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

Final Award Against Ibramar Holding Co. SAE

I. INTRODUCTION

1.
This, Award is made, in the Arbitration Case No. 1008 of 2014, between: Cargill Incorporated & Cargill International SA (Claimants), and Egyptian Bulk Carriers SAE & Ibramar Holding SAE (Respondents); under the 2011 Arbitration Rules of the Cairo Regional Center for International Commercial Arbitration (here-in-after CRCICA).
2.
This Award decides finally against Ibramar Holding SAE, while suspending proceedings against Egyptian Bulk Carriers SAE.
3.
The Award is made under the following subsequent four parts: Facts (II); Procedure (III); Reasons (IV); and Decision (V).

II. Facts

4.
This part of the Award concerns the factual aspects of this arbitration case, and which include its: (A) Parties: (B) Chronological Events of Dispute; (C) Arbitration Clause; (D) Choice of Law Clause; and (E) Tribunal.

A) Parties & Representatives

1) Claimants and their representatives

5.
Claimants in this arbitration are:

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.

6.
Claimants are represented in these proceedings by Matouk Bassiouny Law Firm; as follows:

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.

7.
Communications addressed to Matouk Bassiouny in this arbitration were directed as instructed by the representatives of the Claimants to the following:

Dr. Mohamed Shehata
Ms. Salma El-Baz
Mr. Kamel R. El Shandidy
Mr. Mohamed Sallam
Mr. Amr Ehab

MATOUK BASSIOUNY
12 & 13 Mohammed Ali Genah Street
Garden City
Cairo, 11451
Egypt

Emails:
mohamed.shehata@matoukbassiouny.com
salma.elbaz@matoukbassiouny.com
kamel.elshandidy@matoukbassiouny.com
mohamed.sallam@ matoukbassiouny.com amr.ehab@matoukbassiouny.com
Tel: + (202) 2796 2042
Fax: + (202) 2795 4221

2) Respondents and their representatives

8.
Respondents in this arbitration are:

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.

9.
Claimants provided the Tribunal with one address for both Respondents, and which was used by CRCICA and the Tribunal for communication; and which is: Freepor Building, 5th floor, Memphis & Nahda St, P.O. Box 460, Port Said, Egypt.
10.
Both Respondents communicated with CRCICA and the Tribunal using the following email accounts:

a) EBC used the email account: attorney@egbe.com

b) IBRAMAR used the email account: info@ibramar.com.eg

11.
First Respondent was represented by their in-house legal counsel, Mr. Islam Mahmoud Ibrahim Nasr (here-in-after Mr. NASR), based on: an official Power of Attorney No. 1863 C, dated May 21, 2014. Authentication Office of Elguizah, Cairo; and a letter of authorization, signed by Board Chairman of EBC, dated June 21, 2016.
12.
It has to be noted that Mr. NASR used in certain communications the family name of El-Sharawy: the Tribunal shall refer to him using his family name that appears in his official Power of Attorney, dated May 21, 2014.
13.
Claimants allege that Mr. NASR was also in implied representation of second Respondent (i.e., IBRAMAR), at least in an early stage of the proceedings.
14.
Mr. NASR never claimed or admitted representation of IBRAMAR.

B) Chronological Events of Dispute

15.
In order to understand the background of this dispute, a recall of crucial events between the parties needs to be made. The Tribunal used different sources to understand these events, namely the Debt Agreement, dated March 19, 2014 (here-in-under the "Debt Agreement"), and the Order of the United States District Court of Eastern District of Louisiana, in the Civil Action No. 14-879, between Floral Shipping Ltd. and Egyptian Bulk Carries, dated August 13, 2015 (here-in-after Louisiana Court Order).

1) May 16 and August 13, 2013: The Charter-Parties

16.
EBC (i.e., first Respondent) is an Egyptian Sea Carrier that provides services of international sea carnage using other ship-owners' vessels under contracts for the hire of these vessels: these contracts are called in practice: charter-parties.
17.
Claimants sub-chartered from EBC five vessels, namely:

a) Charter-party of vessel SUN LUCIA, dated May 16, 2013, between CISA and EBC; and

b) Charter-parties of vessels: HERMANN S, NOVO MESTO, OCEAN PRELATE and BULK HONDURAS: each dated August 13, 2013, and concluded between CARGILL and EBC.

2) March 19, 2014: Debt Agreement

18.
In January 2014, and according to CARGILL, EBC began defaulting on its obligations to owners of vessels that they had sub-chartered to Claimants (See: Louisiana Court Order, dated August 13, 2015, p. 5). To assure uninterrupted passage of the chartered vessels, CISA (the affiliate of CARGILL) paid certain voyage expenses that were incurred by the vessels sub-chartered to CARGILL and CISA, and that were EBC's obligation to pay (See: Louisiana Court Order, dated August 13, 2015, p. 5).
19.
As of March 19, 2014, CISA's payments of EBC's obligations totaled USD 1,513,598.43 (here-in-after referred to as "Debt" or the "Debt"). The Debt was established by a Debt Agreement, dated March 19, 2014, where both CARGILL and CISA appeared as co-creditors (Claimants in this arbitration case); and EBC and IBRAMAR, appeared as several and joint co-debtors (Respondents in this arbitration case).
20.
The Debt Agreement states its coverage of the following debts (See Paragraph No. 1 of the Debt Agreement):

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.

21.
The Debt Agreement appears in the form of a letter, of three pages, under the letterhead of IBRAMAR and holds a stamp for EBC, Branch of Port Said.
22.
The Debt agreement is signed two times by a person called: Mr. Mohamed Mohamed Moomen, first as General Manager of EBC, and then as General Manager of IBRAMAR.
23.
The Debt Agreement stipulates that Respondents shall pay back to Claimants a debt amounting to USD 1,513,598.43 (i.e., one million five hundred thirteen thousand and five hundred ninety eight United States of America dollars and forty-three cents): this is in reference to a previous vessel chartering business between the parties.
24.
The Debt Agreement also entitles Claimants to any accrued interest, commissions, taxes, legal expenses, and legal fees starting from its due date (See: Paragraphs 3 and 4 of Debt Agreement).
25.
Claimants allege that the mam condition in the Debt Agreement was that once they request payment of Debt, in the form of a written notice. Respondents shall pay, within three business days, from the date of such notice (See: Paragraph 3 of Debt Agreement).
26.
It has to be noted that Paragraph 6 regulated a possible future credit for Respondents, resulting from the on-going sub-charterings, and expressly included Respondents' right of a set-off against the amount of Debt (See: Paragraph 6 of Debt Agreement).

3) April 16, 2014: Writ of Attachment of EBC's funds with CARGILL

27.
A third party, Floral Shipping Co. (here-in-after FLORAL), filed a claim against EBC, in the Eastern District of Louisiana, in the United States of America, in which FLORAL claimed USD 1,259,539.08 from EBC due to allegation of breach and due payments under a charter-party dated January 16, 2014 for the vessel OKIALOS.
28.
FLORAL requested a writ of attachment (i.e., a seizure of assets) from the court, seeking attachment and collection of all EBC's property within the territorial jurisdiction of the United States' District Court of the Eastern District of Louisiana (here-in-after Louisiana Court). On April 16, 2014, the Louisiana Court approved the Writ of Attachment (here-in-after, the Writ).
29.
The Writ was served on CARGILL on April 17, 2014, commanding attachment of all property of EBC in the hands of CARGILL and/or Southport Agencies Inc.
30.
The Writ did not address CISA (second Claimant, in these arbitral proceedings).

4) April 23, 2014: First Request of Payment

31.
On April 23, 2014, Claimants notified Respondents requesting payment of Debt; in application of Debt Agreement, dated March 19, 2014, within the contractual period of payment, and which was three business days. Both Respondents never responded or paid.

5) August 13, 2015: Denial of FLORAL's Motion for Attachment

32.
On August 13, 2015, the Louisiana Court Judge, Ms. Sarah S. Vance, denied FLORAL's motion for attachment, for the fact that FLORAL has not met its burden to establish a right of attachment to any funds held by CARGILL.
33.
Louisiana Court Order of August 13, 2015 contains the following facts:

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.

6) November 9, 2014: Second Request of Payment

34.
Claimants attempted to get Respondents to pay the Debt, for a second time on November 9, 2014, when they sent an official legal notice with a court bailiff to Respondents, requesting immediate payment.
35.
Due to absence payment. Claimants brought their claim to current arbitration, by a Notice of Arbitration, dated November 24, 2014.

C) Arbitration Clause

36.
Debt Agreement contains, at Paragraph 15 thereof, an arbitration agreement, stipulating that:

"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".

D) Choice of Law Clause

37.
Paragraph 15 of the Debt Agreement also includes an agreement of the Parties on applicable law to their agreement (i.e., lex contractus), and which is the Egyptian law.

E) TRIBUNAL

38.
The Claimants' co-arbitrator in this arbitration is Dr. Ismail Ahmed Abdel Wahab Selim (here-in-after Claimants' Co-Arbitrator or Dr. SELIM).
39.
Dr. SELIM is Egyptian; born on July 20, 1975; practicing lawyer admitted to the Egyptian Bar; with place of residence at: 69 El-Guezira Compound, 6th of October City, Egypt.
40.
The Respondents' co-arbitrator in this arbitration is Dr. Osama Ahmed El Meligy (here-in-after Claimant's Co-Arbitrator or Dr. EL-MELIGY).
41.
Dr. EL-MELIGY is Egyptian; born on September 30, 1955; Professor of Civil and Commercial Procedure Law at the Law School of Cairo University; with place of residence at: 3 B, Omar Ebn Elkhattab (of Amman St.), Dokki, Gizah, Egypt.
42.
The Presiding Arbitrator in this arbitration is Dr. Nader Mohamed Mohamed Ibrahim (here-in-after Presiding Arbitrator or Dr. IBRAHIM).
43.
Dr. IBRAHIM is Egyptian: born on June 11, 1967; Professor of Commercial and Maritime Law at the Arab Academy for Science, Technology and Maritime Transport; with place of residence at 10 Ahmed Shokri, San Stefano, Alexandria, Egypt.

