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Lawyers and other representatives

Final Award

1. PREAMBLES

1.1 THE PARTIES:

The Claimant:

1.1.1.
The Claimant is Cerner Middle East Ltd., referred to hereinafter as "the Claimant". The Claimant is a Cayman limited company and a subsidiary of Cerner Corporation, a publicly traded US company. The contact details of Cerner Middle East Ltd. are as follows:

2800 Rockcreek Parkway,
Kansas City,
MO 64117,
United States of America.
Telephone: +1 816 201 0550
Fax: +1 816 571 0550
E-mail: melkins@cerner.com

The Respondents:

1.1.2.
The Respondents are iCapital, LLC and Mr. Ahmed Saeed Mahmoud Al-Badie Al-Dahari, hereinafter referred to collectively as "the Respondents". The first Respondent, iCapital LLC, hereinafter referred to as "Respondent No. 1 ' ', is a limited liability company domiciled in the United Arab Emirates. The contact details of iCapital, LLC, are as follows:

iCapital, LLC,
Full 13th Floor,
Cl Towers,
Behind Abu Dhabi Islamic Bank,
Al Bateen Street,
P.O. Box 37148,
Abu Dhabi,
United Arab Emirates.
Telephone: +971 2 658 1050
+971 2 621 8099
+971 2 681 2234
Fax: +9712658 1070
+971 2 681 4490
E-mail: aydeeb@icapital-group.com

The second Respondent, Mr. Ahmed Saeed Mahmoud Al-Badie Al-Dahari,1 hereinafter known as "Respondent No. 2", is an individual and a citizen of the United Arab Emirates, who, upon information and belief, owns 99% of the shares of iCapital LLC and the remaining 1% is owned by his son, Mr. Mohamed Al Badie Al Dahari. The contact details of Mr. Ahmed Saeed Mahmoud Al-Badie Al-Dahari are as follows:

Mr. Ahmed Saeed Mahmoud Al-Badie Al-Dahari,
P.O. Box 37148,
Abu Dhabi,
United Arab Emirates.
Telephone: + 971 2 634 9922
Mobile: + 971 50 622 2970
E-mail: asalbadi@belbadi.ae and ahmedsalbadi@gmail.com

and

c/o Belbadi Enterprises LLC,
13th Floor, Cl Tower,
Bainuna Street,
Al Bateen,
P.O. Box No. 27330,
Abu Dhabi,
United Arab Emirates
Telephone: +971 2 681 2234
Fax: +971 2 681 4490

1.2 AUTHORISED LEGAL REPRESENTATIVES FOR VALID NOTIFICATION AND COMMUNICATION:

Notifications and Communication

1.2.1.
All notifications and communications arising in the course of, or connected with, this arbitration were deemed to have been validly made when they were sent as follows:

(a) To the Claimant: by courier or by e-mail to the representatives of the Claimant, as detailed in paragraph 1.2.2 below;

(b) To Respondent No. 1: Until 27th February 2014, by e-mail or by courier to its representative, as detailed in paragraph 1.2.3 below; and after 28th February 2014, by either facsimile transmission or by e-mail sent to the following e-mail address: aydeeb@icapital-group.com ;

(c) To Respondent No. 2: Until 19th February 2014, sent directly by courier and fax; and after 19th February 2014, by either facsimile transmission or by e-mail and sent to both of the following e-mail addresses: asalbadi@belbadi.ae & ahmedsalbadi@gmail.com ; and

(d) To each member of the Arbitral Tribunal and to the ICC Secretariat, hereinafter referred to as "the Secretariat", at the relevant addresses indicated below, by e-mail or by courier, with searchable PDF or Word attachments, unless the attachments are too big to be sent by e-mail.2 Furthermore, the President of the Arbitral Tribunal should be notified by fax when an e-mail has been sent to the Arbitral Tribunal.

The Claimant:

1.2.2.
The Claimant has issued a Special Power of Attorney for Arbitration dated 6th February 2014 to, and is represented by, Messrs. Matthew G. Allison, Esq.; Charles S. Hallab, Esq.; & Kyle R. Olson, Esq. of Baker & McKenzie LLP, a law firm in Chicago, Illinois, whose contact details are as follows:

Baker & McKenzie LLP,
300 East Randolph Street,
Suite 500,0
Chicago,
IL 60601,
United States of America.
Telephone: + 1 312 861 8000
Fax: + 1 312 861 2899
E-mail: matthew.allison@bakermckenzie.com ;
charles.halla b@bakermckenzie.com ; and kyle.olson@bakermckenzie.com

Respondent No. 1:

1.2.3.
Although Respondent No. 1 was at first represented by Ms. Fiona Campbell; and Mr. Paul Turner of Al Tamimi & Company, whose contact details are set out below, Ms. Fiona Campbell wrote on 11th February 2014 to advise that Respondent No. 1 declined to submit any Power of Attorney authorizing any person to arbitrate any matter on its behalf. Ms. Campbell also stated that Respondent No. 1 would not attend the Terms of Reference Hearing in Paris, which had been fixed for 19th March 2014, and that it considered the entirety of the proceedings to be a nullity. The contact details of Al Tamimi & Company are as follows:

Al Tamimi & Company,
Advocates & Legal Consultants,
Dubai International Financial Centre,
Building 4 East, 6th Floor,
Sheikh Zayed Road,
P.O. Box 9275,
Dubai,
United Arab Emirates.
Telephone No.: +9714364 1641 Fax: + 971 4 364 1777
E-mail: f.campbell@tamimi.com ; &
p.turner@tamimi.com

Respondent No. 2:

1.2.4.
Respondent No. 2 is not and was not represented by anyone, and there has been no communication from him to date. Until 18th February 2014, the President of the Arbitral Tribunal had been sending correspondence to Respondent No. 2 by courier, to the two Post Office boxes referred to in section 1.1.2 above; and by facsimile transmission. Respondent No. 2 accepted the correspondence up to the date of 13th February 2014. However, Respondent No. 2 began to reject the correspondence that was being sent by courier and so the Arbitral Tribunal wrote to the Parties on 18th February 2014, indicating this fact. The Claimant, by letter dated 19th February 2014, explicitly agreed that the Arbitral Tribunal's correspondence to Respondent No. 2 be henceforth sent only by fax. However, some correspondence continued to be sent by courier to Respondent No. 2, either due to its importance or size. The Transmission reports from the fax machine served as a form of proof that the faxes were being delivered. The rejected couriered letters to Respondent No. 2 were returned to the Tribunal and they are kept by the President of the Arbitral Tribunal. Thus, Respondent No. 2 has made no contact with the Arbitral Tribunal.

It is of note that Respondent No. 2 has admitted receiving correspondence from the Tribunal by sending "read receipts" from 7th August 2014 onward.

For the avoidance of doubt, in its correspondence dated 4th October 2013, the Secretariat explicitly confirmed that the Request for Arbitration had been received by Respondent No.2.

1.3 THE ARBITRAL TRIBUNAL

1.3.1.
At its session on 23rd January 2014, the International Court of Arbitration of the International Chamber of Commerce, hereinafter referred to as the "Court", pursuant to Article 12(8) of the Rules, appointed all three members of the Arbitral Tribunal as follows:

• Mr. Andrew de Lotbinière McDougall,
White & Case LLP,
19, Place Vendome,
75001 Paris, France. Telephone: + 33 1 5504 1504
Fax: +33155041516
E-mail: amcdougall @whitecase.com

• Dr. Omar Isam Al-Taher, Al-Taher Law Firm, P.O. Box 930202, Amman 11193, Jordan.
Telephone: + 962 6 562 1015
Fax: + 962 6 569 2689
E-mail: omar@altaherlaw.com

• Dr. Nael G. Bunni,
42 Thormanby Road,
Howth, County Dublin,
Ireland.
Telephone: +353 1 8391141
Fax: +353 1 8391167
E-mail: bunni@eircom.net

1.4 THE AGREEMENTS BETWEEN THE PARTIES FORMING THE SUBJECT MATTER OF THE DISPUTE

Due to their non-participation as explained in paragraphs 1.2.3 and 1.2.4 above, the Respondents did not provide any submissions and/or information that could be used in drafting the background to the relationship between the Parties and the disputes that have arisen between them. Therefore, the following material was taken solely from the Claimant's Request for Arbitration and its subsequent submissions. In these documents, the Claimant contended that:

The Prime Contract

1.4.1.
On or about 7th October 2008, iCapital Sole Establishment, hereinafter referred to as iCapital S/E, executed a Health Information System Project Contract with the UAE Ministry of Health, hereinafter referred to as the "MOH", in respect of the largest public health initiative in the history of the UAE. This project became known as the "Wareed Programme".3 Pursuant to this Contract, Respondent No. 1 became the general contractor for the Wareed Programme and responsible for subcontracting with third parties to provide the products and services necessary to create the consolidated electronic medical information platform.

The Cerner Business Agreement (the CBA)

1.4.2.
On or about 27th September 2008, iCapital S/E entered into a contract, a sub-contract to the Prime Contract, with the Claimant for the design, installation, implementation and maintenance of the Wareed Programme's platform of health care information software solutions and related equipment. The CBA, which is a contract for the provision of software, equipment and services, is roughly 94 million US dollars, at the current exchange rate of 3.6725 UAE dirhams to the US dollar. The CBA categorizes the different products and services to be provided by the Claimant and assigns a monetary value to each product or service, and schedules the Claimant's performance and iCapital S/E payment dates incorporating a series of "Cerner System Schedules" that specified the details of the contractual relationship between the Claimant and iCapital S/E, including detailed payment schedules, the Scope of Work and equipment Specifications. In accordance with the terms of the CBA there were specific date-based payments that were to be made by iCapital S/E to the Claimant, which, the Claimant alleges, iCapital S/E immediately defaulted on. Regardless of this, the Claimant argued that it acted in good faith and in an attempt to facilitate the implementation of the health initiative for the UAE MOH, it continued to perform and further, attempted to resolve the payment defaults through dialogue and compromise. Such dialogue ultimately proved unfruitful and in September 2012, in accordance with the terms of the CBA, the Claimant filed a Request for Arbitration with the ICC against three respondents, namely iCapital S/E; Mr. Ahmed Saeed Mahmoud Al-Badie Al-Dahari (Respondent No. 2 in the within proceedings); and iCapital LLC (Respondent No. 1 in the within proceedings), seeking payment of more than US$50 million in unpaid invoices and accrued interest. In December 2012, prior to the filing of an Answer to the Claimant's Request for Arbitration by any of the three respondents, the Parties entered into a comprehensive settlement agreement which addressed both the overdue payments and the future payments that were to be made to the Claimant in respect of the CBA, referred to in the following paragraph as "The Settlement & Payment Agreement" or the "SPA".

The re-organisation of iCapital S/E into iCapital LLC

1.4.3.
In or around the middle of2012, iCapital S/E re-organised itself from a sole establishment to a limited liability company and became known as iCapital LLC, which is Respondent No. 1 in this arbitration. This fact was recorded at clause (E) and paragraph 7 of the SPA which placed the obligations of the SPA and Amendment No. 5 of the CBA upon Respondent No. 1. Accordingly, reference to iCapital S/E after that date is made to iCapital LLC. The Effective Date of the SPA was 29th December 2012.

