in full;
2. Decides that the Claimants shall bear their own costs as well as the Respondent's costs in relation to the Concrete Aggregates claim;
3. Consequently, orders the Claimants, jointly and severally, to pay to the Respondent the amount of USD 23,048,094.37;
4. Decides that the Respondent shall bear 100% of its own costs and 70% of the Claimants' costs in relation to the Foundation Conditions claim;
5. Consequently, orders the Respondent to pay to the First Claimant the amounts of USD 10,079,575.62, EUR 1,094,264.58 and CHF 220,890.71 (being 70% of the Claimants' costs in relation to the Foundation Conditions claim following the adjustments made by the Arbitral Tribunal), plus interest at the rate of 6% per annum as from the date of notification of this Final Award and up to the date of payment in full;
6. Decides that the Claimants shall bear their own costs as well as the Respondent's costs in relation to the Concrete Mix Design claim;
7. Consequently, orders the Claimants to pay, jointly and severally, to the Respondent the amount of USD 20,437,241.68;
8. Decides that the Respondent shall bear its own costs as well as the Claimants' costs in relation to the On-Site Laboratories claim;
9. Consequently, orders the Respondent to pay to the First Claimant the amounts of USD 1,182,290.86, EUR 59,665.46 and CHF 12,044.20 (being the Claimants’ costs allocated to the On-Site Laboratories claims following the adjustments made by the Arbitral Tribunal), plus interest at the rate of 6% per annum as from the date of notification of this Final Award and up to the date of payment in full;
10. Decides that the Claimants shall bear their own costs as well as the Respondent's costs in relation to the Shareholders' ROI claim;
11. Consequently, orders the Claimants to pay, jointly and severally, to the Respondent the amount of USD 2,488,817.40;
12. Decides that the Claimants and the Respondent shall each bear their own costs in relation to the Delay Damages claim;
13. Decides that the Claimants and the Respondent shall each bear their own costs in relation to the jurisdictional phase, Emergency Application and Request for a Confidentiality Order;
14. Decides that the Claimants and the Respondent shall each bear their own costs in relation to the Respondent’s application to consolidate ICC Cases Nos. 20910 and 20911;
15. Decides that the Claimants shall bear their own costs as well as the Respondent's costs in relation to their Application to Add Tranche 2 to the Arbitration;
16. Consequently, orders the Claimants to pay, jointly and severally, to the Respondent the amount of USD 117,738.50;
17. Decides that the Claimants shall bear their own costs as well as the Respondent's costs in relation to their application to consolidate the present Arbitration with ICC Cases Nos. 22466 and 22967;
18. Consequently, orders the Claimants to pay, jointly and severally, to the Respondent the amount of USD 129,824.50;
19. Dismisses the Respondent's claim for reimbursement of its costs incurred in DAB Referrals 1, 10, 11, 13A and 14B;
20. Dismisses the Respondent's claim for reimbursement of USD 150,000 as "future costs";
21. Decides that the Claimants shall bear 30% of the Respondent's costs incurred for additional post-Partial Award work, including the preparation of updated cost submissions;
22. Consequently, order the Claimants to pay, jointly and severally, to the Respondent the amount of USD 57,972.38;
23. Dismisses the Respondent's request for reimbursement of its costs incurred in responding to the Claimants' Challenge Application as inadmissible;
24. Decides that the Claimants and the Respondent shall each bear 50% of the post-Partial Award arbitration costs (ICC advances and arbitrator fees), namely an amount of USD 105,000 each; and
25. Dismisses any and all other claims, counterclaims, and/or requests made by the Parties.
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