III. PROCEDURE

44.
In order to facilitate presentation of procedural history, two mam phases shall be distinguished: first, procedure prior constitution of current Tribunal (A); and, second, those which took place after this constitution (B).

A. Procedure prior Constitution of current Tribunal

1) November 24, 2014: Notice of Arbitration

45.
On November 24, 2014, Claimants submitted to CRCICA their Notice of Arbitration. and which included:

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.

46.
Notice of Arbitration was supported with a Docket of Exhibits, containing copies of the Debt Agreement, and payment notifications.
47.
CRCICA sent a copy of the Notice and its Exhibits to both Respondents by courier, with a cover letter dated November 29, 2014; advising registration of an arbitration case and determining the fees due. The letter and attachments were evidenced to be received, by both Respondents, namely IBRAMAR, on December 2, 2014.

2) January 8, 2015: Claimants' request for a sole arbitrator

48.
On January 8, 2018, and due to absence response from Respondents, Claimants requested CRCICA to confirm their nominated arbitrator, to act as sole arbitrator for the case.

3) January 13, 2015: CRCICA's refusal of Dr. ADDAS as sole arbitrator

49.
On January 13, 2015, CRCICA sent all the Parties its refusal of the request of Claimants for their nominated arbitrator to act as sole arbitrator for the case; and suggested instead that CRCICA to make appointment of the sole arbitrator, and invited the Parties for their views within a date not exceeding January 29, 2015.

4) January 22, 2015: EDC's objection to a sole arbitrator

50.
On January 22. 2015. Mr. Mohamed Samir, from EBC, emailed CRCICA, white-advising late awareness of proceedings and non-receiving of the Notice of Arbitration, objected to the Claimants' request for sole arbitrator proceedings. The same statement was made by a hard copy letter, dated January 26, 2015, and acknowledged for receipt by CRCICA on January 27, 2015.

5) January 27, 2015: CRCICA decides a tripartite tribunal

51.
On January 27, 2015, and in acceptance of EBC's objection against a sole arbitrator’s proceedings. CRCICA decided proceedings of a tripartite tribunal, and invited each group of the Parties to appoint its co-arbitrator, setting a date not exceeding February 10, 2015.

6) February 2, 2015: Claimants' insistence on a sole arbitrator

52.
On February 2, 2015, Claimants objected to CRCICA's decision to a tripartite tribunal, insisting on a sole arbitrator tribunal and referring to a claimed earlier decision of CRCICA to this effect.

7) February 9, 2015: IBRAMAR's nomination of Mr. El-GAMAL

53.
On February 9, 2015, IBRAMAR sent CRCICA an email, advising that they nominate an arbitrator for the case; his name is Mr. Medhat El Tabaay El Gamal (here-in-after El-GAMAL). The email stated that Mr. El-GAMAL is an attorney at law, before the court of appeal.
54.
It has to be noted that the email of February 9, 2015 by IBRAMAR was made from their email account:... The email of February 9, 2015 did not include a name for the sender at IBRAMAR; it only contained a concluding reference to the legal department of IBRAMAR.
55.
It has to be noted that email of February 9, 2015 by IBRAMAR is very significant, since it is the first response from IBRAMAR in this arbitration proceedings. This concludes to the awareness of IBRAMAR of all the details of the proceedings since CRCICA, and afterwards the Tribunal, both have used the same email account for advising IBRAMAR on the progress of proceedings. Neither CRCICA nor the Tribunal did however receive any communication from IBRAMAR using this email account, after that of February 9, 2015.

8) March 4, 2015: Claimants’ re-insistence on a sole arbitrator

56.
On March 4, 2015, the Claimants repeated their objection to CRCICA’s decision for a tripartite tribunal, re-insisting on a sole arbitrator tribunal proceedings.

9) March 16, 2015: CRCICA's re-insistence on a tripartite tribunal

57.
On March 16, 2015, CRCICA re-insisted on its decision for a tripartite tribunal and invited each group of the Parties to appoint their co-arbitrator, within date not exceeding March 22, 2015.

10) March 17, 2015: Claimants' appointment of Dr. ABBAS

58.
On March 17, 2015, Claimants, in acceptance of and adherence to the decision of CRCICA of March 16, 2015, confirmed appointment of Dr. ABBAS, to be their co-arbitrator in a tripartite tribunal.

11) April 1, 2015: Nomination of Mr. GHARIB by EBC

59.
On April 1, 2015, EBC emailed CRCICA nominating Mr. Mahmoud El Sayed Gharib, to act as their co-arbitrator (here-in-after Mr. GHARIB). It has to be noted here that the nomination was made after the deadline of March 22, 2015.
60.
EBC did not express in its email of April 1, 2015 to CRCICA whether its nomination of Mr. GHARIB was reached after coordination with IBRAMAR. This is why the Tribunal carefully qualifies the choice of Mr. GHARIB, on April 1, 2015, as a "nomination" and not as an "appointment". Nomination is not a final empowerment and awaits further endorsement from a Party or CRCICA. After such endorsement, the nomination shall grow to the level of an appointment.
61.
It seems that the nomination of Mr. GHARIB of April 1, 2014, changed to the status of appointment, when it has reached IBRAMAR, and when this latter did not object to it, notwithstanding its previous nomination of Mr. EL-GAMALL, on February 9, 2015.
62.
Previous communications between CRCICA and the Parties do not include any objection by IBRAMAR against the nomination of Mr. GHARIB due to IBRAMAR's previous nomination of Mr. EL-GAMALL. The communications do not either contain express endorsement by IBRAMAR on the nomination of Mr. GHARIB by EBC.
63.
It has to be noted (hat when Mr. GHARIB resigned later, he referred his appointment to IBRAMAR and not EBC. IBRAMAR was notified of this resignation; and its content and never objected to it.

12) April 6, 2015: CRCICA advises Messrs. ABBAS & GHARIB of their appointments

64.
On April 6, 2015, CRCICA advised Messrs. ABBAS and GHARIB of their appointments, and invited their declaration of independence/impartiality and acceptance of mission. The Parties were also advised by CRCICA of this progress.

13) April 9, 2015: Dr. ABBAS accepts mission

65.
On April 9, 2015, Dr. ABBAS submitted his written acceptance of mission, supported with an unqualified declaration of independence and impartiality (dated, April 8, 2015).

14) April 21, 2015: Mr. GHARIB accepts mission

66.
On April 21, 2015, Mr. GHARIB also submitted his written acceptance of mission, supported with an unqualified declaration of independence and impartiality (dated, April 19, 2015).

15) May 9, 2015: Co-arbitrators' list of candidates for presidency

67.
On May 5, 2015, and due to non-arrival to a joint appointment of a presiding arbitrator, the co-arbitrators emailed CRCICA and the Parties of their achievement of a short list of candidates for the position of a presiding arbitrator, asking the Parties for their feedback within a deadline set to be May 12, 2015.

16) May 20, 2015: CRCICA urges decision of co-arbitrators

68.
On May 20, 2015, and due to delay of a joint appointment of a presiding arbitrator by the two co-arbitrators, CRCICA urged their decision.

17) May 20, 2015: Dr. ABBAS reports joint decision

69.
On May 20. 2015. and in response of the same day urging email from CRCICA, Dr. ABBAS reported to CRCICA, by email with copies to Mr. GHARIB and the Parties, the joint decision of the co-arbitrators in appointing Dr. Mohamed Mohamed Badran, Professor of Public Law. at (he Law School of Cairo University (here-in-after Dr. BADRAN), to be the presiding arbitrator.

18) June 8, 2015: Mr. GHARIB confirms appointment of Dr. BADRAN

70.
On June 8, 2015, Mr. GHARIB emailed CRCICA confirming joint appointment of Dr. BADRAN, apologizing, at the same time, for the delay of confirmation due to an impediment of his sickness.

19) June 17, 2015: CRCICA advises Dr. BADRAN of his appointment

71.
On June 11, 2015, CRCICA advised Dr. BADRAN of his appointment as presiding arbitrator, and invited his kind person for acceptance of mission and declaration of independence and impartiality.

20) June 18, 2015: Dr. BADRAN's acceptance of mission

72.
On June 18, 2015, Dr. BADRAN submitted his written acceptance of mission, supported with an unqualified declaration of independence and impartiality (dated, June 15, 2015).

21) June 22, 2015: EBC's abjection to appointment of Dr. BADRA N

73.
On June 22, 2015, EBC emailed CRCICA objecting to the appointment of Dr. BADRAN, this is for the fact that his appointment was first made by Dr. ABBAS, alleging therefore a defective procedure of appointment.

22) June 23, 2015: Resignation of Dr. BADRAN

74.
On June 23, 2015, Dr. BADRAN emailed CRCICA his resignation. The letter attached to the email did not contain reasons for the resignation.

23) June 24, 2015: CRCICA invites co-arbitrators for new appointment

75.
On June 24, 2015, CRCICA notified the Parties and their co-arbitrators of the fact of resignation of Dr. BADRAN, and invited co-arbitrators for a joint appointment of a new presiding arbitrator.

24) June 28, 2015: Opening of EBC Bankruptcy Composition proceedings

76.
On June 28, 2015, EBC succeeded in its request for a supervised judicial restructuring in Egypt, through proceedings technically known as "Bankruptcy Composition". On that date, an Egyptian court issued, in favor of EBC, a judgment opening proceedings for Bankruptcy Composition (Cairo Economic Court; First Circuit; Economic Bankruptcy; Request No. 1 of 2015 for Bankruptcy Composition) (here-in-after, the Bankruptcy Composition Judgment).

25) July 22, 2015: EBC's request for suspension

77.
On July 22, 2015, EBC requested CRCICA to suspend the arbitral proceedings in application of Article 741 of the Egyptian Trade Act, and which they find auto-operational due to the issuance of the Bankruptcy Composition Judgment of June 28, 2015. A copy of the judgment was sent to CRCICA, and CRCICA advised all the Parties.