The Settlement & Payment Agreement

1.4.4.
The SPA agreement was entered into on or about 29th December 2012 by the Claimant, Respondent No. 1 and Messrs. Belbadi Enterprises LLC, of which Respondent No. 2 was noted to be the Chairman. The Claimant states that this agreement is reflective of the terms that were agreed as of 29th December 2012 regarding the sum of AED118,722,088.00 that was due and owing to the Claimant by Respondent No. 1. Further, the agreement set out a schedule by which Respondent No. 1 was required to make incremental payments towards the overdue amount of AED118,722,088.00 and further obliged Respondent No. 1 to provide a series of post-dated cheques to the Claimant as security for such incremental payments. The Agreement "confirms that in the event that iCapital fails to make any such scheduled payment, the entire Overdue Amount accelerates and becomes immediately due". Additionally, the Agreement provided that if Respondent No. 1 breaches its payment promise before full payment of the first three payments called for in the schedule, an agreed amount of Accrued Interest (AED28,684, 772.00) will become immediately payable in addition to the entire Overdue Amount.

Amendment No. 5 of the CBA

1.4.5.
At the same time that the Parties entered into the SPA, a further document was drawn up by the Parties, amending the CBA and setting out the amounts due and those which were to become due from Respondent No. 1. Amendment No. 5 of the CBA included a series of comprehensive schedules, the Amendment catalogues: (a) payments due from Respondent No. 1 for past work (the "Overdue Amount"); (b) deferred payments for past work that is to be invoiced at a future date (the "Deferred Amount"); and (c) future payments for work to be performed (the "Future Amount" and collectively with the Deferred Amount, the Deferred and Future Amount as defined below). The Amendment also gives the Claimant the unambiguous and immediate right to terminate the CBA in the event that the Respondent No. 1 breaches any of its obligations under the SP A. In the event of termination, the Claimant is expressly granted the right to contract directly with the MOH with respect to the Wareed Programme. This document was executed by the Claimant and Respondent No. 1.

Corporate Guarantees from Belbadi Enterprises LLC:

1.4.6.
As a condition precedent to the SPA, two separate Corporate Guarantees were issued by Messrs. Belbadi Enterprises LLC, of which Respondent No. 2 was noted to be the Chairman. These two guarantees were issued in respect of the Overdue Amount and all remaining amounts owed under the CBA respectively.

1.5 LAW AND LANGUAGE

1.5.1.
The CBA included an arbitration clause, which was amended by Amendment No. 5, and which amendment is quoted in paragraph 1.5.3 below. Furthermore, the SPA included, in its Article 15, an arbitration clause, which is quoted in paragraph 1.5.2 below.
1.5.2.
Article 15 of the SPA provides as follows:

"The arbitration provision set forth in Amendment 5 to the CBA shall be applicable to this Agreement. "

1.5.3.
Section 9.3 of Amendment No. 5 of the CBA provides as follows:

"Section 9.3

Section 9.3 (Arbitration and Injunctive Relief) of the CBA is deleted in its entirety and replaced with the following:

"Each Party to this Agreement hereby submits to binding arbitral proceedings in the event of a dispute to be heard under the exclusive jurisdiction of the International Chamber of Commerce ("the ICC") using the Rules of Conciliation and Arbitration of the International Chamber of Commerce then in effect. The proceedings shall be heard by a panel of three (3) arbitrators, with each Party selecting an arbitrator and the two selected arbitrators selecting a third, independent arbitrator deemed appropriate to hear the dispute by the ICC. In the event the party-appointed arbitrators cannot agree on a third arbitrator, that arbitrator will be appointed by the ICC. The arbitration shall be conducted in the English language in Paris, France. The Parties may alter the venue for arbitration upon mutual written agreement no later than twenty (20) calendar days after receipt of notice by the non-initiating Party. The Parties agree not to interfere, obstruct, or otherwise impact the enforcement of a lawful, issued, binding, and non-appealable award issued by the arbitral panel in any jurisdiction worldwide. Each party to this

Agreement irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The arbitrators shall award the cost of arbitration and any attorneys' fees as just and appropriate except in cases where either Party is explicitly responsible for legal fees in this Agreement or the Settlement Agreement". "

1.5.4.
Section 9.3 of the CBA, prior to being amended by Amendment No. 5, provided:

"9.3 Arbitration and Injunctive Relief. In the event of a dispute between the parties, Cerner and Client agree to work cooperatively to resolve the dispute amicably at appropriate, mutually determined management levels. In the event that a resolution at such management levels does not occur and a party wishes to escalate to a formal dispute resolution forum, such party shall submit the dispute to binding arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce then in effect ("the ICC Rules"), as modified by the provisions of this Section 9.3. The seat of the arbitration shall he Paris, France and the language of the arbitration shall he English. The arbitrator shall have the authority to determine whether any such dispute is properly subject to resolution by arbitration. Judgment upon any award in such arbitration may he entered and enforced in any court of competent jurisdiction. Notwithstanding any provision of this Agreement to the contrary, Client acknowledges that any breach of Client's obligations with respect to Cerner's proprietary rights will result in an irreparable injury for which money damages will not he an adequate remedy and that, in such event, Cerner shall be entitled to injunctive relief in addition to any other relief a court may deem proper. "

1.5.5.
The applicable substantive law in these proceedings is the law of the USA, and in particular, the laws of the State of Missouri, as set out in Section 9.14 of the CBA, which states as follows:

"9.14 Governing Law: This Agreement shall he governed by, construed, interpreted and enforced in accordance with the laws of the State of Missouri, excluding Missouri's rules on conflict of laws that would apply the substantive law of another jurisdiction. "

1.5.6.
The language to be used in these arbitration proceedings is English, as indicated in Section 9.3 of Amendment No. 5 of the CBA, as quoted in paragraph 1.5.3 above.

1.6 PLACE OF ARBITRATION

1.6.1.
As quoted in paragraph 1.5.4 above, Section 9.3 of the original un-amended CBA provided that the "seat of the arbitration shall he Paris, France."4 However, as quoted in paragraph 1.5.3 above, Section 9.3 of Amendment No. 5 of the CBA altered that wording to "arbitration shall he conducted.... in Paris, France. The Parties may alter the venue forarbitration upon mutual written agreement no later than twenty (20) calendar days after receipt of notice by the non-initiating Party. "
1.6.2.
Following receipt of the Request for Arbitration, the Secretariat requested the Parties to indicate whether or not they agree on the Place of Arbitration, reminding them that failing agreement the Court would be invited to fix that Place in accordance with Article 18(1) of the Rules.
1.6.3.
In its Answer to the Request for Arbitration dated 30th September 2013, Respondent No. 1 argued that without any prejudice to the jurisdictional challenge, on any interpretation of the clause, quoted in paragraph 1.6.1 above, the reference to Paris, France could only have been intended to acknowledge Paris as the location of the ICC to whose "exclusive jurisdiction" the Claimant purports to submit. Respondent No. 1 added that the clause does not appear in the SPA and therefore it does not mean that Paris must be the place of the arbitration. Furthermore, Respondent No. 1 argued that the purported arbitration clause in the CBA upon which the Claimant relied provided that "the Parties may alter the venue for Arbitration upon mutual written agreement no later than twenty (20) calendar days after receipt of notice by the non-initiating Party" and insisted that the arbitration must necessarily be conducted in the courts of Abu Dhabi, UAE, having regard to the laws applicable to the Parties, to their contractual relationship and to the subject matter of the Claimant's claims.
1.6.4.
On 4th October 2013, the Secretariat requested the Claimant to provide its comments in relation to Respondent No. 1 's views on the place of arbitration by 11th October 2013.
1.6.5.
On 10th October 2013, the Claimant responded by insisting that Respondent No. 1's view that Paris, France should not be the place of the arbitration is "an entirely frivolous contention". It further confirmed that it had not agreed in writing to alter the venue for the arbitration and did not agree to conduct the arbitration in Abu Dhabi, or in any location other than Paris, France.
1.6.6.
There was no response from Respondent No. 2 to the Secretariat's enquiry as to whether the Parties agreed on the Place of Arbitration. Accordingly, on 24th October 2013, the Secretariat wrote to the Parties and confirmed that the Court would be invited to fix the Place of Arbitration, in accordance with Article 18(1) of the Rules.
1.6.7.
At its session of 14th November 2013, the Court held that the arbitration proceedings shall be conducted in Paris, France, which is referred to hereunder as the "Place of Arbitration" under the Rules.

2. HISTORY OF THE ARBITRAL PROCEEDINGS

2.1 PROCEDURAL HISTORY UP TO THE TRANSMISSION OF THE CASE FILE TO THE ARBITRAL TRIBUNAL

2.1.1.
The Claimant filed its present Request for Arbitration on 23rd August 2013, hereinafter referred to as "the Request", with the Secretariat, pursuant to Article 4 of the Rules, against Respondents No. 1 and No. 2. In doing so, the Claimant selected Mr. Mark Baker of Norton Rose Fulbright LLP as its party-nominated arbitrator, and made the submissions summarised in section 3.2 below.
2.1.2.
The Claimant sought in its Request an Award in excess of US$48 million against Respondent No. 1, including all costs, expenses and fees, and legal fees, related to the arbitral proceedings, contending that Respondent No. 1 is contractually obliged to pay under the SPA.
2.1.3.
By letter dated 26th August 2013, the Secretariat acknowledged receipt of the Claimant's letter and Request dated 23rd August 2013 and assigned it the Case number 19683/AGF.
2.1.4.
Pursuant to Article 4(5) of the Rules, on 30th August 2013, the Secretariat transmitted to both Respondents a copy of the Request for Arbitration and the documents annexed thereto, sent to the business address of Respondent No. 1, as given by the Claimant, The Secretariat requested an Answer to the Request from Respondent No. 1 and Respondent No. 2 within the stipulated time limit of 30 days.
2.1.5.
On 30th September 2013, counsel for Respondent No. 1, Messrs. Al Tamimi & Co., acknowledged receipt of the Secretariat's letter of 30th August 2013 and the Claimant's Request. Al Tamimi & Co. was explicit that it represented only Respondent No. 1 and noted that Mr. Ahmed Saeed Mahmoud Al-Badie Al-Dahari who was cited as Respondent No. 2 did not reside at, or receive any correspondence at, Respondent No. l's address. Respondent No. 1 stated that Respondent No. 2 had, therefore, not been duly notified of any proceedings and was not a proper Respondent to the Arbitration. Furthermore, in this letter, Respondent No. 1 objected to the jurisdiction of the Secretariat and the Court to administer this arbitration and stated that it would challenge the jurisdiction of any Tribunal purportedly confirmed by the Court. Respondent No. 1 added that, should the Court decide to proceed to refer any question of jurisdiction of any claim to an Arbitral Tribunal, it requested an Extension of Time to submit its Answer to the Request for Arbitration and its Counterclaim. Further, Respondent No. 1 noted that the Claimant had nominated Mr. Mark Baker as its co-arbitrator and, therefore, it nominated Mr. Jonathan Wood of Reynolds Porter Chamberlain LLP as its co-arbitrator. Respondent No. 1 also made the submissions that have been summarised at paragraph 1.6.3 above in respect of the Place of Arbitration.
2.1.6.
On 4th October 2013, the Secretariat wrote to all the Parties and, in response to Respondent No. l's insistence that Respondent No. 2 could not be contacted through it, brought Article 3(2) of the Rules to their attention, "[a]ll notifications or communications from the Secretariat and the arbitral tribunal shall be made to the last address of the party or its representative for whom the same are intended, as notified either by the party in question or by the other party. Such notification or communication may be made by delivery against receipt, registered post, courier, email, or any other means of telecommunication that provides a record of the sending thereof". The Secretariat included the relevant delivery receipt that indicated that Respondent No. 2 had in fact received the Request for Arbitration at Respondent No. 1' s address. The Secretariat also confirmed that, even though Mr. Jonathan Wood had not been jointly nominated by both Respondents and was only selected by Respondent No. 1, it would invite Mr. Jonathan Wood to complete the necessary documentation, which would then be sent to the Parties. In connection with Respondent No. 1' s request for an extension of time for submitting an Answer to the Request for Arbitration, the Secretariat granted an extension of time until 1st November 2013, pursuant to Article 5(2) of the Rules. No additional Answer to the Request for Arbitration was submitted by Respondent No. 1 prior to this 1st November deadline.
2.1.7.
On 17th October 2013, the Secretariat wrote to the Parties informing them that the two Respondents would be required to jointly nominate a co-arbitrator in accordance with Article 12(6) of the Rules. The Secretariat informed the Parties that, pursuant to Article 6(4) of the Rules, the issue of jurisdiction had been submitted to the Court for decision. The Parties were invited to submit comments concerning the jurisdictional contentions of Respondent No. 1 within seven days.
2.1.8.
On 15th November 2013, the Parties were informed of the following decisions that had been made by the Court at its session of 14th November 2013:

