a) Cargill Incorporated (here-in-after CARGILL, or first Claimant); a Delaware corporation, having its headquarters located at: 15407 McGinty Road West, Wayzata, MN 55391; and
b) Cargill International S.A. (here-in-after CISA, or second Claimant); an anonymous company incorporated under Swiss Law. and having its headquarters located at: 14 Chemin de Normandie, 1206 Geneva, Switzerland.
a) on behalf of Cargill Incorporated, by virtue of the official Power of Attorney No. 1091/B for 2010, Bar Association Authentication, dated May 24, 2010; and
b) on behalf of Cargill International SA, by virtue of the official Power of Attorney No. 2248/A for 2014, Bar Association Authentication, dated May 26, 2014.
Dr. Mohamed Shehata
Ms. Salma El-Baz
Mr. Kamel R. El Shandidy
Mr. Mohamed Sallam
Mr. Amr Ehab
12 & 13 Mohammed Ali Genah Street
mohamed.sallam@ matoukbassiouny.com firstname.lastname@example.org
Tel: + (202) 2796 2042
Fax: + (202) 2795 4221
a) Egyptian Bulk Carriers S.A.E (hereinafter EBC, or first Respondent); a Joint Stock Company incorporated under Egyptian laws, and having its headquarters located at: 15 Ramo Buildings, Nasr City, Cairo, Egypt; and
b) IBRAMAR Holding Co S.A.E (hereinafter IBRAMAR, or Second Respondent): a Joint Stock Company incorporated under Egyptian laws, and having its headquarters located at: Freepor Building, 5th floor, Memphis & Nahda St, Port Said, Egypt.
a) For vessel SUN LUCIA:
(i) USD 30,300.00 in respect of New Orleans port disbursements:
(ii) USD 155,000.00 in respect of Panama Canal fees;
(iii) USD 25,000.00 in respect of Panama Canal transit slot reservation;
(iv) USD 300,000.00 in respect of bunkers; and
(v) USD 650,000.00 in respect of unpaid hire and unpaid port disbursements in Japan.
b) For vessel HERMANNS:
(i) USD 46,922.00 in respect of Yokkaichi port disbursements, and
(ii) USD 82,402.00 in respect of Nagoya port disbursements.
c) For vessel NOVO MESTO:
(i) USD 224,274.43 in respect of sums owed by EBC to the disponent Owners of the Vessel.
a) On August 13, 2013, CARGILL sub chartered from EBC four vessels: NOVO MESTO, HERMANN S. OCEAN PRELATE and BULK HONDURAS.
b) The Order does not refer to the charter-party of SUN LUCIA, dated May 16, 2013, between CISA and EBC. This is a normal consequence to the fact that the Writ did not address CISA.
c) CARGILL predicted during the litigation demurrage and dispatch resulting from the voyages of the four chartered vessels; and admitted in a final stage, during litigation, a resulting credit for EBC in the amount of USD 62,170.06; this is after an earlier estimate of USD 305,907.43.
d) FLORAL contended that CARGILL possessed a credit of at least USD 161,244.74 on April 17, 2014 in favor of EBC, and therefore submitted to the court a motion for an order compelling CARGILL to deposit a sum of USD 162,286.15, or in the alternative, USD 353,399.05, into the registry of the Court.
e) From January 2014, CARGILL alleged that EBC started defaulting in payments to previous owners of the chartered vessels, CARGILL, and in order to secure business, accepted to pay previous owners via its affiliate CISA. The payments were established in a Debt Agreement, dated March 19, 2014, between CARGILL CISA and EBC in the amount of USD 1,513,598.43.
f) The Order does not mention IBRAMAR.
g) And since CARGILL and CISA requested the payment of their debts from EBC on April 23, 2014, FLORAL's motion to order CARGILL to deposit money was denied, since a set-off negates the credit of EBC with CARGILL.