26) July 29, 2015: Claimants' objection to suspension

78.
On July 29, 2015, Claimants objected to the request of EBC for suspension, relying on Article 46 of the Egyptian Arbitration Act; requesting CRCICA to continue the proceedings by appointing a new presiding arbitrator, in application of Article 9(3) of CRCICA Arbitration Rules.

27) July 30, 2015: EBC's insistence on suspension

79.
On July 30, 2015, Mr. Mohamed Samir, and on behalf of EBC, submitted a detailed email defending EBC’s request for the suspension, where he referred to the Debt Agreement’s clause of choice of Egyptian law to render Article 740 of the Egyptian Trade Act applicable.

28) August 3, 2015: CRCICA'scommunication with Dr. IBRAHIM

80.
On August 3, 2015, CRCICA sent Dr. Nader M. Ibrahim (here-in-after Dr. IBRAHIM), a letter by email inquiring about his acceptance to be nominated by CRCICA, among others, for a possible appointment by the Parties to chair the Tribunal of this arbitration case. The letter contained information on the Parties.

29) August 3, 2015: CRCICA'slist of candidates for presidency

81.
On August 3, 2015, CRCICA emailed the Parties and co-arbitrators denying authority to decide suspension of the arbitral proceeding, clearing that the issue falls into the jurisdiction of the Arbitral Tribunal, and which is still under constitution.
82.
Taking into account that the co-arbitrators did not, since CRCICA's letter of June 24, 2015, achieve the new joint appointment of a presiding arbitrator: CRCICA indicated in its emailed letter of August 3, 2015, that it shall take the mission of appointing the presiding arbitrator, in application of its 2011 Arbitration Rules (namely Articles 8(3) and 9(3)), and proceeded to the procedure of list of arbitrators by sending the parties a list of three names, accompanied with their resumes. The list contained Messrs. Taher H. Hozayen, Nader M. Ibrahim and Karim Youssef.
83.
The procedure of list of arbitrators is based on the communication to each of the Parties an identical list containing at least three candidate names; and that within 15 days after receipt of list, each Party to return its own to CRCICA after having deleted the name or names to which it objects, numbering remaining names in order of preference. After the expiration of the 15 days, CRCICA appoints the presiding arbitrator, from among the names approved on the lists, returned to it, and in accordance with the Parties' order of preference.

30) August 4, 2015: Dr. IBRAHIM's acceptance of nomination

84.
On August 4, 2015, Dr. IBRAHIM replied by email to CRCICA declaring his acceptance of nomination under the list procedure and his independence and impartiality. The reply included however a note stating that:

"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".

31) August 10, 2015: Claimants sent CRCICA their list of reference

85.
Claimants sent their list of preference on August 10, 2015; including that of Dr. IBRAHIM as a second preferred name, while neither EBC nor IBRAMAR did respond within the first deadline, even after an extension granted by CRCICA till September 1, 2015

32) September 13, 2015: Appointment of Dr. IBRAHIM

86.
On September 13, 2015, CRCICA sent a letter by email to Dr. IBRAHIM advising him of his appointment by CRCICA to preside the current arbitration, with further details on the case, requesting his written acceptance of mission: this is in addition to a declaration of independence and impartially.

B. Procedure after Constitution of Current Tribunal

87.
The second constituted Tribunal for this arbitration case took place on September 14, 2015, when Dr. IBRAHIM made his acceptance of mission.
88.
It has to be noted that the Tribunal presided by Dr. IBRAHIM was reconstituted two subsequent times, each after the resignation of one of its co-arbitrators. This led to three phases of procedure for the second Tribunal: first, procedure before resignation of Dr. ABBAS; second, procedure after resignation of Dr. ABBAS; and third, procedure after resignation of Mr. GHARIB.

First: Procedure before Resignation of Dr. Abbas

33) September 14, 2015: Acceptance of Appointment by Dr. IBRAHIM

89.
On September 14, 2015, Dr. IBRAHIM faxed CRCICA his written acceptance of mission associated with a declaration of independence and impartiality. The declaration did not contain any disclosure item of possible conflict of interests; it did not namely include the note which was mentioned in his earlier email of August 3, 2015 to CRCICA. The acceptance and declaration were re-sent by CRCICA to the Parties by email on September 17, 2015.

34) September 22, 2015: First Procedural Order

90.
On September 22, 2015, Dr. IBRAHIM, the new Presiding Arbitrator, and after email deliberations, issued the first Procedural Order and which:

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.

91.
The first Procedural Order clearly stated that, absence expression of views by the Parties on the draft agenda shall be construed in granting discretionary power to the Tribunal, in further administration of the proceedings.

35) September 28, 2015: Challenge of Dr. IBRAHIM

92.
On September 28, 2015, EBC emailed CRCICA challenging the appointment of Dr. IBRAHIM. The Challenge was based on two main grounds:

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.

93.
EBC submitted many documents related to the ad hoc arbitration case in support of their Challenge (e.g., minutes of sessions: notices of sessions etc.). The documents did not include any of the Procedural Orders issued in the case.

36) October 1, 2015: Inviting Dr. IBRAHIM and Claimants to comment

94.
On October 1, 2015, CRCICA sent Dr. IBRAHIM and Claimants a formal letter acknowledging receipt of Challenge, and referring to Article 13(6) of the 2011 CRCICA Arbitration Rules, and which gives the Parties the right of mutual removal of the challenged arbitrator in absence of his resignation, or otherwise referring the Challenge to an Ad Hoc Tripartite Committee, to be constituted specifically for the settlement of the Challenge.
95.
In its letter of October 1, 2015, CRCICA gave both, the challenged Presiding Arbitrator (i.e., Dr. IBRAHIM) and the Claimants, the chance to comment on the Challenge, on a date not later than October 14, 2015.

37) October 1, 2015: Comments of Dr. IBRAHIM

96.
On same day of the email advising on his Challenge, i.e., October 1, 2015, Dr. IBRAHIM replied to CRCICA, objecting to the Challenge on the basis of two grounds:

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).

38) October 4, 2015: Resignation of Dr. ABBAS

97.
On October 4, 2015, Dr. ABBAS, the Claimants’ co-arbitrator, emailed CRCICA with his resignation. The resignation did not express reasons, EBC highlighted afterwards the fact that Dr. ABBAS rejoined the law firm that defends the Claimants in this arbitration.

Second: Procedure after resignation of Dr. Abbas

39) October 7, 2015: Dr. IBRAHIM's email to CRCICA and Parties

98.
On October 7, 2015, Dr. IBRAHIM emailed CRCICA, copying the Parties, and colleague co-arbitrator, Mr. GHARIB, particularly advising the Parties that he welcomes any mutual removal of his chairmanship, and in absence of which, he shall hold to his appointment and requests reference of the Challenge to an Ad Hoc Tripartite Committee. Dr. IBRAHIM attached to his email new scanned copies of the authentic ad hoc arbitration Procedural Orders, first attached is his comments of October 1, 2015.

40) October 11, 2015: Appointment of Dr. SELIM

99.
On October 11, 2015, Claimants sent CRCICA an email appointing Dr. Ismail Ahmed Abdel-Wahab Selim (here-in-after Dr. SELIM), as their co-arbitrator, a letter holding contact details of Dr. SELIM was also sent to CRCICA, holding same date.

41) October 12, 2015: EBC's offer of joint removal of Dr. IBRAHIM

100.
On October 12, 2015, EBC emailed CRCICA advising their offer of a joint removal of Dr. IBRAHIM, otherwise they insist on his Challenge. The email offer was forwarded by CRCICA to Dr. IBRAHIM and rest of the Parties.

42) October 17, 2015: Claimants' comments on Challenge

101.
On October 17, 2015, Claimants refused joint removal of Dr. IBRAHIM, and commented in favor of dismissal of Challenge, on the following rephrased grounds:

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.

43) October 19, 2015: EBC's insistence on Challenge

102.
On October 19, 2015, EBC emailed CIRCICA insisting on their Challenge of Dr. IBRAHIM, considering his comments as further support of their point of view; more particularly that Dr. IBRAHIM violated basic rules of arbitration in the previous ad hoc arbitration, rendering him "unqualified", and therefore not trustworthy for chairing their arbitration case.

44) October 22, 2015: Second Procedural Order

103.
Counsels of the Parties, namely EBC and the Claimants, engaged after the Challenge of the Presiding Arbitrator, and before October 22, 2015, into uncontrolled exchange of argumentative emails. It was not clear whether these emails were part of the procedure. So, the Tribunal felt the need to interfere to keep order, and to improve the time management of the ease until the expected decision on the Challenge is made; for that purpose a Second Procedural Order was issued on October 22, 2015.
104.
The Second Procedural Order of October 22, 2015 aimed at:

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.

105.
Second Procedural Order also stated that absence expression of the views by the Parties shall entitle the Tribunal discretionary power.

45) November 11, 2015: Third Procedural Order

106.
On November 11, 2015, a third Procedural Order was issued and notified to the Parties, ordering:

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.

46) December 7, 2016: Fourth Procedural Order

107.
On December 7, 2015, and due non-observance of the third Procedure Order by the Respondents, a fourth Procedural Order was issued and notified to the Parties ordering counsel of Respondents to:

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.

47) January 21, 2016: Decision of the Ad Hoe Tripartite Committee

108.
On January 21, 2016, His Excellency CRCICA Director notified the members of the Tribunal and the Parties with the unanimous decision of the Ad Hoc Tripartite Committee in dismissing the Challenge of the Presiding Arbitrator for "... failure to demonstrate presence of fuels or circumstances of sufficient gravity as to call into question Dr. IBRAHIM's impartiality".

48) January 28, 2016: Fifth Procedural Order

109.
On January 28, 2016, Presiding Arbitrator, and after email consultation with rest members of Tribunal, issued the filth Procedural Order and which regulated:

a) relation with previous procedural orders;

b) communications;

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.

110.
Fifth Procedural Order included an invitation for the views of the Parties on its Procedural Calendar, to expressed, within five days of its issuance; these views were never made.
111.
Under fifth Procedural Order, a calendar was set to be as follow:

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).