• This arbitration would proceed against Respondents No. 1 and 2, in accordance with Article 6(4) of the Rules;

• Paris, France was fixed as the Place of the Arbitration, in accordance with Article 18(1) of the Rules; and

• The advance on costs was fixed at US$650,000.00, subject to later readjustments, in accordance with Article 36(2) of the Rules.

2.1.9.
The Respondents were informed that they had 15 days from receipt of the letter of 15th November 2013 to jointly nominate a co-arbitrator. In connection with the advance on costs that was set, the Claimant was requested to pay US$175,000.00 (the remaining part of the advance on costs) and the Respondents were requested to pay US$325,000.00.
2.1.10.
On 2nd December 2013, Respondent No. 1 maintained its challenge to jurisdiction in spite of the Court's decision of 14th November 2013. Respondent No. 1 also requested the Claimant and the Secretariat to refrain from contacting Respondent No. 2 through its address. In addition, Respondent No. 1 informed the Secretariat that it had become aware that the Claimant had issued proceedings against it, and others, in the courts of Abu Dhabi, UAE, for a substantial part of the same claims, being Abu Dhabi Commercial Case 2481/2013 filed on 18th September 2013.
2.1.11.
By letter dated 4th December 2013, the Claimant wrote to the Secretariat requesting that, in spite of the Respondents' positions, Mr. Mark Baker be confirmed as its co-arbitrator in this arbitration, as the delay tactics being employed by the Respondents would result in the time for the Parties appointing their own co-arbitrators expiring and the Claimant would lose its right to appoint as a result.
2.1.12.
On 20th December 2013, the Secretariat informed the Parties that, on 19th December 2013, the Court decided to apply Article 12(8) of the Rules and appoint all three members of the Tribunal.
2.1.13.
On 24th January 2014, the Secretariat wrote to the Parties and informed them that, pursuant to Article 12(8) of the Rules, the Court, at its session on 23rd January 2014, appointed Mr. Andrew de Lotbinière McDougall and Dr. Omar Isam Al-Taher as co-arbitrators; and Dr. Nael G. Bunni as the President of the Arbitral Tribunal in this arbitration case. As the full provisional advance had been paid by the Claimant, the Secretariat forwarded to the Arbitral Tribunal the case file in this arbitration, in accordance with Article 16 of the Rules. This letter was also copied to the appointed Arbitral Tribunal.
2.1.14.
In a second letter by the same date, 24th January 2014, addressed to the Arbitral Tribunal and copied to the Parties, the Secretariat provided all the relevant case information. The Arbitral Tribunal was also informed that, at its session of 14th November 2013, the Court, being prima facie satisfied that an arbitration agreement existed under the Rules, decided that this arbitration would proceed, in accordance with Article 6(4) of the Rules. The Tribunal was instructed to decide on its own jurisdiction, in accordance with Article 6(5) of the Rules.

2.2 PROCEDURAL STEPS LEADING TO THE TERMS OF REFERENCE

2.2.1.
Having received the case file, in accordance with Article 13 of the Rules, on 29th January 2014, the Parties were informed of the Tribunal's intention to hold a Terms of Reference Hearing during March 2014 and were requested to confirm their availability to attend such a Hearing. The Parties were further directed to provide the Tribunal with their own Powers of Attorney.
2.2.2.
In response to the Tribunal's letter referred to at paragraph 2.2.1 above, Respondent No. 1 wrote to the Tribunal on 30th January 2014setting out "the First Respondent's usual objection to jurisdiction" and requested the Tribunal to note that all steps in these proceedings (including all submissions made and correspondence entered into) were subject to Respondent No. l's objection to the Arbitral Tribunal's jurisdiction.
2.2.3.
On 30th January 2014, the Tribunal wrote to the Parties and acknowledged receipt of Respondent No. l's objection to jurisdiction, and confirmed that the Tribunal had noted its contents. On that same date, the Claimant wrote to the Tribunal confirming its approval of the Tribunal's decision to send copies of all of its correspondence with the Parties to Respondent No. 2 at the two P.O. Box addresses, No. 37148, Abu Dhabi; and No. 27330, Abu Dhabi, that were known to belong to him.
2.2.4.
On 4th February 2014, the Tribunal wrote to the Parties requesting the Respondents, firstly, to indicate whether they intended to provide any further response(s) to the Request for Arbitration or any documents in that connection; and requesting the Claimant, secondly, to indicate if it intended to submit any further documents. The Tribunal requested the Parties to note that any such documents should be provided by 12th February 2014.
2.2.5.
On 10th February 2014, the Claimant sent its Original Power of Attorney to the President of the Tribunal, which was received on 14th February 2014.
2.2.6.
On 11th February 2014, the Legal Representatives for Respondent No. 1, Messrs. Al Tamimi & Company, informed the Tribunal that, consistent with its Client's previous objections to the jurisdiction of the Tribunal, its Client declined its opportunity to submit a Power of Attorney authorizing any person to arbitrate any matter on its behalf. Accordingly, Respondent No. l's Legal Representatives were not authorized to compromise the claims made in these proceedings nor to arbitrate any dispute with the Claimant, but only to communicate its Client's objections to this Arbitration and, to compromise and litigate disputes between the Parties in the appropriate jurisdiction elsewhere. The Tribunal was informed that Respondent No. 1 considered these arbitral proceedings to be a nullity, given that Respondent No. 1 never agreed with the Claimant to arbitrate any dispute whatsoever let alone in Paris and by this particular Tribunal. Respondent No. 1 considered that the "ICC Court of Arbitration has grossly exceeded its competence and conducted itself irregularly and without any authority from the named Respondents. The seating of this Arbitration in Paris, the appointment and constitution of this Tribunal were seriously irregular and manifestly in breach of the arbitral mechanism for which the Claimant contends (albeit not a valid arbitration agreement with our client). Any act or conduct by this Tribunal is similarly a nullity. Our client is concerned that the Tribunal is perpetuating such errors and is in want of any jurisdiction whatsoever. We are instructed to inform members of the Tribunal respectfully that our client will not indulge these errors further or otherwise submit to any purported exercise of arbitral jurisdiction. Meanwhile, the Claimant pursues substantially similar claims in the Abu Dhabi courts and by this Arbitration engaged in an actionable abuse of process. For the avoidance of any doubt, iCapital LLC will not attend in Paris on either of the proposed dates 19 & 20 March 2014. "
2.2.7.
On 12th February 2014, the Claimant provided the Tribunal with additional submissions that it termed as "an updated status of the extent of Respondents' breaches", prior to the Terms of Reference Hearing. Additionally, referring to Respondent No. l's communication set out at paragraph 2.2.6 above, the Claimant insisted that it was beyond dispute that both the SP A and the CBA, executed by Respondent No. 1, contained unambiguous and enforceable arbitration clauses that call for the arbitration of disputes before the ICC in Paris. Regardless of the fact that Respondent No. 1 confirmed it would not be in attendance at the Terms of Reference Hearing, the Claimant nevertheless requested that the Terms of Reference Hearing still be held.
2.2.8.
On 18th February 2014, the President of the Tribunal wrote to the Parties to inform them that the courier service he had been using to send hard copies of the Tribunal's letters to Respondent No. 2 had confirmed that Respondent No. 2 had refused to accept delivery of letters dated 12th and 13th February 2014. In line with Article 3(2) of the Rules, the Tribunal accordingly requested the Claimant to confirm what it wished the Tribunal to do, which was to continue to send its letters to Respondent No. 2 by courier and fax or to send its letters to Respondent No. 2 by fax only. The Tribunal informed the Claimant of the cost involved in continuing to send the Tribunal's correspondence by courier to Respondent No. 2 in Abu Dhabi, as well as the cost of having the refused package returned to the President in Dublin. Furthermore, the Tribunal informed the Parties that the Terms of Reference Hearing would take place in Paris on the 19th of March 2014. The Tribunal requested the Parties to liaise with each other to agree on the venue of the Hearing and also the Transcript providers by 27th February 2014, failing which the Tribunal would determine same.
2.2.9.
On 19th February 2014, the Claimant wrote to the Tribunal confirming that it had no objection to the Tribunal sending all future correspondence to Respondent No. 2 by fax only, noting that Respondent No. 2 had been duly notified of these arbitral proceedings pursuant to the Secretariat's letters of 4th October 2013, 15th November 2013 and 9th December 2013. The Claimant also confirmed that it would attempt to liaise with both Respondents in respect of the venue for the Terms of Reference Hearing and the identity of the Transcript providers, as had been requested by the Tribunal. Subsequently, all of the Tribunal's letters to Respondent No. 2 were sent by fax and/or email only.
2.2.10.
On 27th February 2014, the Claimant wrote to the Tribunal, confirming that it had been in contact with Respondent No. 1 with respect to the Terms of Reference Hearing and informed the Tribunal that, in light of Respondent No. 1 's objections to the entirety of these arbitral proceedings, Respondent No. 1, or any representative on its behalf, would not be present at the Terms of Reference Hearing scheduled to take place in Paris on 19th March 2014. In this regard, the Claimant requested that the Tribunal confirm the venue for the Hearing and offered the offices of Baker & McKenzie in Paris, France, as a potential venue for the Hearing. On 28th February 2014, the Tribunal declined the Claimant's offer of holding the Terms of Reference Hearing at the Paris Offices of Baker & McKenzie and accordingly confirmed that the Hearing should take place at The ICC Hearing Centre, 112 Avenue Kleber, 75016 Paris. Further, the Tribunal confirmed the Transcript Providers for the Hearing should be Messrs. Gwen Malone, Stenography Company, Distillery Building, 145-151 Church Street, Dublin 7.
2.2.11.
On 1st March 2014, the Tribunal wrote to the Parties, addressing Respondent No. 1 and Respondent No. 2 directly in light of Messrs. Al Tamimi & Company's letter of 11th February 2014, set out at paragraph 2.2.6 above. The Tribunal confirmed that it intended that all future communications between it and Respondent No. 1 would be direct, but that Messrs. Al Tamimi & Company were being copied in on this letter, to allow Respondent No. 1 one further opportunity to decide whether or not it has a legal representative appearing in this arbitration on its behalf. Were the Tribunal not to hear otherwise, Messrs. Al Tamimi & Company were informed that this would be the last communication on which the Tribunal would copy to it. The Tribunal attached to this letter its Draft No. 1 of the Terms of Reference and Procedural Order No. 1, requiring the Parties' attendance at the Terms of Reference Hearing and the Procedural Meeting that would follow, which would include the case management conference in this arbitration, scheduled to take place on 19th March 2014 in Paris, France.
2.2.12.
On 7th March 2014, the Claimant provided the Tribunal with its comments on Draft No. 1 of the Terms of Reference document. The Claimant reserved its right to propose additional modifications in advance of the Terms of Reference Hearing.
2.2.13.
On 10th March 2014, the Tribunal acknowledged the Claimant's letter of 4th March 2014 and its comments on Draft No. 1 of the Terms of Reference. The Tribunal informed the Parties that the Claimant's comments had been considered, adjusted and incorporated into the Final Draft of the Terms of Reference, which was attached to the Tribunal's letter. The Tribunal repeated that it required all Parties to be present at the Terms of Reference Hearing in Paris, France, in the Suez Conference Room at the ICC Hearing Centre on 19th March 2014 at 10:00 am, in order to discuss the draft Terms of Reference and attempt to agree and sign the Final Version of the Terms of Reference document. The Parties were further requested to note that following the Terms of Reference Hearing a Procedural Meeting would take place to discuss and agree the management of the various steps in this arbitration, together with a provisional timetable in respect thereof.