"This letter is subject to Egyptian Law and any dispute that may arise in relation there to shall be settled through arbitration in Cairo according to the rules of Cairo Regional Centre for International Commercial Arbitration. The arbitration shall be conducted in English".
a) introduction on the Parties;
b) Claimants' counsel;
c) summary of events;
d) relief sought;
e) arbitration agreement; and
f) nomination of Dr. Amr Abbas Mohamed Adel Abbas (here-in-after Dr. ABBAS), to act as a sole arbitrator for the arbitration.
"For the good record, I wish however to report that I was appointed by one of the respondents; (he Egyptian Bulk Carriers SAE, an October 16, 2012, as the co-arbitrator of the Claimant in an ad hoc arbitration, and whose procedure was discontinued and prematurely terminated in 2015".
a) declared commencement of proceedings on September 14, 2015;
b) determined tentative date for first procedural session to be on October 19, 2015;
c) advised the Parties with a draft agenda for the first procedural session;
d) determined a date for receiving the views of the Parties on the draft agenda (October 12, 2015); and
e) ordered Respondents to submit Response to the Notice of Arbitration on a date not later than October 12, 2015.
a) Dr. IBRAHIM was once their appointed arbitrator in another ad hoc arbitration case, where they disagreed with him on his performance of mission; and
b) Dr. IBRAHIM should have disclosed the fact that he was their co-arbitrator in a previous arbitration.
a) the two Procedural Orders of the alleged ad hoc Arbitration case are narrative enough to rebut the accusation of any wrongdoing (both were attached in the email); and
b) he satisfied due disclosure to CRCICA, when he added a note to the email of August 3, 2015 on his acceptance of nomination; under which he expressly disclosed the fact that he was an arbitrator for EBC in a previous ad hoc arbitration, whose procedure was discontinued and prematurely terminated (a copy of email of August 3, 2015 was also attached).
a) waiver of the Challenge by EBC for the fact that EBC did not strike the name of Dr. IBRAHIM, while being their previous co-arbitrator, when they had the chance to do so;
b) Dr. IBRAHIM already disclosed to CRCICA his previous relation with EBC in his email of August 3, 2015;
c) previous appointment of an arbitrator, absence connection between the previous and subsequent arbitrations, is not in itself a circumstance that can cast justifiable doubts on independence or and impartiality;
d) Procedural Orders of the previous ad hoc arbitration rebut any wrongdoings committed by Dr. IBRAHIM; and
e) the Challenge comes in a line with a bad faith procedural behavior of EBC.
a) clarifying new date for the re-constitution of Tribunal (October 10, 2015);
b) stopping emails on the pending Challenge, for any to be addressed to His Excellency CRCICA Director and not the Tribunal;
c) stopping exchange of informal argumentative emails, retaining them to written submissions;
d) advising the Parties of the approximate date of the objected first procedural session (second half of November, 2015);
e) inviting the Parties - this is for the second time - to express their views on the agenda of the expected first procedural session (deadline was set to be: November 8, 2015); and
f) inviting Respondents to submit their Response to the Notice of Arbitration -this is also made for the second time - notwithstanding the default of the Respondents under the first Procedural Order, with a new deadline dated: November 8, 2015.
a) Counsel of Respondents to submit an updated authentic hard copy evidence of his authority to represent the Respondents;
b) Counsel of Respondents to provide contacts of his team of defense;
c) Counsel of Respondents to submit his previous argumentative emails and Response to the Notice of Arbitration in a hard copy format (Note: This has never been fulfilled);
d) setting standards for emailing;
e) cancelling first procedural session (bearing absence expressed views of the parties); and
f) delaying subsequent Procedural Orders; this is until issuance of the decision of the Ad Hoc Tripartite Committee on the Challenge of Dr. IBRAHIM.
a) provide the Tribunal with updated authentic hard copy evidence of his authority in representing both persons of the Respondents;
b) submit in hard copy his previous argumentative emails and Response to the Notice of Arbitration (Note: This is now ordered for the fourth time): and
c) respond as soon as possible, and not later than December 15, 2015.
a) relation with previous procedural orders;
c) time limits;
d) dates of submissions;
e) written submissions;
f) formatting of submissions;
g) documentary evidence and legal authorities;
h) documents' translations;
i) administration of the proceedings;
j) closure of proceedings;
k) deliberations by the arbitral tribunal; and
l) possible hearing.