112.
It was also decided under fifth Procedural Order for the arbitral proceedings to be closed on April 24, 2016, and for the deliberations of the Tribunal to take place on May 16, 2016, 11:00 a.m., in CRCICA Headquarters. The Tribunal did no mention the date of issuance of the final award, to be advised later to the Parties, retaining its authority on any needed modification.

49) February 21, 2016: Submission of Statement of Claim

113.
On February 21, 2016, Claimants sent the Tribunal an electronic copy of its Statement of Claim, a hard copy was delivered to CRCICA, next day.
114.
The Claimants sought to:

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.

50) March 10, 2016: Resignation of Mr. GHARIB

115.
Mr. GHARIB, co-arbitrator of Respondents, emailed CRCICA on March 10, 2016, his resignation for personal and medical excuses, advising that he was appointment by IBRAMAR (the second Respondent). Mr. GHARIB thanked both the Tribunal and CRCICA for their cooperation.
116.
It has to be noted that Mr. GHARIB was originally nominated by EBC, on April 1, 2015, and IBRAMAR did not object to his nomination, leading CRCICA to consider himself appointed by the two Respondents. The Original nominee of IBRAMAR was Mr. EL-GAMAL, whose nomination was made on February 9, 2015.
117.
CRCICA advised all the Parties of the resignation of Mr. GHARIB, on March 13, 2016, with a copy of his reasoned email.
118.
The Tribunal highlights here that IBRAMAR did not express any comment on the reference of Mr. GHARIB to them in his email of resignation, notwithstanding their receipt of a copy thereof.

Third: Procedure after resignation of Mr. Gharib

51) March 13, 2016: CRCICA's notice to both Respondents for joint appointment

119.
On March 13, 2016, and in their advice to the Tribunal and Parties of the resignation of Mr. GHARIB, CRCICA referred to CRCICA Arbitration Rules, namely Article 14, and invited Respondents to jointly achieve a new appointment of their co-arbitrator, with a deadline due April 12, 2016, failing which entitles any party to request an appointment by CRCICA, in application of Article 9(2) of same Rules.

52) March 21, 2016: Submission of Statement of Defense

120.
On March 21, 2016, EBC submitted to CRCICA a Statement of Defense, and took the occasion to deny relation with IBRAMAR. The Tribunal did not receive from IBRAMAR any submissions.
121.
Statement of Defense was based on:

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.

122.
Statement of defense was supported with a Docket of Exhibit, containing:

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.

123.
This is the first time that one of the Parties, here EBC, makes reference to a litigation in US courts, related to the arbitration case in hand.
124.
It has to be noted that EBC, and later the Claimants, referred to two different Orders issued by Eastern District of Louisiana Court. First Order is dated April 7, 2015 and which was submitted by EBC attached to its Statement of Defense. The second Order is dated August 13, 2015, and which was submitted by Claimants attached to their Reply to the Statement of Defense, as shall be heighted later. The second Order is the one which contains a clearer picture of the relations behind the Debt Agreement, dated March 19, 2014, and henceforth contributes to this arbitration.
125.
Both Orders used by EBC and the Claimants are made during the same Civil Case, No. 14-879, between Floral Shipping Ltd. and EBC. None of them is the final judgment of the US court on the case between Floral Shipping Ltd. and EBC. Such final judgment was neither raised nor discussed by any of the Parties.
126.
It has also to be noted that March 21, 2016 is also crucial for the Tribunal actual knowledge of the Bankruptcy Composition Judgment, dated June 28, 2015, since this is the first time that FBC submits to the Tribunal a copy thereof. Though EBC alleged that such a copy was previously sent to CRCICA attached to an email: this never before forwarded to the Tribunal by CRCICA. The Tribunal wished to avoid such confusion and loss of important arguments, when it issued earlier Procedural Orders ordering the Respondents not to raise arguments in emails; to respond to the Notice of Arbitration, and to report earlier communications in a written memorandum to be submitted to the Tribunal. Such orders did not receive timely compliance by EBC.

53) March 29, 2016: Request by Claimants for PoA of Mr. NASR

127.
On March 29, 2016, Claimants requested the Tribunal to order counsel of Respondents. Mr. NASR, to submit his Power of Attorney, and which was not yet submitted notwithstanding Procedural Orders Nos. 3 and 4; and expressed discontent of the conduct of counsel of Respondents and which they qualified as "tactics of delay".
128.
Until March 29, 2016, Claimants considered Mr. NASR as counsel of both Respondents. EBC and IBRAMAR. though Mr. NASR was only acting on behalf of FBC, and never created a misrepresentation to the contrary.

54) March 29, 2016: Response of Presiding Arbitrator

129.
On same day of the email request of Claimants of March 29, 2016; Presiding Arbitrator responded by an email, confirming receipt of request, and that he shall discuss the issue within the Tribunal once reconstituted, bearing in mind vacancy of the position of a co-arbitrator for Respondents, and that intentional banning delay of procedure could be subject to claim of damages.
130.
In the same responding email, of March 29, 2016, the Presiding Arbitrator asked both sides of the Parties to adhere to previous Procedural Orders, namely in submitting any Powers of Attorney previously ordered, and took the chance in ordering the Secretary of the Tribunal to send all previous Procedural Orders to the Board Chairmen of both Respondents, by courier against receipt (and which was carried out on April 3, 2016), and advised the same to the Claimants.

55) April 3, 2016: Reply to Statement of Defense

131.
On April 3, 2016, Claimants submitted their Reply to Statement of Defense, supported with a Docket of Exhibits.
132.
Arguments of Reply to Statement of Defense, covered:

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.

133.
The Reply included a new request for relief: to order Respondents to pay the Claimants supplementary indemnity, amounting to 2% of the due amount per annum, starting from due date until date of payment.
134.
The Reply was supported with a Docket of Exhibits containing: seven factual exhibits, and seventeen legal exhibits.
135.
Many of the factual exhibits were not new to the proceedings; the Tribunal highlights the most essential among them for its decision, and which were:

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)..

56) April 3, 2016: Notice to Respondents by Claimants

136.
On April 3, 2016, and by fax and email. Claimants put both Respondents of this arbitration case on legal notice of:

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.

137.
A copy of the legal notice of April 3, 2016, was also emailed to the Tribunal and the Panics on April 4, 2016.

57) April 6, 2016: Nomination of Dr. EL-MELIGY

138.
On April 6, 2016, EBC sent an email addressed to CRCICA, nominating Dr. Osama Ahmed El Meligy, Professor of Civil and Commercial Procedure Law at the Law School of Cairo University, as their co-arbitrator (here-in-after Dr. EL-MELIGY).
139.
The Tribunal carefully uses the qualification of "nomination" and not "appointment": this is since the choice of Dr. El-MELIGY was not made jointly by both Respondents. The Tribunal notices that EBC was also careful in its words, where they also used the verb "nominate".

58) April 7, 2016: Claimants' request of approval by IBRAMAR

140.
On April 7, 2016, Claimants emailed and faxed CRCICA requesting that the nomination of Dr. EL-MELIGY to jointly be made by both Respondents. EBC and namely IBRAMAR, fearing subsequent objection by IBRAMAR. Claimants particularly referred to Articles 9(2) and 10(1) of CRCICA Arbitration Rules, under which if joint appointment is not achieved after thirty days of the resignation of Mr. GHARIB, appointment shall be made by CRCICA. Claimants calculated the deadline to be that of April 10, 2016.

59) April 17, 2016: Dr. EL-MELIGY's acceptance

141.
On April 17, 2016, Dr. El-MELIGY accepted nomination and declared his impartiality, and independence; a copy of which was sent by CRCICA to the Parties and the rest members of the Tribunal by email on April 19, 2016.

60) April 18, 2016: Rejoinder

142.
On April 18, 2016, EBC submitted to CRCICA their rebuttal to the Claimants' last submission of April 3, 2016. The Tribunal calls this rebuttal a "Rejoinder", using the language of its Procedural Order No. 5 of January 28, 2016, noting that EBC used instead the terminology of "Reply to Claimants' last memorandum".
143.
The Rejoinder, though received by CRCICA on April 18, 2016, was dated April 17, 2016, and supported with a Docket of Exhibits.
144.
It has to be noted that counsel of EBC did not follow the instructions of the Tribunal on formats, numbering, filing and e-coping and which were mentioned in details in Procedural Order No. 5 of January 28, 2016.
145.
Rejoinder contained the main following arguments:

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.

146.
Rejoinder was supported by a Docket of Exhibits containing:

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).

147.
Rejoinder therefore concluded to EBC's request for:

a) Nullity of the Debt Agreement and Arbitration Clause.

b) Extinction of the Arbitration Clause.

c) Suspension of Arbitration.

61) April 22, 2016: Request for clarification

148.
On April 22, 2016, Mr. IBRAHIM, under his capacity as Presiding Arbitrator, emailed His Excellency CRCICA Director, with copies to all the concerned Parties, requesting clarification on the latest constitution of the Tribunal, namely whether CRCICA confirms the nomination of Dr. EL-MELIGY, to be a co-arbitrator for both Respondents, in application of CRCICA Arbitration Rules, Article 9(2).

62) April 26, 2016: Appointment of Dr. EL-MELIGY

149.
Noting that IBRAMAR has neither responded nor objected to appointment of Dr. EL-MELIGY as its co-arbitrator, and that IBRAMAR may not be assumed to have approved appointment of Dr. EL-MELIGY; and given multiparty aspect of current arbitration; His Excellency CRCICA Director used his authority under CRCICA Arbitration Rules, namely Art. 10(3), and reconstituted, on April 26, 2016, the whole Tribunal, appointing Dr. EL-MELIGY as both Respondents' co-arbitrator, and reconfirming earlier appointments of the rest members.

63) May 9, 2016: CRCICA reminds EBC's counsel to submit PoA

150.
On May 9, 2016, Mr. OSMAN, and on behalf of CRCICA administration, sent an email to Mr. NASR, acting counsel of EBC, reminding his kind person that CRCICA did not receive a copy of his Power of Attorney.