2.3 THE TERMS OF REFERENCE HEARING

2.3.1.
As had been confirmed in the Tribunal's letter of 18th February 2014, set out at paragraph 2.2.8 above, the Terms of Reference Hearing in this Arbitration, was held on 19th March 2014 at the premises of the ICC Hearing Centre, 112 Avenue Kleber, 75016 Paris, France and commenced at 10:00 a.m.
2.3.2.
It was noted at the commencement of the Hearing that neither Respondent No. 1, nor Respondent No. 2 was present. The Claimant was represented by its legal representatives. Consequently, and following a brief introduction, the President advised all those in attendance that, pursuant to Article 26(2) of the Rules, which he read out, the Tribunal was nevertheless empowered to proceed with the Hearing despite the Respondents' absence. Further, the President explained that it was for this reason that Procedural Order No. 1 had been issued and clearly it had not been complied with by the two Respondents, contrary to Article 22(5) of the Rules. The President of the Tribunal further drew attention to the provisions of Articles 23(3), 24(1) and 26(2) of the Rules, all of which had been brought to the Respondents' attention within Procedural Order No. 1.
2.3.3.
The Claimant, having already submitted to the Tribunal the original of its Power of Attorney on 10th February 2014, satisfied the Tribunal that Messrs. Baker & McKenzie had the requisite authority to act on the Claimant's behalf at the Hearing.
2.3.4.
As explained at paragraphs 2.2.11 to 2.2.13 above, the Tribunal had already circulated two successive drafts of the Terms of Reference document to the Parties. The Claimant had made comments on the first draft of the document, which the Tribunal had considered, adjusted and incorporated into the Final draft which had been sent to the Parties on 10th March 2014. No comments and/or amendments had been received by either Respondent on either of the draft Terms of Reference documents. Accordingly, there were only a number of minor amendments made to the draft that had been circulated to the Parties on 10th March 2014, following which nine originals of the Terms of Reference were prepared, initialled and signed by those present at the Terms of Reference Hearing.

2.4 THE PROCEDURAL MEETING FOLLOWING THE TOR HEARING, INCLUDING THE CASE MANAGEMENT CONFERENCE

2.4.1.
Following the signing of the Terms of Reference, a Procedural Meeting was held on the same date, 19th March 2014, at the ICC Hearing Centre, 112 Avenue Kleber, 75016 Paris, which, as required under Article 24 of the Rules, went on to discuss and establish the procedural measures that might be appropriately adopted, pursuant to Article 22(2) of the Rules.
2.4.2.
At the end of the Procedural Meeting, Procedural Order No. 2 was issued orally by consent of those present and was later confirmed in writing on 24th March 2014. Procedural Order No. 2 is summarised as follows:

• The issue of jurisdiction in this case would be decided ultimately in the Final Award;

• The rules regarding disclosure of documents were clearly set out;

• The date for submission of documents to be filed in this case were set out, including the format for such submissions, witness statements and expert reports;

• The evidentiary hearing would take place in Paris between 27th and 31st October 2014;

• A Hearing Bundle should be filed in advance of the Hearing, namely by 13th October 2014;

• The Tribunal reserved the right to schedule a pre-hearing meeting or conference call;

• The Claimant was directed to arrange the venue, the transcript and other administrative services related to the Hearing; and

• Standard instructions regarding costs and liberty to apply were also set out.

2.5 THE PROCEDURE FOLLOWING PROCEDURAL ORDER NO. 2

2.5.1.
On 24th March 2014, pursuant to Article 23(2) of the Rules, the Secretariat informed the Parties and the Tribunal that the Court on 21st March 2014 had extended the time limit for establishing the Terms of Reference until 30th May 2014.
2.5.2.
On 15th April 2014, in accordance with Order No. 3.2 of Procedural Order No. 2, the Claimant submitted its Notice requesting the production of documents from Respondent No. 1 and Respondent No. 2.
2.5.3.
In the meantime, the Secretariat required a number of changes to be implemented in the Terms of Reference that had been submitted to the Court for its approval. The Tribunal made the necessary changes to the Terms of Reference and the Parties were then afforded the opportunity of providing any comments they may wish to make on the revised Terms of Reference. These comments were to be provided to the Tribunal by 17th April 2014. In the event, the Claimant commented by that date and, based on these comments, the Tribunal incorporated the necessary changes into the Terms of Reference and forwarded these revised Terms of Reference to the Parties on 18th April 2014 for their signature. The Claimant duly complied with the Tribunal's request, but neither Respondent did.
2.5.4.
Furthermore, on 17th April 2014, the Tribunal issued Procedural Order No. 3 for the Parties' attention and compliance. Procedural Order No. 3 provided directions in respect of the procedural rules governing the arbitration, specifically in respect of the evidence and arguments that were to be presented to the Tribunal in this case. It provided that a verbatim transcript of all proceedings would be made and that the Tribunal could proceed with the arbitration and make an award in circumstances where any party failed to present its case or comply with a direction of the Tribunal. Procedural Order No. 3 also dealt with the liability of members of the Tribunal and ultimately stated that "Either Party who knows that any provision of law from which the Parties may derogate has not been complied with and yet proceeds with the arbitration without stating its objection to such non-compliance within a reasonable time of that Party becoming aware of the non-compliance (or, if a time limit is provided therefor, within such period of time) shall be deemed to have waived its right to object. "
2.5.5.
In the end, on 10th May 2014, the Final Terms of Reference document, signed by all Members of the Tribunal and the Claimant was submitted to the Secretariat for approval by the Court.
2.5.6.
The Terms of Reference document signed by the Claimant and the Arbitral Tribunal was approved by the Court on 28th May 2014. This document was forwarded by the Secretariat to each of the Respondents who were invited to themselves sign the document and return it to the Secretariat within 15 days.
2.5.7.
At the request of the Claimant, and following no response from either Respondent, on 4th June 2014, the Tribunal requested the Parties to alter the date of the Hearing in this case and reserve the period between 6th and 10th October 2014 and between 17th and 20th November 2014.
2.5.8.
Having received no documents from either of the two respondents in response to its request for disclosure of documents, the Claimant submitted on 6th June 2014 its Motion for Adverse Inferences from the Respondent's Non-Production of Evidence. The Tribunal acknowledged receipt of this Motion on 9th June 2014, and requested both Respondents to provide their responses to that Motion by 16th June 2014. No response however was received from either Respondent.
2.5.9.
In accordance with paragraph 3.5 of Procedural Order No. 1, the Claimant submitted its Statement of Case together with Witness Statements from Mr. Feras Gadamsi; Mr. Jim Massey and Mr. Pascal Maygnan, and Exhibits on 17th June 2014.
2.5.10.
The time limit for rendering the Final Award in this case was fixed by the Court at its session of 12th June 2014 for 27th February 2015, based on the Procedural Timetable that had been submitted. On 19th February 2015, this time limit was further extended to 30th April 2015 and subsequently on 16th April 2015, this time limit was further extended by the Court to 30th June 2015. Ultimately, on 24th June 2015, the time limit was extended to 31st July 2015.
2.5.11.
On 6th August 2014, the Tribunal wrote to the Parties to inform them that it had just been established that Eid-Al-Adha would coincide with the first set of tentative dates for the scheduled Hearing in these Arbitral proceedings, i.e., between 6th and 10th October 2014. The Tribunal stated that since Respondent No. 1 is a UAE Company and Respondent No. 2 is a UAE Citizen, it would not be either feasible or appropriate to hold the Hearing on these dates. Accordingly, the Hearing in this case was again rescheduled to take place between 17th and 20th November 2014.
2.5.12.
On 8th September 2014, the Tribunal wrote to the Parties and placed on record that neither Respondent No. 1 nor Respondent No. 2 had filed any Statement of Defence by the designated date in Procedural Order No. 1 or at all. Therefore there was no need for the Claimant to file a Reply to Defence and that the Tribunal intended to proceed, in accordance with paragraph 2.13 of Procedural Order No. 3, together with Article 6(8) of the Rules, with the arbitration in accordance with the procedural calendar already established on 24th March 2014 and that it would subsequently render a final award in this case.
2.5.13.
On 29th September 2014, the Claimant filed a Supplemental Witness Statement of Mr. Pascal Maygnan, attesting to additional damages that the Claimant alleged had been incurred by it since the submission of Mr. Maygnan's original Witness Statement.
2.5.14.
On 30th September 2014, the Claimant submitted a Request to the Tribunal in accordance with Article 25(6) of the Rules to decide the proceedings solely on the basis of the documents that had been submitted by the Parties and to:

(i) Issue a Final Award in these proceedings based on the documents submitted in lieu of an evidential hearing; and

(ii) Grant such other and final relief as is appropriate in the circumstances.