a) Claimants to file a "Statement of Claim", by February 21, 2016;
b) Respondents to file a "Statement of Defense" (and "Counterclaim", if any), by March 20, 2016;
c) Claimants to file a "Reply" (and in case of a "Counterclaim", its "Statement of Defense to the Counterclaim"), by April 3, 2016; and
d) Respondents to file a "Rejoinder" (and in case of a "Counterclaim", its "Reply on the Counterclaim"), by April 17, 2016 (This date was corrected by a corrigendum email on Feb. 12, 2016).
a) declare Respondents in material breach of the Debt Agreement;
b) declare Respondents’ breach being in bad faith;
c) order Respondents to pay USD 1,513,598.43; in addition to 5% contractual interest from due payment;
d) order Respondents to reimburse Claimants of all costs and expenses; and
c) order any further relief that the tribunal shall deem appropriate.
a) nullity of Debt Agreement, dated March 19, 2014, and its arbitration clause, for the lack of specific capacity required for signature by Mr. Mohamed Mohamed Moomen, and who unlawfully signed the Debt Agreement;
b) extinction of the arbitration clause, of Debt Agreement, dated March 19, 2014 (presuming its validity), due to a defense of waiver, resulting from a previous resort by Claimants to US courts on the same issue in dispute; and
c) suspension of the arbitration proceedings (presuming its validity and non-waiver of the arbitration clause), due to automatic stay of proceedings provided for under Article 741(1) of the Egyptian Trade Act, resulting from the Bankruptcy Composition Judgment of June 28, 2015.
d) Tribunal is bound to apply Article 741(1) of the Egyptian Trade Act, because it is part of the law chosen by the Parties under the Debt Agreement, dated March 19, 2014 (presuming its validity). Reference was made to the Chromalloy jurisprudence in Egypt.
a) an unofficial copy of a U.S. Court Order (issued by the Eastern District of Louisiana Court, on April 7, 2015, in a Civil Case. No. 14-879, between Floral Shipping Ltd. and EBC), denying CARGILL an oral argument; and
b) a copy of a Bankruptcy Composition Judgment, dated June 28, 2015, in both Arabic and English.
a) Competency of signatory to bind EBC under the Debt Agreement, Claimants submitted a copy of the EBC’s Commercial Register and which authorizes Mr. Mohamed Mohamed Mohamed Moomen to sign loans and securities on behalf of EBC (Note: the Debt Agreement refers to Mr. Mohamed Mohamed Moomen. The Tribunal consideres both being the same person, since this never objected to by EBC).
b) Rebuttal of alleged waiver of arbitration clause. Claimants explained details of the Louisiana Case, including appearance of CARGILL in the said proceedings, and which was made involuntarily due to a motion by a third party, FLORAL, targeting the attachment of possible EBC's funds with CARGILL, a situation which does not satisfy requirements of a waiver.
c) Bad faith conduct of the Respondents. Claimants alleged continuous bad faith conduct by Respondents, covering both the phase of the breach of the Debt Agreement, and that of the current arbitration proceedings.
d) Dismissal of the defense of suspension of arbitration. Claimants objected to the suspension for absence their notification of the Bankruptcy Composition Judgment, and fraud of EBC. Claimants argued that even when suspension under Article 741(1) of the Trade Act is found applicable; it shall not affect arbitration against IBRAMAR, the second Respondent.
a) The U.S. Courts’ Order of August 13, 2015, in the Floral Shipping Ltd. EBC (See: C-5); and
b) EBC's Commercial Register of January 19, 2015 (See: C-7)..
a) the proceedings of current arbitration case and their Procedural Orders;
b) the request of submission of recent Powers of Attorney and Commercial Registers of both Respondents; and
c) the charge of bad faith.