64) May 11, 2016: PoA of Mr. NASR

151.
On May 11, 2016, Mr. OSMAN advised the Tribunal and Parties of an email response from Mr. NASR, and which included an attached Power of Attorney in representation of EBC. Mr. NASR did not copy the Tribunal in its original email to Mr. OSMAN, and the forward email of Mr. OSMAN did not contain a copy of the Power of Attorney of Mr. NASR.

65) May 16, 2016: Request of a hearing by Claimants

152.
On May 16, 2016, Mr. OSMAN advised the Tribunal and Parties that Claimants submitted a request, dated May 15, 2016, for a hearing, in application of Article 17(3) of CRCICA Arbitration Rules.

66) May 16, 2016: Sixth Procedural Order

153.
On May 16, 2016, the Tribunal issued its Procedural Order No. 6, and which

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.

154.
Presiding Arbitrator, on same day and by email notified to all, ordered the Secretary of the Tribunal to send a stamped hard copy of Procedural Order No. 6, by courier to the Board Chairman of second Respondent, i.e., IBRAMAR.

67) May 22, 2016: EBC's request for adjournment

155.
On May 22, 2016, Mr. OSMAN, Secretary of the Tribunal, advised the Tribunal and Parties of the receipt of an email by EBC requesting an adjournment of the date of the hearing, for reasons of convenience.

68) May 23, 2016: Invitation for views on adjournment

156.
On May 23, 2016, the Presiding Arbitrator advised all, by email, of the possibility for adjournment and requested their views thereon within two days. On the same day, EBC confirmed acceptance of an adjournment of at least two days. Second Respondent. IBRAMAR never responded.

69) May 29, 2016: Seventh Procedural Order

157.
On May 29, 2016, the Tribunal issued its Procedural Order No. 7, and which accepted the request of EBC for adjournment; determined the new date to be June 14, 2016; and added to Procedural Order No. 6 further organization provisions.
158.
The Presiding Arbitrator ordered the Secretary of the Tribunal, Mr. OSMAN, on same day (i.e., May 29, 2016) and by an email advised to all, to send a signed hard copy of Procedural Order No. 7, by courier to the attention of the Board Chairman of second Respondent, i.e., IBRAMAR.

70) June 14, 2016: The Hearing

159.
On June 14, 2016, a hearing took place at CRCICA, and which attended by all the Parties with the exception of second Respondent, i.e., IBRAMAR.
160.
The hearing started 13:10 and finished around 16:00, Counsels of Claimants and counsel of EBC submitted copies of their Powers of Attorney, and which were subject to comments from each side for fear of lack of authority. The Tribunal suggested new Powers of Attorneys, with possible letters from the authorized representatives of the Parties.
161.
Counsels of Claimants submitted a copy of recent legal notification (in Arabic), dated April 24, 2016, served on both Respondents, EBC and IBRAMAR, by a court bailiff, putting both on notice of the arbitration proceedings; requesting both to submit copies of their Commercial Registers; Powers of Attorney of their lawyers; and considered them bearing consequences of their non-participation to the arbitration.
162.
This was the first time that the Tribunal receives a copy of the Powers of Attorney of both, Claimants and EBC, and which were:

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.

163.
Hearing was divided into two parts, each addressed a different category of issues, first the procedural issues and then the substantive ones, with a tea-break in between.
164.
As regards EBC's procedural arguments, counsel of EBC raised:

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.

165.
Tribunal invited counsel of EBC to answer the following procedural questions:

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).

166.
In response to questions raised by the Tribunal, counsel of EBC held to the following:

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.

167.
According to counsel of EBC, the basis for the application of Article 741 of the Egyptian Act is its mandatory nature, and that it is part of the law chosen by the parties under their Debt Agreement.
168.
Regarding extent of suspension, counsel of EBC commented that suspension should cover all aspects of this arbitration, namely the Tribunal do not enjoy authority to quantify damages against EBC, i.e., refusing an attenuated concept of the suspension.
169.
Counsels of Claimants also replied to procedural objections of EBC. They namely:

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.

170.
Counsels of Claimants firmly objected to the allegation of waiver of Arbitration Clause, and explained in detail the related EBC litigation in US courts, and namely that they were brought to that litigation as third party and that they did not bring a claim against EBC in the US courts regarding the Debt Agreement.
171.
Counsels of Claimants highlighted that counsel of EBC adopted a contradicting position regarding Debt Agreement, sometimes holding to its existence and then to its non-validity.
172.
Tribunal invited counsels of Claimants to comment on same procedural questions already addressed to counsel of Respondents.
173.
Counsels of Claimants held to:

a) validity of Arbitration Clause;

b) non-waiver of Arbitration Clause; and

c) non-suspension of arbitration, at least against IBRAMAR.

174.
As regards the extent of suspension - in case adopted by the Tribunal - counsels of Claimants were in favor of an attenuated such suspension, allowing the Tribunal to decide on breach of Debt Agreement, and on quantification of damages resulting from that breach; limiting the suspension to claims of enforcement nature.
175.
Counsels of Claimants alleged procedural bad faith of Respondents, and requested further reparation thereof. Counsel of EBC objected to this allegation, referring to the foreign cause of delays committed by other resigning arbitrators, and who participated in earlier stages of these proceedings; highlighting EBC's cooperation with the Tribunal within their entitled right of defense.
176.
Tribunal asked counsels of Claimants to clarify procedural history of this arbitration, before the appointment of current Presiding Arbitrator in order to ascertain whether either or both Respondents were to be blamed for any delay at that phase.
177.
Tribunal also asked counsels of Claimants to submit further evidence to connect the Debt Agreement to IBRAMAR.
178.
As regards substantive aspects of Hearing; counsel of claimants held to:

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.

179.
Counsel of EBC objected to validity of Debt Agreement due to its signature by incompetent person, Mr. Mohamed Mohamed Moomen; while counsels of Claimants held to validity of this agreement due to the fact that it is signed by the competent person on behalf of both of Respondents.
180.
Tribunal asked counsel of EBC whether Mr. Mohamed Mohamed Moomen used to work for EBC at the time of signing the Debt Agreement, he replied to the affirmative but objected to the authority of Mr. Mohamed Mohamed Moomen to sign the Debt Agreement.
181.
Tribunal asked counsels of the Parties for their comments on the characterization of Debt Agreement, and about status of second Respondent, IBRAMAR, under the Debt Agreement.
182.
Counsels of Claimants held to validity of Debt Agreement without giving it any characterization; and considered second Respondent, IBRAMAR, as a co-debtor, under the Debt Agreement.
183.
Counsel of EBC did not give characterization to Debt Agreement either, but stated that original debtor is EBC, and that IBRAMAR has entered Debt Agreement as a guarantor, holding at same time to invalidity of Debt Agreement, and his non-admission of amount of Debt mentioned in the Debt Agreement.

71) June 14, 2016: Eighth Procedural Order

184.
On June 14, 2016, and subsequent Hearing session, and on same day, the Tribunal issued its Procedural Order No. 8, and which:

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).

72) June 21, 2016: EBC's authorization to Mr. NASR

185.
On June 21, 2016, Mr. NASR, emailed Presiding Arbitrator and Secretary of Tribunal, advising of express authority to act in this arbitration, attaching a letter issued by Mr. Ibrahim Moomen, Board Chairman to this effect on same day. The Secretary of the Tribunal forwarded this email and attachment to the rest members of the Tribunal and Parties on June 22, 2016.
186.
It has to be noted that though Mr. Ibrahim Moomen is also the Board Chairman of IBRAMAR, he did not provide Mr. NASR with the authority to represent IBRAMAR in the case. EBC's letter of June 21, 2016 assured the Tribunal that IBRAMAR was at-least in actual awareness of the recent updates on this Arbitration.

73) June 25, 2016: Post-Hearing Brief of Claimants

187.
On June 25, 2016, Claimants submitted their Post-Hearing Brief, supported with a Docket of six factual and four legal Exhibits, raising following arguments:

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.

188.
Claimants, and in compliance to the Procedural Oder No. 8 of June 14, 2016, quantified their costs and expenses and which they incurred due to this arbitration, in the amount of USD 192,258 (one hundred ninety two thousand and two hundred and fifty eight United States of America dollars). Claimants submitted in support of the claim of this amount:

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.

189.
Claimants' Post-Hearing Brief retained original relief requested, with the exception of one major issue. Claimants, and for the first time, also requested suspension of proceedings against EBC, without explaining whether this is based on Article 741(1) or not.
190.
It has to be noted however that Claimants requested at same time that the Tribunal to decide that "Respondents" breached Debt Agreement. Claimants used plural of "Respondent" and did not exclude EBC, in this regard. Therefore, the request of Claimants for suspension against EBC is not identical to that submitted by EBC.

74) July 4, 2016: Request of extension

191.
On July 4, 2016, Claimants advised the Tribunal, by email, that the 5th of July shall be a public holiday, and which shall ex officio extend date of submission of Respondents' Post-Hearing Brief to that of July 10, 2016; the fact that shall leave Claimants with only one day for their Reply, and which shall be due on July 11, 2016. Therefore, Claimants requested an extension of one week for their Reply, to be due on July 18, 2016.

75) July 5, 2016: EBC's Post-Hearing Brief

192.
On July 5, 2016, EBC emailed Presiding Arbitrator and Secretary of the Tribunal with a soft copy of its Post-Hearing Brief, advising delivery of the hard copy to take place on next Sunday (i.e., July 11, 2016). Presiding Arbitrator forwarded this email and its attachment to the rest members of Tribunal and Parties, on July 6, 2016.
193.
EBC's Post-Hearing Brief was submitted in hard copies to CRCICA on July 11, 2016, attached to it the same copy already submitted by Claimants for the Louisiana Court Order dated August 13, 2015, with added highlights on some of its parts.
194.
The EBC's Post-Brief addressed:

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.

195.
EBC concluded therefore to the following:

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.