2.5.15.
Although the Tribunal requested the Respondents to respond to the Claimant's application pursuant to Article 25(6) of the Rules, no response was received from either Respondent. Having considered the Claimant's application, the Tribunal decided on 10th October 2014 to reject it on the basis of Articles 22(4) and 41 of the Rules.
2.5.16.
The Tribunal wrote to the Parties in connection with certain procedural matters related to the Hearing on 16th October 2014, which was scheduled to commence at 14:00 on 17th November 2014 in Paris. The Tribunal confirmed that no pre-hearing meeting was necessary and that the directions issued in Procedural Orders No. 2 and 3 would continue to apply.
2.5.17.
In accordance with paragraph 3.9.4 of Procedural Order No. 1, and the extension of time subsequently granted to the Claimant by the Tribunal on 29th October 2014, the Claimant submitted written Opening Submissions on 6th November 2014 and provided a copy of the Hearing Bundle to the Tribunal. A further three additional documents were forwarded to the Tribunal by the Claimant on 13th November 2014, which it sought to add to the Hearing Bundle. This matter was ultimately dealt with by the Tribunal at the Hearing, discussed within section 8 below.
2.5.18.
On 10th November 2014, the Claimant furnished the Tribunal with a copy of the CVs of the Witnesses of Fact who would be present at the Hearing to give evidence on the Claimant's behalf.
2.5.19.
In accordance with paragraph 3.9.1 of Procedural Order No. 1, as amended by the Tribunal in its letter dated 6th August 2014, the evidentiary hearing took place at the ICC Hearing Centre, 112 Avenue Kleber, 75016 in Paris on 1i h and 18th November 2014.
2.5.20.
Also on 18th November 2014, the Claimant forwarded to the Tribunal a copy of Demonstrative Exhibit No. 1, which had been furnished to the Tribunal at the Hearing that day.
2.5.21.
On 21st November 2014, the Tribunal forwarded the transcripts of the Hearing to the Parties in this case, along with the scanned, signed Reporter's Certificate. The Tribunal noted that as neither Respondent in this case had attended the Hearing, they should read the transcripts carefully, and note specifically the programme that was to be followed in this arbitration from that point forward. In particular, the Tribunal drew reference to the date for submission of the Post-Hearing Submissions and the fact that such submissions should contain a section on Costs.
2.5.22.
The Claimant submitted on 9th December 2014 its Post-Hearing Submissions. However, the Claimant failed to provide a complete section on Costs therein and submitted instead a footnote. Consequently, the Claimant was required to, and did, file Supplemental Post-Hearing Submissions specifically relating to the issue of Fees and Costs on 19th December 2014.
2.5.23.
The Tribunal, having received the Claimant's Supplemental Post-Hearing Submissions, wrote to the Parties on 22nd December 2014 and informed them in accordance with Article 27 of the Rules, the Tribunal was satisfied that the Parties in this case had been afforded a reasonable opportunity to present their respective cases and accordingly, declared the proceedings closed with respect to matters that were to be decided in the Final Award. Accordingly, the Tribunal informed the Parties that no further submissions or arguments may be made or evidence produced, unless authorized by the Arbitral Tribunal. The Tribunal confirmed that it would proceed to issue and render its Final Award in this case.

3. INITIAL SUMMARY OF THE PARTIES' RESPECTIVE POSITIONS

3.1 BACKGROUND, ACCORDING TO THE CLAIMANT

As already stated within section 1.4 above, due to their non-participation as explained in paragraphs 1.2.3 and 1.2.4, the Respondents did not provide any submissions and/or information that could be used in drafting the background to the relationship between the Parties and the disputes that have arisen between them. Therefore, the following material was taken solely from the Claimant's Request for Arbitration and its subsequent submissions. In these documents, the Claimant contended as set out in the following paragraphs in this section.
3.1.1.
As stated within section 1.4 above, the Claimant submitted that in or around 7th October 2008, iCapital S/E, as a prime contractor, executed a Contract, with the MOH of the UAE, for the Health Information System Project for the Wareed Programme. The Prime Contract provided for milestone-based payments from the MOH to the prime contractor, which meant that the latter was paid when specifically defined portions of the Wareed Programme were installed and implemented. iCapital S/E, in tum, subcontracted with the Claimant, to design, install, implement and maintain the Program's platform of health care information software solutions and related equipment. The agreement between the Claimant and iCapital S/E was comprehensively documented in a subcontract, the CBA, as has been more precisely set out within paragraph 1.4.2 above.
3.1.2.
Pursuant to the CBA, the Claimant stated that it had been tasked with deploying, implementing and maintaining the key licensed software that would allow health care information to be accessible to and utilised by UAE medical professionals on an integrated electronic platform. The Claimant granted Respondent No. 1 a software license; provided related hardware and equipment; and delivered specifically defined installation, implementation, maintenance, support and other professional services.
3.1.3.
The CBA provided for specific date-based payments by iCapital S/E to the Claimant who insisted that its right to receive payment from iCapital S/E and iCapital LLC, Respondent No. 1, for its performance was not contractually dependent upon the receipt of payment from the MOH to the prime contractor, iCapital S/E.
3.1.4.
In September 2008, the Claimant delivered the software called for under the CBA and began its implementation efforts. The Claimant submitted that it worked exhaustively to meet its obligations under the CBA, despite delays for which it was not responsible. Further, the Claimant argued that at all times it fully committed its staff to the completion of the Wareed Programme, which culminated in the implementation and acceptance of the Claimant's platform at all of the 14 hospitals included in the Wareed Programme.
3.1.5.
As stated in paragraph 1.4.2 above, the Claimant submitted that, despite this, iCapital S/E and Respondent No. 1 defaulted on their explicit payment obligations and that, acting in good faith to facilitate the implementation of this important health initiative for the MOH, the Claimant continued its performance and attempted to resolve these payment breaches through dialogue and compromise. The Claimant alleged that the payment promises made by iCapital S/E and Respondent No. 1 had been made simply to induce the Claimant's continued performance.
3.1.6.
The Claimant explained that iCapital S/E had repeatedly asserted that its financial woes were the result of the milestone-based payment schedule to which it had agreed with the MOH. Thus, despite no contractual obligation to do so, the Claimant indicated its qualified willingness to modify the payment schedule to demonstrate its continuing commitment to the MOH and the Wareed Programme.
3.1.7.
The Claimant argued that it diligently performed under the CBA, while iCapital S/E and Respondent No. 1 continuously breached both the unambiguous payment terms of the CBA and their repeated written and oral promises to pay the Claimant's invoices which iCapital S/E and Respondent No. 1 explicitly acknowledged were past due and owing.
3.1.8.
The Claimant added that ultimately, in September 2012, pursuant to the terms of the CBA, and in view of iCapital S/E's failure to pay more than AED180 million that was due and owing under the plain terms of the Parties' Contract, the Claimant filed a Request for Arbitration with the ICC against three respondents, namely iCapital S/E; Mr. Ahmed Saeed Mahmoud Al-Badie Al-Dahari (Respondent No. 2 in the within proceedings); and iCapital LLC (Respondent No. 1 in the within proceedings), seeking payment of more than US$50 million in unpaid invoices and accrued interest. That arbitration case was given the ICC Case number 18941/VRO/A GF, and is referred to hereunder by that case number.
3.1.9.
The Claimant stated that the Respondents in ICC Case No. 18941/VRO/AGF were granted a series of extensions to respond to the Request for Arbitration and to name an arbitrator. On 29th December 2012, prior to Respondent No. 1 filing a response, iCapital LLC and the Claimant entered into a comprehensive settlement agreement, the SP A, which was acknowledged by Belbadi Enterprises LCC, as Guarantor, concerning the claims in the arbitration that addressed both Respondent No. l's overdue payments and future payments that would become due and owing under the CBA. The Settlement was documented in a series of documents, as set out in section 1.4 above, but for the sake of completeness, these documents were as follows:

Settlement and Payment Agreement: This document has already been discussed at paragraph 1.4.3 above. It embodied the Parties' agreement that, as of the effective date of settlement, AED118,722,088.00 was due and owing from Respondent No. 1 to the Claimant. Further, the Agreement contained Respondent No. 1's explicit acknowledgement of the Claimant's full performance of the CBA up to the effective date of the Agreement.

Amendment No. 5 of the CBA: This document has been discussed at paragraph 1.4.4 above.

Two Separate Corporate Guarantees from Belbadi Enterprises LLC, the parent company of iCaptial: These two documents have been discussed at paragraph 1.4.5 above.

3.1.10.
As part of the Settlement, the Claimant argued that Respondent No. 1, inter alia, explicitly:

• acknowledged its contract obligation to pay the Claimant;

• confirmed that the Claimant's contract performance to date was without breach, releasing any claims against the Claimant through the execution of the Settlement;

• promised to pay a contractually defined "Overdue Amount" of AED118.7 million on specified dates over 18 months;

• defined amounts to be invoiced over the next 18 months totalling AED112.3 million for both the Claimant's future performance and for deferred payment of the mutually agreed completed performance of the Claimant, the "Deferred and Future Amount"; and

• agreed that breach of its Settlement promises would accelerate the payment of all amounts due to the Claimant by Respondent No. 1, including an uncontested Accrued Interest Amount of AED28. 7 million, which the Claimant was willing to permanently waive if Respondent No. I performed specifically defined obligations and covenants.

3.1.11.
The Claimant acknowledged that the first two Overdue Amount payments scheduled in the Settlement on 29th December 2012 and 31st January 2013, respectively, were made but thereafter Respondent No. 1 failed to make the third payment, in the amount of AED34,750,490.00, which was due on 25th April 2013.
3.1.12.
The Claimant submitted that, at the request of the MOH, it had provided a series of extensions of time for Respondent No. 1 to pay the third instalment, until 29th June 2013. However, Respondent No. 1 failed to make full payment by that date and the post-dated cheque presented for payment on that date failed to clear, in explicit breach of the SPA. This breach triggered the unambiguous acceleration clause of the SP A. In paragraph 29(e) of its Request for Arbitration, the Claimant submitted that pursuant to the plain terms of the SPA, the following amounts were at the time "immediately owing":

• the remaining Overdue Amount equal to AED77, 722,000.00;

• the Agreed Accrued Interest Amount equal to AED28,685,000.00;

• the Deferred Amount equal to AED43,300,000.00;

• accrued and owing Future Amount equal to AED29,493,000.00; and

• further interest that has accrued on the amounts owed after the SPA which remain unpaid.

3.1.13.
The Claimant stated that it intended to provide evidence of all amounts due and owing as a result of Respondent No. 1's breach of the SPA and of the CBA, but that the amount was in excess of AED180 million (AED179,200,000 plus interest).