a) objection to allegation of representing IBRAMAR;
b) objection to allegation of bad faith, namely disconnecting EBC from early resignations by arbitrators, and which one of them. Dr. ABBAS, is working now for the law firm in charge of defending Claimants;
c) insistence on incapacity of signatory person on Debt Agreement;
d) insistence on waiver of arbitration clause by Claimants, now due to admission by Claimants, and who reported their resort to U.S. courts; and
c) insistence on suspension of arbitration proceedings, highlighting that Bankruptcy Composition Judgment of June 28, 2015, was duly published in accordance with the Egyptian Trade Act, and which does not require individual notification; this is in addition to the fact that CARGILL was notified by email on August 5, 2015.
a) a copy of an email sent by EBC to CRCICA on November 15, 2015, advising on the Power of Attorney of its defending lawyer. The email mentions that a Power of Attorney for Mr. Islam Mahmoud Sharawy is attached (Note: He is the same person, referred to in this arbitration as Mr. NASR). The Exhibit did not contain a copy of the Power of Attorney itself. This was the first time for the Tribunal to see this email (See: Appendix 1 of the Docket).
b) A copy of a recent resume of Dr. ABBAS, the first co-arbitrator for the Claimants, and which show that Dr. ABBAS is now a Partner and Head of the Commercial Arbitration at MATOUK BASSIOUNY, the Claimants' Law Firm in this arbitration (See: Appendix 2 of the Docket).
c) A copy of an email, dated August 5, 2015, sent by EBC to Ms. Nova Nola at CARGILL, advising on the Bankruptcy Composition Judgment, and that a session is going to be held for the Bankruptcy Composition on September 6, 2015 (See: Appendix 3 of the Docket).
a) reopened arbitration proceedings;
b) accepted request for a hearing, to take place on June 7, 2016, 13:00, in CRCICA;
c) invited the Parties to elaborate on certain aspects of the dispute in arbitration (namely: characterization of the Debt Agreement; status of second Respondent; validity of the Debt Agreement; and extent of the suspension effect of Article 741 of the Trade Act, if found applicable); and
d) adopted a regulation for the hearing.
a) Power of Attorney by Cargill Incorporated, No. 1091/B for 2010, Bar Association Authentication, dated May 24, 2010.
b) Power of Attorney by Cargill International SA, No. 2248/A for 2014, Bar Association Authentication), dated May 26, 2014.
c) Power of Attorney by EBC, No. 1863/C, dated May 21, 2014, Authentication Office, Elguizah, Cairo.
a) objection against valid authority of counsels of Claimants in appointing their co-arbitrator, and in representing these Claimants;
b) invalidity of Arbitration Clause, of the Debt Agreement, dated March 19, 2014, due to the lack of authority of the person who signed the Debt Agreement, Mr. Mohamed Mohamed Moomen;
c) waiver of same Arbitration Clause (if found valid) by Claimants due to their previous reference of same dispute to US courts, where they used a set-off against the Debt of the Debt Agreement, dated March 19, 2014; and
d) automatic suspension of the arbitral proceedings due to the Bankruptcy Composition Judgment, dated June 28, 2015.
a) Is the Arbitration Clause valid?
b) Is recourse to arbitration waived due to the U.S. litigation?
c) Is the Tribunal validly constituted?
d) Should the arbitration be effected by the Bankruptcy Composition Judgment? Namely,
(i) Basis of the application of Article 741 of the Trade Act.
(ii) Should the whole proceedings be suspended?
(iii) Should the proceedings be suspended only for the first Respondent (EBC)?
(iv) If proceedings to be suspended only for first Respondent, shall Tribunal be able to quantify the damages? (i.e., suspension does not prevent "declarative" authority of Tribunal).
a) invalidity of the arbitration clause;
b) wavier of the arbitration clause;
c) invalidity of the constitution of the Tribunal due to the lack of authority of the counsels of the Claimants in appointing their co-arbitrator; and
d) suspension of the whole proceedings due to the Bankruptcy Composition Judgment, and which was made in favor of EBC.