76) July 6, 2016: Ninth Procedural Order

196.
Bearing in mind delay by the Parties in submitting a verbatim transcript of the Hearing that took place on June 14, 2016; in addition to Article 33(3) of the Arbitration Act No. 27 of 1994, and which requires at least summary minutes for arbitral sessions; and in response to the email request for extensions made by counsel of Claimants; the Tribunal issued, on July 6, 2016, Procedural Order No. 9, and which:

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).

77) July 18, 2016: Claimants' Reply to Post-Hearing Brief of EBC

197.
On June 18, 2016, Claimants submitted their Reply to Post-Hearing Brief of Respondents. This Reply was also supported with a Docket of Exhibits containing: 11 factual Exhibits and four legal Exhibits.
198.
Reply of Claimants included following arguments:

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.

199.
The Tribunal highlights that the Claimants submitted essential evidence to substantiate their arguments and which were:

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).

200.
Claimants insisted therefore on their final requests already made in their Post-Hearing Brief.
201.
ft has to be noted that the Tribunal did not receive from any of the Respondents any further Replies.

78) July 28, 2016: Transcript of the Hearing

202.
On July 28, 2016, Claimants emailed the Tribunal and all Parties a verbatim transcript of the Hearing that took place on June 14, 2016. The transcript was not used by the Tribunal in this award due to its late submission and sufficiency of earlier summary of the Hearing.

79) August 10, 2016: First draft award and Deliberations

203.
Presiding Arbitrator prepared a first draft award and which was used by members of the Tribunal during their deliberations that took place at CRCICA, on August 10, 2016.
204.
Deliberations led to the need of amendments to the first draft award, and which was left to the Presiding Arbitrator, with a date for signature of a final award to take place on August 17, 2016.

80) August 14, 2016: Second draft award

205.
On August 14, 2016, Presiding Arbitrator emailed members of the Tribunal, and CRCICA, a second draft copy of the award, to be issued by majority vote. The draft contained the dissenting arguments of the minority.

81) August 14, 2016: Decision of Dr. EL-MELIGY not to sign

206.
On August 14, 2016, the two co-arbitrators received the objection of Dr. EL-MELIGY to sign the award in its latest draft. According to Dr. EL-MELIGY, the latest draft changes what was unanimously decided by all the arbitrators on August 10, 2016.

82) August 17, 2016: Third draft award

207.
On August 17, 2016, and in application of Article 43(1) of the Egyptian Arbitration Act, the two co-arbitrators decided to add the reasons of the objection to sign by Dr. EL-MELIGY, and to send a third draft to Dr. El-MELIGY, with an email copy to CRCICA, and decided to adjourn signing of the award to August 18, 2016.

83) August 18, 2016: Signature of final award against IBRAMAR

208.
On August 18, 2016, a final award against IBRAMAR, with suspension of arbitral proceedings against EBC, was signed by the majority members of Tribunal, and delivered to CRCICA. Dr. EL-MELIGY did not attend the meeting for signature, but phoned the Tribunal advising on the draft award, and that he shall consider possible signature after reviewing the award. Majority sent him a copy, same day, by email.

IV. REASONS

209.
Reasons of this award are based on the application of: first, agreement of the parties (i.e., in observance of their party autonomy), and then applicable laws to issues in question, determined by Egyptian rules of conflict of laws, due to the international aspect of the dispute in question.
210.
This award decides finally against IBRAMAR, while suspending the arbitral proceedings against EBC; therefore the reasons of this award shall not cover any claim or defense raised against or by EBC, with the exception of EBC's defense of suspesnion.
211.
Since this award is made by the majority members of the Tribunal, all supporting reasons are those of the majority, unless otherwise stated.

A. ISSUES OF Procedure

212.
Issues of procedure in this arbitration can be phrased in the following sequential questions: (1) What is the characterization of this Arbitration? (2) Does counsel of EBC represent IBRAMAR? (3) Is IBRAMAR aware of the arbitral proceedings? (4) Is the Arbitration Clause signed by IBRAMAR? (5) Was the Arbitration Clause waived against IBRAMAR? (6) Is the Tribunal validly constituted? (7) Did IBRAMAR commit unlawful harming procedural conduct? (8) Why should the arbitral proceedings only be suspended against EBC?

1) What is the characterization of this Arbitration?

213.
Current arbitration case concerns a dispute over an amicable settlement of debts, resulting from hire of vessels, for worldwide carriage of goods, between Companies of different nationalities and places of business. Therefore this arbitration belongs to the category of: "International Commercial Arbitration", under both Articles 2 and 3 of the Egyptian Arbitration Act No. 27 of 1994.
214.
First, this arbitration is commercial, since it relates to transfer of economic values, i.e., hire of vessel in return of remuneration: this is sufficient to render the arbitration commercial under, the economic concept of Article 2 of the Egyptian Arbitration Act.
215.
Second, by being a dispute related to debts due to hire of vessels for worldwide carriage of goods, the arbitration relates to international trade (economic criterion); and by being a dispute between Companies of different places of business (legal criterion), the arbitration includes a foreign element. Therefore, this arbitration satisfies the requirements for internationality of the arbitration, under Article 3 of the Egyptian Arbitration Act. Article 3 requires the satisfaction of the economic criterion and at least one of the cases of the legal criterion, combined; and both are satisfied in the current arbitration.
216.
Substance of dispute in the current arbitration is also commercial under the Egyptian Trade Act No. 17 of 1999; since hire of vessels for worldwide carriage belongs to transactions related to commercial maritime navigation (Article 6(b)).
217.
It is therefore the unanimous decision of the Tribunal that the current arbitration belongs to the category of international commercial arbitration, in terms of the Egyptian Arbitration Act, and its substance is commercial, in terms of Egyptian Trade Act.

2) Does counsel of EBC also represent IBRAMAR?

218.
Claimants alleged that counsel of EBC, i.e., Mr. Islam Mahmoud Nasr (here-in-after Mr. NASR), represents both Respondents, and that denial of Mr. NASR of his representation of second Respondent, i.e., IBRAMAR, contradicts an earlier such representation by conduct, in addition to the fact that both Respondents are sister Companies, sharing same person as Board Chairman. i.e., Mr. Ibrahim Moomen.
219.
It has to be noted that Mr. NASR used to refer to his kind person by the names of Islam Mahmoud, or Islam Sharawy; and the Tribunal decided to refer to his kind person by his family name NASR, and which appears in his Power of Attorney, and which was submitted to Tribunal, in Hearing session of June 14, 2016.
220.
Mr. NASR objected to the allegation of his representation of both Respondents, EBC and IBRAMAR; while insisting that both Respondents are different juridical persons, and that he is only authorized to represent first Respondent. EBC; and that he never acted on behalf of second Respondent, IBRAMAR, nor did he created such misrepresentation.
221.
According to the unanimous conviction of the Tribunal, Claimants did not provide sufficient evidence to the alleged fact that Mr. NASR represented second Respondent, IBRAMAR, by conduct; also their argument of the sister Companies status was never elaborated in details to the extent to rebut the basic rule of legal autonomy of each Company.
222.
It is therefore, the unanimous decision of this Tribunal that Mr. NASR, counsel of EBC is not considered tacitly or expressly in representation of IBRAMAR. Henceforth, the admission can be concluded from any representation made by Mr. NASR, to be used against IBRAMAR.

3) Is IBRAMAR aware of the arbitral proceedings?

223.
It is the unanimous conviction of this Tribunal however that IBRAMAR chose to follow a negative procedural position in this arbitration with full awareness of its related arbitral proceedings. This conclusion is based on the following:

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).

224.
Therefore, it is the unanimous conviction of this Tribunal that current arbitration was not carried out in absence of IBRAMAR; it was the decision of IBRAMAR not to participate thereto.

4) Is the Arbitration Clause signed by IBRAMAR?

225.
EBC argued against invalidity of the Arbitration Clause of Debt Agreement due to allegation of incapacity of its signing person. Majority of this Tribunal refuses to discuss this argument in this award, since they suspend proceedings against EBC.
226.
IBRAMAR did not appear in these proceedings to use a similar argument on the validity of the Arbitration Clause, taking into account similarity of facts.
227.
Board Chairman of IBRAMAR at lime of signature of the Debt Agreement, and which includes the Arbitration Clause, was: Mr. Ibrahim Mohamed Mohamed Moomen; while, his brother, Mr. Mohamed Mohamed Mohamed Moomen, and who signed the Debt Agreement, was a member of the Board.
228.
According to Claimants, Mr. Mohamed Mohmed Mohamed Moomen was authorized under Company law, namely Articles 55, 56 and 57 of Company Law, No. 159 of 1981, to sign an Arbitration Clause; this is in addition to his authority to do so under the IBRAMAR's Commercial Register. Claimants also relied on constant Egyptian jurisprudence; case-law and principle of "Estoppel".
229.
It has to be noted that IBRAMAR's Commercial Register indicates that Mr. Ibrahim Mohamed Mohamed Moomen is IBRAMAR's Board Chairman, but also refers to the authority of Mr. Mohamed Mohamed Mohamed Moomen, and who is also a Board member, to sign individually or collectively with Mr. Ibrahim Mohamed Mohamed Moomen to bind IBRAMAR. The permitted authority covers transactions of disposition, namely sale, purchase and providing security.
230.
A copy of the Commercial Register of IBRAMAR was submitted by Claimants on July 18, 2016 (See: C-4).
231.
It is to be noted that authority of a Board member to sign on behalf of a Company is a matter of capacity; and capacity is subject to the law of principle place of business of the Company, i.e., this is known technically as lex societatis (Article 11(2) of the Egyptian Civil Act). Here, it is the Egyptian law, since IBRAMAR is an Egyptian Stock Company.
232.
Under Egyptian Arbitration Act (namely, Article 11), the capacity to sign an arbitration agreement requires satisfaction of a high level of such capacity, and which is the capacity to dispose of rights.
233.
Under Egyptian Company law, capacity to dispose of rights by Egyptian Joint Stock Company is enjoyed by the Board Chairman or the authorized Board member, within the object of Company (See, Wali, Fathi, Arbitration, Monsha it Elma arif, Alexandria, 2014, p. 128). When this rule is applied to the current dispute, majority of the Tribunal finds that the signature of Mr. Mohamed Mohamed Mohamed Moomen of the Debt Agreement and which includes the Arbitration Clause comes in full adherence to the Egyptian Arbitration and Company laws.
234.
Though Mr. Mohamed Mohamed Mohamed Moomen is not the Board Chairman of IBRAMAR, he is entitled under IBRAMAR's Commercial Register to sign individually or collectively with the Board Chairman, on behalf of IBRAMAR, on matters, inter alia, providing security.
235.
IBRAMAR entered into the Debt Agreement to provide its patrimony as a security, rendering them as several and joint co-debtor, this type of transaction falls into the object of IBRAMAR.
236.
Even in doubts of the authority of Mr. Mohamed Mohamed Mohamed Moomen to sign an arbitration clause on behalf of IBRAMAR. any contrary conclusion shall be against the transnational principle of "Estopel", very well established in international commercial arbitration, and clearly supported by the Egyptian Company law, namely Articles 55, 56 and 57, and which the Claimants rightfully highlighted.
237.
Therefore, it is the majority decision of this Tribunal that the Arbitration Clause of the Debt Agreement, dated March 19, 2014, was validly concluded by Mr. Mohamed Mohamed Mohamed Moomen on behalf of IBRAMAR; and therefore the Tribunal enjoys jurisdiction to hear the case.