3.2 SUMMARY OF THE CLAIMANT'S REQUEST FOR ARBITRATION

3.2.1.
As stated in paragraph 2.1.1 above, the Claimant filed on 23rd August 2013 its Request with the Secretariat, pursuant to Article 4 of the Rules.
3.2.2.
The Claimant provided brief background details to the Contract between the Parties and the subsequent disputes and claims that arose thereafter, which have already been summarised within section 3.1 above. The Claimant continued by making the contentions set out in the following paragraphs.
3.2.3.
The Claimant brought this Arbitration for all damages suffered as a result of Respondent No. 1's breach of its unambiguous payment obligations, and, as explicitly provided for in the SPA, for all costs and fees associated with the Claimant's efforts to collect these undisputed amounts.
3.2.4.
The Claimant contended that Respondent No. l's failure to pay the Claimant is a breach of Section 3.2 of Amendment No. 5 for the CBA and a breach of Section 5 of the SPA. In accordance with Section 4 thereof, the Overdue and Accrued Interest Amounts are immediately due and owing in full, and Respondent No. l's failure to pay the amount is a breach of the SP A.
3.2.5.
As a result of Respondent No. l's breach, the Claimant is owed in excess of AED180,000,000.00 from Respondent No. 1.
3.2.6.
Additionally, pursuant to Section 7.1(F) of the CBA and Section 5 of the SPA, both Respondents are liable to the Claimant for costs and attorney's fees relating to the collection of unpaid invoices.
3.2.7.
The Claimant added that these amounts would continue to increase and the Claimant would present evidence of the exact amount owed by Respondent No. 1 at the time of the Hearing in this case. Respondent No. 2, the Claimant argued, was jointly and severally liable for that debt as the alter ego of Respondent No. 1.
3.2.8.
The Claimant reserved the right to amend, supplement and augment the claims set out within its Request for Arbitration, and to submit such further pleading, arguments, exhibits and evidentiary material as may be appropriate or required in connection therewith.
3.2.9.
The Claimant requested that the Arbitral Tribunal issue an Award that:

• Declares the Respondents to be jointly and severally liable for all amounts awarded;

• Awards all amounts due and owing under the CBA as of the date of the issuance of the A ward, including interest at the maximum permissible rate under the CBA;

• Awards all costs, fees and expenses incurred by the Claimant in pursuit of the past due amounts, including all costs, fees, including legal fees and expenses, and expenses of these arbitration proceedings; and

• Awards any other relief that the Arbitral Tribunal deem just and appropriate.

3.3 RESPONDENT NO. 1'S ANSWER TO THE REQUEST FOR ARBITRATION

3.3.1.
Respondent No. 1 filed its Answer to the Request for Arbitration on 30th September 2013 through Messrs. Al Tamimi & Co. Although its Answer explicitly confirmed that it was only submitted on behalf of itself, Respondent No. 1 attempted to make arguments with respect to Respondent No. 2.
3.3.2.
As stated in paragraph 2.1.4 above, the Secretariat had sent the Request for Arbitration for Respondent No. 2 to the business address of Respondent No. 1, an address provided by the Claimant. Respondent No. 1 indicated in its Answer that Respondent No. 2 "does not reside at or receive any correspondence care of our client's address", and further went on to say that Respondent No. 2, being Mr. Al Dahari, was not duly notified of any proceedings and is not a proper Respondent to this arbitration. However, counsel for Respondent No. 1 added that Al Tamimi & Co. has no authority to make any statements or arguments on behalf of Respondent No. 2.
3.3.3.
Respondent No. 1 stated that, for the avoidance of doubt, and always without prejudice to the challenge of the arbitral jurisdiction, which are set out and discussed within section 3.6 below, the Claimant's claims were denied and the cited Respondents bear no liability to the Claimant. Respondent No. 1 claimed that no genuine claims were made by the Claimant because the very contract alleged to have been breached, the SP A dated 29th December 2012, had been duly performed by Respondent No. 1 and was discharged in accordance with its terms. Respondent No. 1 added that by virtue of Clause 7 of the SPA, entitled "Waiver and Release of Past Claims", the Claimant was barred from pursuing any of the claims stated by it, according to Respondent No. 1.
3.3.4.
It is to be noted that although the arguments presented in the Answer were purportedly made and submitted on behalf of Respondent No. 1 by Al Tamimi & Co. on 30th September 2013 within the preceding paragraphs above and also within section 3.6 below, Respondent No. 1 refused to provide Al Tamimi & Co. with any power of attorney with respect to this Arbitration.

3.4 RESPONDENT NO. 2: NO ANSWER TO THE REQUEST FOR ARBITRATION

3.4.1.
Despite the fact that Respondent No. 2 had received the Request for Arbitration, as confirmed by the ICC Secretariat in its letter of 4th October 2013, Respondent No. 2 did not submit an Answer to the Claimant's Request for Arbitration.

3.5 THE CLAIMANT'S RESPONSE TO RESPONDENT NO. 1 'S ANSWER

3.5.1.
The Claimant submitted its Response to Respondent No. l's Answer on 21st October 2013, and directly addressed the jurisdictional assertions made by Respondent No. 1 in that Answer, which are summarised within section 3.6 below. The Claimant made further additional submissions in its letter dated 12th February 2014, following the Tribunal's invitation on 4th February 2014, to both Parties to do so prior to the Terms of Reference Hearing.
3.5.2.
In this letter, the Claimant repeated what it considered to be breaches by Respondent No. l, namely: Undisputed Overdue Amounts; Deferred Payments; Future Payments; and Additional Amounts, as set out, briefly, in the Claimant's words, in the following paq1graphs.
3.5.3.
Undisputed Overdue Amounts: In connection with the Settlement between the Parties that ended the first arbitration proceedings, Respondent No. 1 expressly acknowledged the full and complete performance of the Claimant under the CBA up and through the date of execution of the SP A. The Parties agreed to liquidate the exact amount of funds due from Respondent No. 1 to the Claimant for that acknowledged performance, and Respondent No. 1 explicitly agreed those funds were due and owing, and specifically released any and all claims it purported to have with respect to those amounts. This framework is fully defined in the SP A that is an exhibit to the Request for Arbitration and these proceedings are to seek in part to enforce Respondent No. 1' s promise to pay the Overdue Amount that was liquidated in that Agreement. Respondent No. 1' s breach of its payment promises had caused the entire Overdue Amount to accelerate and it is now due and owing, as is a liquidated Accrued Interest Amount that the Parties also defined. Arbitral enforcement of Respondent No. 1' s promises to pay the Overdue Amount set forth in the SPA and the Accrued Interest Amount set forth in the CBA should be prompt and without delay.
3.5.4.
Deferred Payments: Similarly, the Parties created a category of amounts due from Respondent No. 1 known as Deferred Payments. These were amounts due for past performance by the Claimant for which the Claimant was willing to defer payment from Respondent No. 1, and was willing to issue new invoices to Respondent No. 1 pursuant to the schedule attached to Amendment No. 5 of the CBA. Since the initiation of these proceedings, certain Deferred Payments have become due and owing and the Claimant will present evidence of all amounts due at the time of the final hearing in this arbitration.
3.5.5.
Future Payments: In addition to liquidating amounts due for performance prior to 29th December 2012, the Parties created a detailed framework for the continuation of the Wareed Programme and both the future performance by the Claimant and future payments by Respondent No. 1. The schedule for those payments is also set forth in Amendment No. 5 of the CBA. Certain Future Payment amounts have also become due and owing since the initiation of these proceedings for which the Claimant stated that it will present evidence of all amounts due at the time of the final hearing in this arbitration.
3.5.6.
Additional Amounts: The Claimant stated that it will also present evidence of the amount of additional interest owed by Respondent No. 1, as well as amounts due for the contractually agreed legal fees and costs relating to the Claimant's enforcement of the Parties' settlement.
3.5.7.
The Claimant stated that Respondent No. 1 has presented no substantive defences to the merits of the Claimant's payment demands. Respondent No. 1 has simply repeated a series of specious jurisdictional contentions as to why this matter should not proceed. The Claimant incorporated all of its previous contentions with respect to those arguments and reserved the right to further supplement those positions as this matter progresses.
3.5.8.
As to Respondent No. 2, the Claimant asserted that whilst Respondent No. 2 has for the time being chosen not to participate in these proceedings and has submitted no response to the Claimant's Request for Arbitration, it is personally liable for the debts of Respondent No. 1 for the following reasons:

• Respondent No. 1 was previously structured as a UAE sole establishment which was 100% owned by Respondent No. 2. As sole proprietor of Respondent No. 1, Respondent No. 2 was personally liable for the debts and obligations of Respondent No. 1 under both US and UAE laws. The restructuring of iCapital S/E to iCapital LLC did not erase or extinguish the personal liability that Respondent No. 2 had to the Claimant for debts incurred by Respondent No. 1.

• Respondents No. 1 and 2 are mere alter egos of each other. They share a complete unity of interest and have disregarded the corporate form in their operations, in their management structure, and in their promises with respect to performance of the Amended CBA, as well as the SPA.

• Respondent No. 1 was inadequately capitalised and cannot be used as a vehicle for Respondent No. 2 to avoid personal liability for the debts of Respondent No. 1. As such, pursuant to Missouri law, which governs the Parties' commercial relationship, there is no legally recognisable distinction between Respondent No. 1 and Respondent No. 2.

3.6 THE PARTIES' SUBMISSIONS ON JURISDICTION

3.6.1.
In its letter to the Secretariat, that accompanied its Request for Arbitration, the Claimant pointed out that the basis for ICC jurisdiction was set forth in the Request and in Amendment No. 5 of the CBA, which provides in the pertinent part the following text: "Each party to this Agreement hereby submits to binding arbitral proceedings in the event of a dispute to be heard under the exclusive jurisdiction of the International Chamber of Commerce (the "ICC") using the Rules of Conciliation and Arbitration of the International Chamber of Commerce then in effect. "
3.6.2.
In its Answer to the Request for Arbitration, Respondent No. 1 challenged the jurisdiction of the Secretariat and the Court to administer these arbitration proceedings and stated that it would also challenge the jurisdiction of any Tribunal purportedly confirmed by the Court.
3.6.3.
Respondent No. 1 also insisted that no valid arbitration agreement exists between the Parties, nor do the claims made by the Claimant fall within the scope of the arbitration clause for which the Claimant contended.
3.6.4.
Respondent No. 1 requested the Secretary General of the Court, pursuant to Article 6(3) of the Rules, to refer the question of jurisdiction first to the Court for preliminary determination, noting the following allegedly unarguable facts:

• The Claimant did not contend and submitted no evidence that Respondent No. 2 was party or even signatory in his personal capacity to any document whatsoever, let alone that he is party to any arbitration agreement. The Claimant's attempt to join Mr. Al-Dahari, as Respondent No. 2, to the arbitral proceedings is a fiction and should be dismissed by the Court.

• The allegation that the Claimant made in its Request for Arbitration that there is an existing arbitration clause in Amendment No. 5 of the CBA annexed to the Request is irrelevant to this Arbitration - no claim arises or is connected in fact to this contract. The Claimant alleged breaches of the SP A. The SP A contains no arbitration agreement between the two companies. A mere reference to an alleged arbitration provision contained in another contract in respect of which no genuine claim is made does not render the subject claims within the scope of this ICC Arbitration.