a) held to the validity and effectiveness of their Powers of Attorney;
b) held to valid constitution of Tribunal;
c) held to validity of Arbitration Clause, in application of competency of signing person, Mr. Mohamed Mohamed Moomen, under Commercial Register of EBC; and
d) objected to the suspension of the arbitral proceedings, at least against IBRAMAR.
a) validity of Debt Agreement;
b) liability of both Respondents for breach of Debt Agreement;
c) liability of both Respondents for payment of full Debt, including interests and costs; and
d) liability of both Respondents for their bad faith.
a) set dates for Post-Hearing Briefs (Claimants: June 25, 2016; and Respondents: July 5, 2016) and their Replies (Claimants: July 11, 2016; and Respondents: July 17, 2016);
b) set regulatory provisions for the Briefs and their Replies;
c) invited the Parties to address any claimed costs/expenses in the Brief and Replies; and
d) advised dates of Deliberation (last week of July, 2016) and expected date for Final Award (first week of August, 2016).
a) Louisiana Court Case does not waive the Claimants right to arbitrate, namely:
i. Claimants were not Party in the Louisiana Court Case;
ii. Claimants were forced to appear in the Louisiana Court Case;
iii. both litigations of the US and this arbitration have different merits; and
iv. Claimants never submitted a claim in the Louisiana Court Case.
b) Matouk Bassiouny's Powers of Attorney are valid to represent Claimants: namely, both Powers of Attorney are subject to the laws of the countries where they were issued, in this case, Chicago (USA) and Switzerland. The concerned Notary Public Offices would not have notarized such Powers of Attorney, except after ascertaining the capacity of their issuers to issue same.
c) Signature of Mr. Mohamed Mohamed Moomen binds IBRAMAR; this is namely due to the fact that Mr. Mohamed Mohamed Moomen’s apparent and undisputed title as the General Manager; in addition to the fact that: the two Companies, EBC and IBRAMAR, are sister Companies, and both Companies are under the same management of Mr. Ibrahim Moomen.
d) Respondents are in bad faith of both, breach of Debt Agreement and conduct in arbitration.
a) CRCICA’s Invoice for the Arbitration Fees;
b) Proof of Payment by Claimants Arbitration Fees; and
c) Matouk Bassiouny’s Invoice for the Legal Services provided to Claimants.
a) Facts related to claims of had faith.
b) Invalidity of the appointment of Claimants' co-arbitrator and representation in the case, due to invalidity of the Powers of Attorney.
c) Lack of capacity of Mr. Mohamed Mohamed Moomen to sign the Debt Agreement, and not only to sign an agreement that includes an arbitration clause.
d) Suspension of arbitral proceedings in application of Article 741(1) of the Trade Act.
c) Precautionary defense, raised for first time, holding to an alleged admission by Claimants exercised during the Louisiana Court Case, of the Debt, being only US Dollars 353,598.34.
a) Nullity of Debt Agreement and Arbitration Clause.
b) Invalidity of the constitution of current Arbitral Tribunal.
c) Extinction of Arbitration Clause (in case the Arbitration Clause is found valid).
d) Suspension of Arbitration (in case the Arbitration Clause is found valid and not waived).
c) As precautionary defense, Claimants are entitled to only US Dollars 353,598.34.
a) replaced the verbatim transcript of the Hearing with a summary, attached to Procedural Order No. 9;
b) extended dates of Reply to Post-Hearing Briefs (Claimants: July 18th, 2016; and Respondents: July 24th, 2016);
c) invited the Parties to comment on the summary of the Hearing, during their Replies; and
d) advised on new date for Deliberations (first two weeks of August), and expected date for the issuance of award (end of August, 2016).
a) insistence on absence waiver of the Arbitration Clause by the Claimants;
b) insistence on validity of the Powers of Attorney of the lawyers of the Claimants;
c) insistence on capacity of Mr. Mohamed Mohamed Moomen to sign the Debt Agreement on behalf of IBRAMAR (submitting for the first time a copy of a Commercial Register for IBRAMAR);
d) insistence on Respondents’ bad faith, in both: breach of the Debt Agreement, and conduct of this arbitration; and
e) insistence on the amount of Debt being USD 1,513,598.43, and not USD 353,598.43. This is for two main reasons:
i) the smaller amount was mentioned in the Louisiana Court Order as part of a larger amount of Debt; and
ii) EBC, and according to their Debt Report submitted to Egyptian courts, mentioned the larger amount, as their Debt with the Claimants.
