(1) Enforcement of the Tribunal’s Decision on Costs —Whether the Tribunal can Issue Award or Order to Enforce its Decision on Costs
Claimant-investor requests the Arbitral Tribunal to issue "an award and order for (Respondent-Kazakhstan] to pay [Respondent—Kazakhstan’s part of arbitration fees and costs as decided in the final award], plus any legal costs in enforcing the final award, in a form which can be turned into a legal judgment."
The Tribunal’s Findings
According to Article 37 (2) [of the SCC Rules], "the Arbitral Tribunal shall, if a party so requests, decide a question which should have been decided in the Award but which has not been decided therein."
The Tribunal notes that [Claimant—investor] made no request during the arbitral proceedings that the Tribunal should issue an award ordering [Respondent-Kazakhstan] to pay its part of the advances, or of the fees and costs finally determined by the Arbitration Institute. Nor does it follow from the SCC Rules or Swedish law applicable to this arbitration that the Arbitral Tribunal shall issue any such award and order on its own accord. There is no practice to support that an arbitration under the SCC Rules should contain such an order. Consequently, the requested award and order is not a matter that should have been decided in the award. The consequence of the Tribunal’s determination that [Respondent-Kazakhstan] is responsible for 50 per cent of the costs... is for an appropriate court to determine.
The request is therefore rejected.
(2) Correction of the Award Based on Miscalculation
According to Article 37 (1) [of the SCC Rules], any obvious miscalculation shall be corrected. [Claimant—investor] asserts miscalculation, but does not specify which calculation(s) it considers to be obvious miscalculation(s).
The Tribunal’s Findings
The award contains only one calculation made by the Tribunal, namely the conversion of the arbitrators’ expenses into EURO,... The Tribunal finds no obvious miscalculation therein.
[Claimant—investor] refers to the Arbitral Tribunal’s finding concerning the value of [the Kazakh Company] at a certain point in time, and asks for a "recalculation" based on [Claimant—investor]’s contentions as to the value of [the Kazakh Company]. The Tribunal’s finding in this respect is not a miscalculation within the meaning of Article 37 (1), nor is it based on any such calculation.
The Tribunal adds that [Claimant—investor] during the arbitral proceedings presented several calculations of its alleged losses. [Claimant-investor]’s calculations are accounted for in the [final award],... Obviously, [Claimant—investor’s contentions, in the form of calculations, may be refuted on substance but may not be the subject of re-calculation by the Tribunal pursuant to Article 37 (1).
For the above reasons, the request for recalculation is rejected
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