• In any event, the signatory on behalf of Respondent No. 1 did not and does not have capacity or authority to agree to arbitrate any disputes and there is no valid incorporation of arbitration clauses in any contract executed by the company's CEO let alone any valid and binding arbitration agreement between Respondent No. 1 and the Claimant.

• The subject claims are not arbitrable under any applicable law. As mentioned above, the Claimant had stated no genuine substantive dispute between the Parties, which is capable of arbitration in any event.

On the basis of these submissions alone, Respondent No. 1 requested the Court to decide that, pursuant to Article 6(4) of the Rules, no arbitration agreement prima facie exists between any of the Parties cited and, accordingly, this arbitration cannot proceed.

3.6.5.
Respondent No. 1 stated that, if a Tribunal were to be constituted, then a number of complex questions of competing arbitral and judicial jurisdictions would arise, including, but not limited to, the existence, validity and discharge of agreements, capacity of the Parties and the arbitrability of the stated claims. Complex questions of conflicts of laws applicable to the respective Parties, to the various contracts including the alleged arbitration agreement and the subject matter of the claims could also arise. The Respondent added that "in light of collateral litigation, which the Claimant threatens to pursue"5, then it would be the submission of Respondent No. 1 to any Tribunal that this arbitration should be suspended forthwith pending an investigation and ascertainment of the conduct and outcome of collateral litigation in the UAE.
3.6.6.
The Claimant dealt with Respondent No. 1' s objection to jurisdiction within its Reply to the Answer to the Request submitted by Respondent No. 1 by firstly submitting that any arguments that Respondent No. 1 was attempting to make on behalf of Respondent No. 2 were improper as Respondent No. 1 cannot act as a proxy for the absent Respondent No. 2.
3.6.7.
The Claimant went on to cite the express arbitration clauses contained in both the CBA and the SPA and noted that, contrary to the claims of Respondent No. 1, the Request for Arbitration unambiguously stated claims for breach of both the CBA and the SPA, specifically citing paragraphs 11-14, 29 and 31 of the Request for Arbitration.
3.6.8.
The Claimant submitted that the arbitration clause within the CBA was explicitly and unambiguously incorporated by reference into the SP A, and that both Parties agreed to arbitrate any dispute concerning a breach of the SPA.
3.6.9.
The Claimant contended that both Amendment No. 5 of the CBA and the SPA were executed on behalf of Respondent No. 1 by its CEO, Mr. Amro Y. Al-Deeb, and that Respondent No. 1 explicitly represented that it had the power and authority to enter into the agreements.
3.6.10.
The Claimant noted that breach of contract claims are entirely arbitrable under the law applicable to both the CBA and the SPA and any assertion to the contrary was unfounded.
3.6.11.
The Claimant added to these submissions in its letter of 12th February 2014, insisting that Respondent No. 1' s continued assertions that the Tribunal is without jurisdiction to conduct these proceedings are false. The Claimant argued that it was beyond dispute that both the SPA and the CBA contain unambiguous and enforceable arbitration clauses that call for the arbitration of disputes before the ICC in Paris, France. The Claimant added that Respondent No. 1, with no support or explanation, purports to "never having agreed with Cerner to arbitrate any disputes whatsoever let alone in Paris by this Tribunal". The Claimant rejected this contention and pointed the Tribunal to the agreements between the Parties.

4. COMMUNICATIONS WITH THE RESPONDENTS

4.1.
From the outset of this arbitration, and the transfer of the File to the Arbitral Tribunal, there have been a number of issues in communicating with the Respondents, which are summarised below.

4.2 Respondent No. 1

4.2.1.
As stated at paragraph 2.1.4 above, on 30th August 2013, Respondent No. 1 was notified by the Secretariat of the Request for Arbitration.
4.2.2.
Respondent No. 1 acknowledged receipt of the Request for Arbitration and provided its Answer to the Request for Arbitration on 30th September 2014, that has been summarised within section 3 above.
4.2.3.
Thereafter, and up to 11th February 2014, Respondent No. 1 was accepting communications in connection with these arbitral proceedings up until its Legal Representative's letter dated 11th February 2014, set out at paragraph 2.2.6 above.
4.2.4.
The Claimant subsequently wrote to the Tribunal on 20th March 2014 informing it of a change of email address for Respondent No. 1, as had been notified to it by the Chief Operations Officer of Respondent No. 1, Mr. Ramy M. Yousry. As such, the Claimant notified the Tribunal that the correct email address for Respondent No. 1 should be aydeeb@icapital-group.com.

4.3 Respondent No. 2

4.3.1.
As stated at paragraph 2.1.4 above, on 30th August 2013, Respondent No. 2 was notified by the Secretariat of the Request for Arbitration.
4.3.2.
An issue regarding notification of the Request for Arbitration was raised by Respondent No. 1 in its Legal Representative's letter of 30th September 2013, discussed at paragraphs 2.1.5 and 4.2.2 above.
4.3.3.
The Secretariat responded to the issue of notification on 4th October 2013 in its letter, which has been summarised at paragraph 2.1.6 above. However, this issue continued to be raised, prompting the Secretariat to write to the Parties on 9th December 2013, mainly in connection with the delivery of correspondence to Respondent No. 2. Respondent No. 1 maintained that Respondent No. 2 was not receiving correspondence at that address, but the Secretariat's courier service provided delivery receipts that proved that the correspondence sent by the Secretariat was delivered to the address that was provided for Respondent No. 2 and that he had been receiving correspondence at that address. The Secretariat informed the Parties that, unless it received an alternative/additional address for Respondent No. 2, it would continue sending correspondence to the address of Respondent No. 1 for its attention.
4.3.4.
Following receipt of the case file by the Tribunal, it wrote to the Secretariat on 29th January 2014 pointing out that, having examined the Exhibits that were attached to the Claimant's Request for Arbitration, particularly the signature page under Tab 4, a company stamp for Belbadi Enterprises LLC, of which Respondent No. 2 owns 99%, had a recorded P.O. Box No. of 27330, Abu Dhabi. The Tribunal further informed the Secretariat that, having looked this company up on the internet, and established its address and contact number, the President of the Tribunal, through his secretary made contact with this company and established that Respondent No. 2 was present at that address. Accordingly, the Tribunal proceeded to forward its letter of 29th January 2014, referred to above, together with a copy of the Secretariat's two letters of 24th January 2014 to Respondent No. 2 by courier at the recorded address, with a request for the shipment receipt upon delivery.
4.3.5.
The Secretariat in response, on 29th January 2014, wrote to the Tribunal pointing out that pursuant to Article 3(2) of the Rules, communications by the Arbitral Tribunal and the Secretariat were to be made to the last address of the party or its representative for whom the communication is intended, and as notified by either the party in question or by the other party to the arbitration. Since Respondent No. 2 was not participating and the Claimant had only provided the Secretariat with the address that was thus far being used, the Secretariat had complied with Article 3(2). Therefore, the Secretariat suggested that prior to the Tribunal sending its correspondence to a different address, it should inform the Claimant of the above and the contents of Article 3(2).
4.3.6.
The Tribunal duly did so on 30th January 2014, and requested the Claimant to note in the Exhibits attached to the Claimant's Request for Arbitration, particularly the signature page under Tab 4, a company stamp for Belbadi Enterprises LLC, of which Respondent No. 2 owns 99%, had a recorded P. 0. Box No. of 27330, Abu Dhabi. Consequently, in view of Article 3(2) of the Rules, a copy of the Tribunal's correspondence with the Parties would be sent to both P.O. Box No. 37148 and P.O. Box No. 27330, subject to and until the Tribunal received the Claimant's comments and/or approval of such an action. On that same date, the Claimant wrote to the Tribunal confirming its approval of the Tribunal's decision to send copies of all of its correspondence with the Parties to the two P.O. Box addresses referred to above.
4.3.7.
On 18th February 2014, the President of the Tribunal wrote to the Parties to inform them that the courier service he had been using to send hard copies of the Tribunal's letters to Respondent No. 2 had confirmed that Respondent No. 2 had refused to accept delivery of letters dated 12th and 13th February 2014. In line with Article 3(2) of the Rules, the Tribunal accordingly requested the Claimant to confirm what it wished the Tribunal to do, which was to continue to send its letters to Respondent No. 2 by courier and fax or to send its letters to Respondent No. 2 by fax only. The Tribunal informed the Claimant of the cost involved in continuing to send the Tribunal's correspondence by courier to Respondent No. 2 in Abu Dhabi, as well as the cost of having the refused package returned to the President in Dublin.
4.3.8.
As already stated at paragraph 2.2.9 above, on 19th February 2014, the Claimant confirmed that it had no objection to the Tribunal sending all future correspondence to Respondent No. 2 by fax only, noting that Respondent No. 2 had been duly notified of these arbitral proceedings pursuant to the Secretariat's letters of 4th October 2013, 15th November 2013 and 9th December 2013.
4.4.
Consequently, and as indicated within section 1 above, all notifications and communications arising in the course of, or connected with, this arbitration were deemed to have been validly made when they were sent as follows:

• To Respondent No. 1: Until 27th February 2014, by e-mail or by courier to its notified legal representatives, Messrs. Al Tamimi & Co., as detailed in paragraph 1.2.3 above; and after 27th February 2014, by either facsimile transmission or by e-mail sent to the following e-mail address: aydeeb@icapital-group.com ;

• To Respondent No. 2: Until 19th February 2014, sent directly by courier and fax; and after 19th February 2014, by either facsimile transmission or by e-mail and sent to both of the following e-mail addresses: asalbadi@belbadi.ae & ahmedsalbadi@gmail.com.

5. THE ISSUES SET OUT IN THE TERMS OF REFERENCE

5.1.
Section 5 of the Terms of Reference, as signed, identified the Issues in this arbitration, as follows:

"5.1 Does the Arbitral Tribunal have jurisdiction?

5.2 If the answer to the question in paragraph 5.1 above is in the affirmative, then is the Claimant entitled to any of the relief it claimed in its Request and set out in section 3 above?

5.3 By whom, and in what proportions, are the costs of the arbitration to be borne, as defined in Article 37 of the Rules?"

6. THE PARTIES' SUBMISSIONS

6.1 THE CLAIMANT'S STATEMENT OF CASE

6.1.1.
As stated at paragraph 2.5. 9 above, on 17th June 2014, the Claimant filed its Statement of Case in this Arbitration.
6.1.2.
The Claimant began its Statement of Case by providing a brief summary of the dispute between the Parties, all of which has already been summarised within section 3.1 above. The Claimant made reference to the settlement of what it termed as the "first arbitration", which is set out at paragraphs 3.1.8 to 3.1.10 above; and argued that the comprehensive settlement documents that created the agreement between the Parties did as follows:

• Fully warranted that Respondent No. 1 (iCapital LLC) had the requisite authority to execute such SPA;

• The documents had been signed by the CEO of Respondent No. 1 pursuant to an explicit Power of Attorney; and

• Contained unambiguous promises to arbitrate any and all of the disputes.