a) A copy of a Commercial Register for IBRAMAR, dated January 9, 2014, and which grants Mr. Mohamed Mohamed Mohamed Moomen in association with IBRAMAR’s Board Chairman, or individually, the authority to sign on behalf of IBRAMAR, for transactions of disposition, namely contracts of sale, purchase and providing security (See: C-4 of the Docket of Exhibits, dated July 18, 2016); and
b) A copy of a Debt Report, submitted by EBC to Egyptian courts, referring to the Debt being USD 1,513,598.43 (See: C-9 of the Docket of Exhibits, dated July 18, 2016).
a) IBRAMAR participated in the early stage of this Arbitration by nominating an arbitrator, Mr. El-GAMAL, on February 9, 2015.
b) When Mr. GHARIB, the co-arbitrator of the Respondents resigned on March 10, 2016; he expressly referred to his appointment by IBRAMAR. This was reported to all. including IBRAMAR, and which chose not to comment thereon.
c) BRAMAR was always advised of every step of these arbitral proceedings via its email account, the same email account from which CRCICA received IBRAMAR’s nomination of Mr. El-GAMAL.
d) IBRAMAR received from CRCICA courier advising on the progress of the arbitral proceedings.
e) Claimants submitted legal notices served on IBRAMAR by court bailiff. advising IBRAMAR on all aspects of these arbitral proceedings, in different many times.
f) Both EBC and IBRAMAR share the same Board Chairman, Mr. Ibrahim Moomen, and Mr. Ibrahim Moomen was aware of the proceedings (See for example the letter dated June 21, 2016, and which was issued in support of the authority of Mr. NASR to act in this arbitration on behalf of EBC).
a) appointment of an arbitrator is not agreeing to arbitration, while the second requires - under most of the laws of the world - a specific authorization, this is not required for a lawyer to defend his client (the Principal) in arbitration; this includes appointment of arbitrators; and
b) any restriction on the capacity of a person, be it a juridical person, should be exercised by this person or its representative, the opponent party does not enjoy legal interest in invoking absence of such element of restriction (See: Wali. op. cit., p. 129).
"All lawsuits and enforcement proceedings proceeded against the debtor shall he suspended upon issuance of the judgment for opening bankruptcy composition proceedings. However, lawsuits filed by the debtor and enforcement proceedings carried out by him shall stay in process, along with rejoining the composition trustee thereto."
a) absence notice of the Bankruptcy Composition Judgment;
b) date of issuance of the Bankruptcy Composition Judgment is made before the date of Notice to Arbitration; and
c) absence of basis for suspension against IBRAMAR.
a) the nature of the obligation to pay jointly and severally between the co-debtors, i.e., EBC and IBRAMAR, is indivisible; the Tribunal should cither suspend for both or decide for both; and
b) if the Tribunal decides against a joint and several debtor, here IBRAMAR, and do not decide against the other, i.e., EBC, the Tribunal shall fall into the vice of unveiling its conviction against EBC, and once expressed in an award against IBRAMAR shall deprive the Tribunal from the ability to decide against EBC.
a) Deciding upon one of the arbitrating parties and suspending against the other is not division of obligations.
b) The obligation under the Debt Agreement is not an indivisible one, given that Article 300 of the Egyptian Civil Act provides that an obligation is indivisible only if "(a) it has for its object something which by its nature is not susceptible of division; (b) if it is the intention of the parties or it follows from the purpose pursued by the parties that the performance of the obligation should not be divided". The foregoing conditions are not applicable to EBC and IBRAMAR obligation under the Debt Agreement.
c) Pursuant to Article 285 of the Civil Code, Claimants have the power to choose one of the co-debtors for legal recourse, and leave the other for a subsequent litigation, or even clear one of the co-debtors, while invoking the liability of the other.