5) Was the Arbitration Clause waived against IBRAMAR?

238.
According to EBC, even when the Arbitration Clause of Debt Agreement found valid, it was terminated by waiver when Claimants appeared in Louisiana Court (US), referring to the ease of Floral Shipping LTD v. Egyptian Bulk Carriers SAE (here-in-after Louisiana Case), where CARGILL invoked a set-off in a dispute related to the Debt Agreement dated March 19, 2014. According to EBC, this waiver deprives the Tribunal from jurisdiction. Majority of the Tribunal decided not to discuss this argument, since it relates to the proceedings against EBC, and which the majority of this Tribunal decided to suspend.
239.
However, majority of the Tribunal highlights that the Louisiana Case did not include IBRAMAR as Claimant or Respondent, and therefore the Arbitration Clause of the Debt Agreement, dated March 19, 2014, is not affected with whatever happened in the relation between CARGILL and EBC in that case.
240.
Therefore, majority of the Tribunal decides non-waiver of the Arbitral Clause of Debt Agreement, dated March 19, 2014, in the relation of Claimants and IBRAMAR, confirming to the jurisdiction of the Tribunal to hear the claims against IBRAMAR, within the limits of the said clause.

6) Is the Tribunal validly constituted?

241.
EBC alleged non-validity of the constitution of Tribunal. This is in two times: first, when EBC challenged the Presiding Arbitrator, on September 28, 2015; and then when EBC objected to the validity of Powers of Attorney of Claimants, and consequently, objecting to invalidity of the appointment of Dr. SELIM. Majority of the Tribunal decided not to discuss these issues in their relation to EBC. The Tribunal shall however shed light on the validity of the constitution of the Tribunal from the perspective of IBRAMAR.

a) Valid appointment of Dr. IBRAHIM

242.
IBRAMAR was given the chance, in application of CRCICA Arbitration Rules, to share in the proceedings of appointing the Presiding Arbitrator, and though never participated in any of them, they are bound by the decision of His Excellency CRCICA Director of September 13, 2015, in the application of the said Rules. The Tribunal also refers to the unanimous decision of the CRCICA Ad Hoc Tripartite Committee, dated January 21, 2016, on the dismissal of the Challenge of the Presiding Arbitrator by EBC, to also conclude to the validity of the appointment of the Presiding Arbitrator.

b)Valid appointment of Dr. EL-MELIGY

243.
Though Dr. EL-MELIGY was first nominated by EBC, and never received express confirmation from IBRAMAR. The Tribunal made sure that IBRAMAR was properly advised of its right in sharing of the appointment, and this was also carried out by CRCICA.
244.
In application of 2011 CRCICA Arbitration Rules, namely Article 10(3), CRCICA appointed Dr. EL-MELIGY, and reconstituted lawfully the whole Tribunal on April 26, 2016.

c) Valid appointment of Dr. SELIM

245.
Tribunal also refers to the valid and sufficient Powers of Attorney of Claimants, to empower appointment of Dr. SELIM.
246.
As previously discussed, insufficiency of capacity of the representative of a Company is subject to the law of this Company, i.e., lex societatis (Article 11(2) of the Egyptian Civil Act), here US and Switzerland laws; since Claimants are US and Swiss juridical persons.
247.
According to Tribunal, the Powers of Attorney, in question, were apparently valid and suffice to empower a lawyer of a foreign juridical person to appointment an arbitrator in Egypt. This is for the following reasons:

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).

248.
Therefore, it is the unanimous decision of this Tribunal that it is validly constituted, and henceforth enjoys jurisdiction, within the limits of the Arbitration Clause of the Debt Agreement, dated March 19, 2014.

7) Did IBRAMAR commit unlawful harming procedural behavior?

249.
Claimants accused both Respondents: EBC and IBRAMAR, of harmful procedural behavior, and consequently claimed supplementary indemnity. Majority of the Tribunal shall not discuss this argument against EBC, and dismisses it against IBRAMAR, for the fact that IBRAMAR did not appear in the proceedings, and therefore cannot be blamed to any alleged delay.
250.
Therefore, it is the majority decision of this Tribunal that the request of a supplementary indemnity for delay against IBRAMAR is to be dismissed.

8)Whyshould arbitral proceedings only be suspended against EBC?

251.
According to EBC, even when the Arbitral Clause is found valid, enforceable, and that the Tribunal is lawfully constituted, current arbitral proceedings are due to be automatically suspended, due to opening of proceedings of Bankruptcy Composition, in their favor, by the Bankruptcy Composition Judgment, dated June 28, 2015. This is in application of Article 741(1) of the Egyptian Trade Act No. 17 of 1999.
252.
EBC referred to the Judgment of Cairo Economic Court, dated June 28, 2015 (First Circuit, Economic Bankruptcy, on the Request No. 1 of 2015 for Bankruptcy Composition). Copies of this Judgment were first brought to the attention of this Tribunal, on March 21, 2016.
253.
Article 741(1), of the Egyptian Trade Act, provides:

"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."

254.
Bankruptcy Composition is a "matter lying outside the mandate of the Arbitral Tribunal", and deciding whether it is unnecessary for the determination of the merits, requires giving the Parties full right of defense in discussing this issue. This is what took place after submission of the defence of suspension by EBC, on March 21, 2016.
255.
EBC's defense of suspension was replied to by Claimants, on April 3, 2016, and who objected to its admission due to the following:

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.

256.
EBC insisted on its defense of suspension in its Rejoinder of April 18, 2016.
257.
Both, EBC and Claimants, reiterated same positions regarding the defense of suspension, during the Hearing of June 14, 2016.
258.
Claimants however substantially changed their position, when they requested suspension of proceedings against EBC in their final prayers for relief made on June 25, 2016 (in their Post-Hearing Brief) and then on July 18, 2016 (in their Claimants' Reply to Post-Hearing Brief of EBC).
259.
It was not clear whether the basis of two requests, these of EBC and Claimants, is the same, since Claimants did not, either on June 25 or July 18, expressly refer to Article 741(1) of the Egyptian Trade Act. Tribunal however notes that both requests do not share same substantive scope, since notwithstanding their request of suspension. Claimants requested that the Tribunal to decide on the allegation of EBC being in breach of Debt Agreement.
260.
IBRAMAR was copied with the exchanged Post-Hearing Briefs and did not express a position.
261.
Since, this is now fully discussed by Claimants and EBC, and that full opportunity of defense was given to IBRAMAR, and who decided not to participate, the Tribunal finds itself ready to take a decision upon the suspension request, and which was first submitted by EBC and then by Claimants.
262.
Before giving its decision and the reasons behind it: majority of the Tribunal highlights that all members of the Tribunal discussed whether EBC and Claimants, when decided to request the suspension, were found in agreement to suspend the arbitral proceedings; i.e., whether the Tribunal is bound to suspend the proceedings, at least against EBC, due to suspension by agreement.
263.
Minority of the Tribunal objects to the existence of a joint request of suspension, for the fact that such joint request, must be made expressly, and by all the Parties to the arbitration, and this did not take place, at least by IBRAMAR, and which did not participate in the arbitral proceedings. Therefore, the minority of the Tribunal is against suspension due to a joint agreement.
264.
In all cases, the minority of the Tribunal is also against partial suspension, i.e., suspension only against EBC. This is for the following reasons:

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.

265.
Therefore, according to the minority of this Tribunal; this Tribunal has either to decide against Respondents, EBC and IBRAMAR, or to suspend proceedings against both.
266.
According to the majority however, the Tribunal can decide against IBRAMAR ana suspend proceedings against EBC, for the following reasons:

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).

267.
According to majority of the Tribunal, EBC and Claimants are not into agreement for suspension for the following:

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.

268.
According to majority of the Tribunal, Bankruptcy Composition does not fall into the jurisdiction of this Tribunal; and in current case, it is an incidental matter that needs first to be settled by its competent authority, the Bankruptcy Court.
269.
According to Article 46 of the Egyptian Arbitration Act, incidental matters that arise during arbitration proceedings, without falling at the same time under the jurisdiction of the Tribunal, my lead to the suspension of the proceedings, if the decision of the Tribunal depends first on the settlement of this incidental matter.
270.
Article 46 of the Egyptian Arbitration Act provides that:

"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".

271.
Majority of the Tribunal therefore decides suspension of these arbitral proceedings against EBC, 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. Minority of Tribunal opined that suspension cannot be decided only against EBC, and should also extend to IBRAMAR, if adopted by the Tribunal.

B. Issues of Substance

272.
Issues of substance in this arbitration can be phrased in the following sequential issues: (1) What is the characterization of Debt Agreement? (2) Is Debt Agreement signed by an authorized person from IBRAMAR? (3) Is subject-matter of Debt Agreement lawful? (4) Was Debt Agreement breached by IBRAMAR? (5) Restitution of principal Debt; (6) quantification of indemnity for delay; and (7) Quantification of costs.

