"in as simple a vehicle as possible, to set out the substance of the parties' respective positions and to enable us (if we are so minded) to select and apply alternative figures insofar as we consider that to be appropriate": para. [28(d)].
"That said, it remains a tool to assist us in the assessment of damages and is not something which can mechanistically dictate either the process or the result of the relevant assessment": para. [28(n)].
"And looking at matters more broadly, we still consider that in principle (and notwithstanding the line by line methodology of the Agreed Model) it is less important for us to have absolute confidence in each part of the calculation (so much of which involves an element of speculation on inadequate evidence) than it is for us to be satisfied that the overall results of the exercise produce figures which we consider are a reasonable assessment of the [Caledor Parties'] loss. Whilst we do not (and, in light of the parties' agreed position, cannot) shirk the evidential challenges posed by the myriad of micro issues raised on this and other detailed sub-issues, there is an element of missing 'the wood for the trees' in the detailed exercise which follows. Hence, we shall address the detail of the normalisation issues canvassed in evidence, but we shall then stand back and try and 'sense check' the calculated EBITDA margin more broadly in the light of all the evidence, at least insofar as we are able to in the absence of any relevant inputs into the Agreed Model for such general matters": para. .
"...On the face of it, the Agreed Model has produced lower figures for the adjusted EBITDA margin than those other sources. To that limited extent, the exercise certainly does not appear to overcompensate the [Caledor Parties] at this stage of the evaluation. But we are not in any position to conclude, at least with any degree of confidence, that the exercise undercompensates [them] either at all or to such an extent that it should call into question the results produced by the Agreed Model; although the results appear lower than the Damodaran or other market comparables or management's target EBITDA, we cannot say that they are so much lower as to call into doubt the validity of the exercise".
"Nonetheless, on the evidence before us, we are quite unable to substitute our own (higher) EBITDA margin for that produced by the Agreed Model, nor do we believe that such a process is ultimately justified, even if (as we infer) further and updated financial results might have shown the group in a better economic position. In the final analysis, we do not believe that the ultimate valuation placed on the Option Shares which is derived from the Agreed Model would (even if recoverable in full) under-compensate the [Caledor Parties]. Furthermore, given our conclusion that the limitation of liability clause applies, our application of the Agreed Model demonstrates that any further increase in EBITDA margin would not ultimately produce any significantly higher recovery in damages": para. .
"[E]ven allowing for the fact that we did not intend to make the mistake in line item 23, it does not follow that (barring such a mistake) we intended to value the group and the Option Shares and award damages in the recalculated and very much reduced sums proposed by the [Doglemor Parties]. On the contrary, we consider that if we made the corrections sought...this would not result in giving effect to our true intentions, as expressed in the Award, of awarding substantial damages to the [Caledor Parties]. The corrected award...would be a radically different award, not one which we intended to make and not one which it could be said we would have intended to make, even if we had spotted and corrected the error at line item 23 at the time": para. .
"was not in fact performed by a mechanistic, step by step application of the Agreed Model. On the contrary, the assessment was an iterative process in which the tribunal went back and forth and in which the output of the Agreed Model was itself a driver which was itself taken into consideration at earlier stages of the tribunal's determination on individual issues. That is not to say that the whole process was 'results-driven' or 'reverse engineered'; rather, that the tribunal subjected much of its micro-analysis on individual issues to an overall sense check of how our initial conclusions on those individual issues fitted into the overall calculation and where, as a result, that overall calculation came out...": para. .
"...An arbitration award is prima facie conclusive. The Court has only limited powers of intervention. It exercises them on well-established grounds such as (to take the case arising here) the arbitrators' failure to deal with some matter falling within the submission. The reopening by the arbitrators of findings which there were no grounds for remitting and which they had already conclusively decided would therefore have been contrary to the scheme of the Arbitration Act."
Although Lord Sumption's observations were concerned with what issues had been remitted, rather than what issues should be remitted, and made in the context of different legislation – the Arbitration Act of Jamaica – the general principle expressed in the passage is authoritative, that an arbitration award is prima facie conclusive. There is no need to canvass the learning behind it; it speaks for itself.
(i) the Tribunal had in mind, when addressing it, being satisfied that the overall results produced figures which it considered a reasonable assessment of the Caledor Parties' loss.
(ii) what was calculated by the line by line methodology of the Agreed Model was less important than this.
(iii) there was an element of speculation involved because of inadequate evidence; its work on the EBITDA margin was not a precise exercise of mathematics; and it needed (in its language) to avoid missing "the wood for the trees" in its detailed calculations.
(iv) having undertaken that detailed work on the EBITDA margin, it was not confident that the Agreed Model had not undercompensated the Caledor Parties, and it had the residual concern that if the FY2018 accounts had been disclosed, these may well have led to a more favourable figure.
(v) however, to substitute its own, higher EBITDA figure was not justified on the evidence before it and because (a) the Tribunal did not believe that the "ultimate valuation" of the option shares undercompensated the Caledor Parties; and (b) in any event the limitation of liability clause in the Call Option Deed applied, placing a ceiling of $US 60 million on loss, so that a further increase in the EBITDA margin would not produce any significantly higher recovery.
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