d) Joint and several liability between two co-debtors does not prevent two different awards, each one for the liability of one of the co-debtors.
e) IBRAMAR is not subject to the Bankruptcy Composition Judgment, and the preparatory works on Article 741(1) of the Egyptian Trade Act, clearly states that suspension applicable to the insolvent merchant does extend to its several and joint co-debtor, implying possible suspension for insolvent merchant while pursuing legal recourse against the other.
f) Deciding against IBRAMAR, and suspending proceedings against EBC, is in line with the requests of Claimants and EBC, even when these requests do not amount to a joint request for suspension.
g) Deciding against IBRAMAR does not unveil conviction of the Tribunal with regard to the engagement of the liability of EBC, since defenses of one of the co-debtors is not necessarily the same for the other. For example, EBC may succeed in establishing waiver of the Arbitration Clause, while this Arbitration Clause continues being enforceable against the other co-debtor (i.e., IBRAMAR).
a) while EBC is requesting a total suspension, Claimants asked the Tribunal to decide on the breach of Debt Agreement, limiting suspension to quantification of damages and order of payment; and
b) joint agreement on suspension, though available without maximum time-limit (opposite to joint agreement on suspension in Courts), should contain a joint time-limit subject to review of the Tribunal, since an Arbitral Tribunal cannot be bound to stay in office indefinitely.
"If, in the course of the arbitral proceedings a matter lying outside the mandate of the Arbitral Tribunal arises: or if a document submitted to it is challenged for forgery; or if criminal proceedings are instituted for forgery or for any other criminal act; the Arbitral Tribunal may continue to review the merits of the dispute if it deems a decision on such matter, on forgery of the document or on the other criminal act to be unnecessary for the determination of the merits of the dispute. Otherwise, it shall suspend proceedings until a final judgement is issued in this respect. Such suspension shall entail suspension of the time-limit prescribed for rendering the arbitral award".
"A creditor may claim supplementary indemnity in addition to interest if he proves that the harm that exceeds the value of the interest was caused by the debtor in bad faith".
a) "... failure to respond to any legal notices from the Claimants..."; and
b) "... refu[sal] to undertake any action in an attempt to settle the owed amounts despite the requests made by Claimants...".
a) Arbitration costs: USD 42,027, covering payments to CRCICA:
i. January 6, 2015: USD 9013.50
ii. February 25, 2015: USD 33,013.50
b) Legal costs till June 23, 2016: USD 150,231.00
1) suspension of these arbitral proceedings against Egyptian Bulk Carriers SAE, in application of Article 46 of the Egyptian Arbitration Act, due to the rise of Bankruptcy Composition, and which majority of the Tribunal finds as incidental matter, that needs first to be settled by the competent court;
2) validity of the "Debt Agreement" dated March 19, 2014, including its relevant arbitration clause, against Ibramar Holding SAE;
3) jurisdiction to hear the dispute against Ibramar Holding SAE;
4) declaration that Ibramar Holding SAE is in breach of the "Debt Agreement", dated March 19, 2014;
5) quantification of the indemnity due to be paid by Ibramar Holding SAE to the Claimants, due to their breach of the "Debt Agreement" dated March 19, 2014, to include:
a) restitution of the principal Debt, in the amount of USD 1,513,598.43 (one million five hundred thirteen thousand, five hundred ninety eight United States of America dollars and forty-three cents);
b) indemnity for delay of payment of principal Debt, and which shall be at the rate of 5% per annum of the principal Debt (USD 1,513,598.43) from April 28, 2014 and until date of full payment of principal Debt; and
c) restitution of the arbitration and legal costs, and which the Tribunal quantifies as USD 78,027 (seventy eight thousand and twenty seven United States of America dollars), in addition to interest on the amounts of these costs, at the rate of 5% per annum, from the date of issuance of this Arbitral Award, and until the date of full payment of these costs; and
6) dismiss of the relief for supplementary indemnity against Ibramar Holding SAE for alleged bad faith breach of contract and unlawful procedural behavior.
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