1) What is the characterization of Debt Agreement?

273.
Characterization of the Debt Agreement was first raised by the Tribunal in the Hearing session. The Tribunal applies to this issue applicable law to matters of substance (i.e., lex contractus), and which is here the Egyptian law.
274.
According to the Tribunal, and in application of the Egyptian law, the Debt Agreement, dated March 19, 2014, is an innominate contract, subject mainly to the general law of contracts, available under the Egyptian Civil Act.
275.
Since all the concerned Parties are merchants, and the subject-matter of the contract (i.e., Debt Agreement) is a commercial transaction, in application of Article 6 of the Egyptian Trade Act No. 17 of 1999, therefore the Debt Agreement is also subject to the commercial law provisions on commercial obligations, available under the Egyptian commercial law.
276.
Though the principal Debt is that of EBC: IBRAMAR chose, under the Debt Agreement, to act as a joint and several co-debtor.
277.
Therefore, majority of the Tribunal decides that Debt Agreement, dated March 19, 2016, is an innominate contract related to commercial acts; where IBRAMAR is a several and joint co-debtor. Minority of the Tribunal objected to express settlement of this issue due to a procedural obstacle, explained above.

2) Is Debt Agreement signed by un authorized person from IBRAMAR?

278.
As previously discussed, Mr. Mohamed Mohamed Mohamed Moomen signed the Debt Agreement, dated March 19, 2014, on behalf of IBRAMAR, under a title of General Manager, and within his authorities under the Commercial Register of IBRAMAR.
279.
It has to be noted that though the Debt Agreement actually settles a Debt incurred in the shipping operations of EBC; IBRAMAR decided to enter the Debt Agreement as a several and joint co-debtor, this is in order to provide its patrimony as a security. The Commercial Register of IBRAMAR authorizes Mr. Mohamed Mohamed Mohamed Moomen, member of IBRAMAR's Board, to sign individually or collectively (with the Board Chairman) acts of providing security on behalf of IBRAMAR.
280.
Therefore, it is the majority decision of this Tribunal that signature of Mr. Mohamed Mohamed Mohamed Moomen on the Debt Agreement, dated March 19, 2014, binds IBRAMAR. Minority of the Tribunal objected to express settlement of this issue due to a procedural obstacle, explained above.

3) Is subject-matter of Debt Agreement lawful?

281.
It is clear that the Debt Agreement was concluded to achieve two purposes: first, to settle previous records of debts due to former operations between EBC and Claimants; second, to provide the creditors (here the Claimants) a further security in the form of the patrimony of a new joint and several co-debtor (i.e., IBRAMAR).
282.
The Debt Agreement contains a clause stating that IBRAMAR is aware of the financial situation of EBC (See: Paragraph 9 of the Debt Agreement); therefore hinting to the fact that, at the time, EBC was suffering financial difficulties. An agreement as such is not regulated under the Egyptian Trade Act. but it is considered by the jurisprudence as a lawful private mechanism to avoid bankruptcy, as long as it takes place before the declaration of bankruptcy, and therefore not found against Egyptian public order (See: Taha, Mostafa, Commercial Instruments and Bankruptcy. Dar El-Matboat El-Jame’iya, Alexandria, 2001, p. 516). Egyptian jurisprudence calls such an agreement: "amicable composition" or "amicable settlement".
283.
Therefore, it is the majority decision of the Tribunal that the subject-matter of the Debt Agreement, dated March 19, 2014, is lawful. Minority of the Tribunal objected to express settlement of this issue due to a procedural obstacle, explained above.

4) Was Debt Agreement breached by IBRAMAR?

284.
Claimants allege that IBRAMAR is in breach of the Debt Agreement, since clause (Paragraph) 3 of the said agreement entitles them payments, if requested through certain procedure, and that they fulfilled the procedure of notice without receiving any payments.
285.
Claimants invoked Article 148(1) of the Egyptian Civil Code, and which provides that:

"A contract must be performed in accordance with its provisions and in compliance with the requirements of good faith".

286.
IBRAMAR was summoned for payments; Tribunal specifically refers to the notice received by one of IBRAMAR’s representatives. Mr. Mahmoud Ahmed Tharwat, on November 9, 2014.
287.
Majority of the Tribunal therefore declares that IBRAMAR is in breached of the Debt Agreement. Minority of the Tribunal objected to settling this issue for a procedural obstacle already explained above.

5) Restitution of principal Debt

288.
Claimants requested restitution of principal Debt from IBRAMAR, and which is in the amount of USD 1,513,598.43 (one million five hundred thirteen thousand and five hundred ninety eight United States of America dollars and forty-three cents), the amount owed to them as per the Debt Agreement, date March 19, 2014, Paragraph 1.
289.
Majority of the Tribunal, and based on the validity of the Debt Agreement, dated March 19, 2014, and absence any evidence to the contrary, orders IBRAMAR. the payment of the Debt. Minority of the Tribunal also objected to settling this issue for a procedural obstacle already explained above.

6) Quantification of indemnity for delay

290.
According to the Claimants breach of the Debt Agreement entitles them in addition to the restitution of the amount of principal Debt, an indemnity for delay of payment. This indemnity is calculated under contract as 5% of the principal Debt, accrued from due date of payment, and which is April 28, 2014, in addition to a supplementary indemnity of 2%, due to bad faith breach of the Debt Agreement and bad faith in conducting the arbitration procedure. This requires discussion of two issues of quantification of indemnity for delay: the contractual and supplementary indemnities.

a) Contractual indemnity for delay

291.
As regards, contractual indemnity for delay, Claimants hold to Clauses (Paragraphs) 3 and 4, of Debt Agreement.
292.
Clause (Paragraph) 3 stipulates that:

"We agree that interest will accrue at a rate of 5% per annum on the "Debt", beginning from the Due Date".

293.
While Clause (Paragraph) 4 stipulates that:

"... as well as all interest, commissions taxes and legal fees accrued from the time the debt came due.".

294.
As previously mentioned, IBRAMAR was summoned for payments many times stalling April 28, 2014, by a court bailiff; and a notice thereof was namely received by one of IBRAMAR’s representatives. Mr. Mahmoud Ahmed Tharwat, on November 9, 2014.
295.
The Tribunal, being convinced of the validity of the Debt Agreement, and notice of payments, decides by majority vote that Claimants are entitled to the contractual indemnity for delay of payment of the principal Debt, to be calculated as stated under the Debt Agreement as 5% of the principal Debt, from due payment and which is April 28, 2014. Minority of the Tribunal objected also to settling this issue for a procedural obstacle already explained above.

b) Supplementary indemnity for delay

296.
As regards supplementary indemnity for bad faith breach of the Debt Agreement and bad faith in conducting the arbitration proceedings, Claimants invoked Article 231 of the Egyptian Civil Act, and which provides:

"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".

297.
Claimants held to the following events of both Respondents, EBC and IBRAMAR, to prove the bad faith in the breach of the Debt Agreement:

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...".

298.
Claimants did not provide sufficient evidence to prove elements of tort when IBRAMAR breached the Debt Agreement. In addition to the fact that only delay of payment by IBRAMAR does not entitle supplementary indemnity, unless Claimants establish that "... the harm... exceeds the value of the [here agreed] interest." The Claimants did not provide any evidence that they suffered harm exceeding the contractual indemnity of the 5%.
299.
Majority of the Tribunal decides therefore dismissal of request of Claimants for a supplementary indemnity for delay. Minority of the Tribunal objected settling this issue for a procedural obstacle already explained before.

7) Quantification of costs

300.
Claimants quantified the costs that they incurred due to this arbitration in the amount of USD 192,258, until June 23, 2016. This amount covers two types of costs, the arbitration and legal costs as follow:

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

301.
Claimants also requested 5 % contractual indemnity on the amount of costs from their due payment.
302.
The obligation of IBRAMAR to pay the arbitration and legal costs is based on Paragraph 3 of the Debt Agreement, and which included in the Debt, "... all interest, commissions, taxes, legal expenses and legal fees...". The contractual indemnity for delay of payment of costs is based on Paragraph 4 of the same agreement. Majority of the Tribunal also refers to its authority in the allocation of costs provided for under Article46 of the CRCICA Arbitration Rules.
303.
Sufficient evidence was provided, on arbitration costs, namely: CRCICA's invoice for the Arbitration Fees and evidence of payments to CRCICA.
304.
As regards the legal fees, Claimants submitted an invoice for the legal services provided by the law firm, Matouk Bassiouny, to Claimants. The invoice contained a lump sum amount, without detailing the basis of its calculation. Moreover, Claimants did not submit evidence of actual payment of such amount.
305.
Majority of the Tribunal uses its discretionary power in reducing the amount due to legal costs, to a reasonable amount, and which can objectively be assessed in an amount equal to that due as fees for the panel of this Tribunal, and which is USD 36,000. The majority of the Tribunal took into consideration that IBRAMAR did not participate in the arbitral proceedings, and did not commit any harmful procedural behavior to cause unnecessary legal services during this arbitration
306.
Therefore, majority of the Tribunal quantifies the costs to be in the amount USD 78,027, covering:

a) Arbitration costs: USD 42,027

b) Legal costs: USD 36,000

307.
Majority of the Tribunal also decides that the amount of the costs is also subject to the contractual indemnity for delay of payment (i.e., 5%), but uses its discretion to determine their due date to be that of the issuance of this award, in accordance with Article 226 of the Egyptian Civil Act.
308.
Majority of the Tribunal therefore decides that IBRAMAR is ordered to indemnify Claimants for the amount of USD 78,027 (seventy eight thousand and twenty seven United States of America dollars) as arbitration and legal costs; in addition to 5% per annum interest on the amount of these costs, from the date of issuance of this Arbitral Award, and until the date of full payment of these costs. Minority of the Tribunal objected settling this issue for a procedural obstacle already explained above.

VI. DECISION

309.
For reasons set out above, and after due deliberation, now majority of Tribunal decides the following:

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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