6.1.3.
The Claimant pointed out that once Respondent No. 1 had defaulted on the renewed payments (pursuant to the settlement of the first arbitration), it was in breach of its payment obligations under both the SPA and Amendment No. 5 of the CBA. Accordingly, the Claimant had effectively been forced to recommence arbitration proceedings in order to enforce its rights in these current arbitral proceedings. The Claimant added that both Respondent No. 1 and Respondent No. 2 had chosen a different strategy in this arbitration in that being cognizant of no factual or legal defence to their payment obligations, "the Respondents now baldly" assert that the ICC does not have jurisdiction over this dispute and have subsequently refused to participate in these proceedings.

The Tribunal's Jurisdiction

6.1.4.
The Claimant submitted that the Court had found a prima facie agreement to arbitrate existed between the Parties and therefore, in accordance with Article 6 of the Rules, submitted any further jurisdictional disputes to the Tribunal for its consideration. The Claimant asserted that the ICC has jurisdiction over this dispute and further that the Tribunal could proceed to render an award in favour of the Claimant.
6.1.5.
The Tribunal's Jurisdiction in respect of Respondent No. 1 : The Claimant based its assertion that the Tribunal had jurisdiction in respect of the dispute between the Claimant and Respondent No. 1 on the following submissions:

(i) In accordance with Sub-section 9.3 of Amendment No. 5 of the CBA, quoted at paragraph 1.5.3 above, which the Claimant reminded the Tribunal, had been signed by the Claimant and Respondent No. 1, both Respondent No. 1 and the Claimant were bound to arbitrate any and all disputes between them in respect of the CBA. The Claimant added that Missouri law, which was the law governing the dispute between the Parties, encourages the use of arbitration to resolve disputes and in this respect made reference to the decisions in two cases, namely State ex. rel. MCS Building Co. v. KKM Medical6 and Estate of Athon v. Conseco Fin. Servicing Corp.7

(ii) The Parties had incorporated the full arbitration clause of the CBA into the SP A that confirmed the Claimant's full performance and liquidated the amount that was overdue to the Claimant. The SP A, the Claimant submitted, expressly provided that the arbitration provision contained within Amendment No. 5 of the CBA would apply to the SPA. Both of these documents had been signed by the Claimant and Respondent No. 1 to resolve the initial arbitration and although Respondent No. 1 had received a number of extensions to submit its Answer to the Claimant's initial Request for Arbitration, it had not asserted that in those proceedings the ICC did not have the requisite jurisdiction over the dispute.

(iii) The Claimant's Request for Arbitration clearly provided that the Claimant's claim was in respect of a breach of both the CBA and the SP A, and as such the arbitration agreements between the Parties had been appropriately invoked and the jurisdiction of the ICC and therefore, this Tribunal was fully established.

6.1.6.
Whilst the Claimant argued that there was an unambiguous, binding arbitration clause in existence between the Parties and that as such, there could be no doubt but that the Tribunal had jurisdiction in this matter, it nonetheless responded to the arguments that had been made by Respondent No. 1 in this respect. Firstly, the Claimant rejected Respondent No. l's assertion that the arbitration clause in the CBA was irrelevant to the within proceedings, branding such an argument as being "without merit". The Claimant requested it to be noted that Respondent No. 1 had acknowledged the arbitration clause within the CBA and further, had not argued that such a clause was not binding on the Parties. The Respondent instead appeared to the Claimant to be making the argument that since the remedy being sought by the Claimant was pursuant to the SP A, the arbitration clause within the CBA was irrelevant. The Claimant dismissed such an argument on the basis that it was basing its case on a breach of both the CBA and the SPA. Respondent No. l's failure to make payments to the Claimant was, according to the Claimant, a breach of both agreements and further, the language of the SPA could not be clearer, particularly where it provides under Section 5 that a default under that section would constitute a cross-default of the CBA. The Claimant also referred to Sub-section 3.2 of the CBA which provided that the payment schedule was as per Exhibit B to Amendment No. 5 of the CBA, which identifies the Overdue Amounts, Deferred Payments together with the Future Payments, that were to be paid by Respondent No. 1.
6.1.7.
The Claimant further rejected Respondent No. l's assertion that the SPA contained no arbitration agreement. The Claimant argued that the SPA contained a plain statement that disputes concerning its performance were to be governed by the arbitration clause contained within Amendment No. 5 of the CBA. In support of its argument that the arbitration clause within the CBA applied to the SPA, the Claimant relied on Missouri law and made reference to a number of decisions in support of this position.8
6.1.8.
Finally, the Claimant rejected Respondent No. 1 's assertion that the signatory to the Agreement did not have the requisite capacity or authority to sign on its behalf. The Claimant submitted that Mr. Amro Y. Al-Deeb, who is identified within both agreements as the Chief Executive Officer of Respondent No. 1, had executed both Amendment No. 5 of the CBA and the SPA. Further, the Claimant submitted that Respondent No. 1 had delivered to the Claimant a Power of Attorney that gave Mr. Al-Deeb the authority to act on Respondent No. 1' s behalf in connection with the SPA.9 The Claimant also argued that Respondent No. 1 expressly warranted within the SPA that it had the full corporate power and authority to enter into this agreement and to carry out the obligations therein. Finally, the Claimant rejected Respondent No. 1' s assertion that claims relating to post-dated cheques were not arbitrable under any law on the basis that the Claimant's claims in the within proceedings related to Respondent No. 1' s failure to make payment of monies due and owing to the Claimant in breach of contract which, under Missouri law, was irrefutably arbitrable.10
6.1.9.
The Tribunal's Jurisdiction in respect of Respondent No. 2 : The Claimant accepted that whilst Respondent No. 2 was not a direct contracting party to either the CBA or the SPA, Respondent No. 2 was nevertheless bound to the arbitral provisions of both agreements because he was "the alter ego of" Respondent No. 1. As such, following the decision in CD Partners LLC v. Grizzle11, Respondent No. 2 can be bound by the agreement to arbitrate if he is the alter ego of a signatory to the agreement. The Claimant acknowledged that, generally, it would only be possible for the Claimant to enforce its contractual rights against Respondent No. 1 since Respondent No. 1 is a party to the contracts, the subject matter of these proceedings. However, the Claimant argued that there was an exception to such a rule, which would allow the Claimant to "pierce the corporate veil", if it is found that Respondent No. 2 exercised control and domination over Respondent No. 1, not only in terms of finances, but in respect of policy and business practices to such an extent that Respondent No. 1 has no separate mind, will or existence of its own. In such circumstances, once this has been established, Respondent No. 2 could be held liable for the contractual obligations and debts of Respondent No. 1.12
6.1.10.
The Claimant argued that Respondent No. 1 was so dominated by Respondent No. 2 since Respondent No. 1 was formerly known as iCapital Sole Establishment, which was wholly owned by Respondent No. 2. As the sole proprietor of iCapital Sole Establishment, Respondent No. 2 was personally liable for the debts and obligations of iCapital Sole Establishment, under both US and UAE law. The Claimant added that the financial condition of Respondent No. 2 as joint obligor of Respondent No. 1 was a "significant factor" in the Claimant's willingness to execute the CBA and in its continued performance of its obligations despite Respondent No. 1' s performance failures. The Claimant noted that iCapital Sole Establishment had undergone a re-structuring in circumstances where it appeared now to be a limited liability company. This re-structuring had taken place without notice to the Claimant in apparent violation of Sub-section 9.16 of the CBA. The Claimant insisted that such re-structuring did not excuse Respondent No. 2's individual liability for the existing obligations of Respondent No. 113, and accordingly the said re-structuring should be deemed to have no legal effect with respect to the amounts due to the Claimant in this case. In any event, the Claimant continued that both Respondent No. 1 and Respondent No. 2 shared a complete unity of interest and had disregarded any corporate form in their finances, their day-to-day operations and management, and in their obligations to perform under the CBA. The Claimant pointed out that Respondent No. 1 continued to operate exactly as iCapital Sole Establishment had done. It has the same offices, the same business purpose, the same employees, and as such, there should be no distinction in Respondent No. 2's personal liability for the debts of either entity. The Claimant argued that the Tribunal had the necessary discretion to make additional inferences to support the alter-ego argument as a result of both Respondents' failure to provide the documents that had been requested by the Claimant pursuant to Procedural Order No. 2. The Claimant requested the Tribunal to make such inferences and sought a series of findings in this regard, namely that:

• "iCapital" was at all relevant times to this dispute the alter ego of Respondent No. 2 who owned, managed and controlled "iCapital", such that "iCapital" has no separate mind, will or existence of its own;

• "iCapital" and Respondent No. 2 share a complete unity of interest and have disregarded any corporate form in their day-to-day operations and management and in their promises with respect to the performance of the CBA; and

• Respondent No. 2 is jointly and severally liable for all of "iCapital's" debts and obligations to the Claimant in respect of the Wareed Programme.

6.1.11.
The Claimant made the additional argument that under Missouri law, it was possible for a court to disregard the existence of a corporate entity when it was operated whilst undercapitalised, which the Claimant submitted, Respondent No. 1 was.
6.1.12.
The Claimant then provided "Additional Facts supporting Award" in its favour. At the outset of this section, the Claimant submitted that "[g]iven the performance acknowledgement contained in the SPA, [the Claimant] need not present any detailed proof of its performance prior to October 31, 2012" and that given the Respondents' refusal to participate in these proceedings "the attestations contained in the... Witness Statements concerning post-settlement performance by [the Claimant] are uncontested. "14
6.1.13.
The Claimant again went into detail surrounding the background to the dispute all of which has been summarised within section 3.1 above. The Claimant argued that it had established the existence of a binding contract, in this case, two binding contracts - the SPA and the CBA. Further, the Claimant had established the breach of both of those contracts and the damages arising from that breach by simple reference to the irrefutable and unambiguous payment schedules contained within the Agreement.
6.1.14.
The Claimant argued that given Respondent No. 1' s irrefutable and unambiguous acknowledgement, admission and agreement, the Claimant was entitled to an Arbitral Award in the amount of AED193,515,276.00 in damages for the Respondent's breach of contract. The Claimant submitted that this amount would increase following the Claimant issuing the final round of agreed invoices scheduled in Amendment No. 5 of the CBA. The Claimant accordingly requested the right to supplement its damage presentation at the close of evidence in these proceedings. Further, the Claimant sought an award of the Costs and Fees incurred in connection with this arbitration, and requested the right to present evidence of those amounts to the Tribunal at the close of evidence in this case.
6.1.15.
It is important to note, that within a footnote, specifically footnote number 10, of its Statement of Case, the Claimant stated that it had "received a judgment (sic)... against iCapital in the amount of 14.07 million AED", representing the amount that was due and owing to it on foot of the third post-dated cheque that had been issued to it by Respondent No. 1. The Claimant added that it was "not seeking a double recovery against iCapital, but merely seeking to vindicate the statutory UAE rights it has against iCapital. It is expected that iCapital will appeal the trial court judgment (sic), but, in the event that judgment (sic) becomes final and non-appealable prior to the submission of final evidence in this hearing, Cerner will reduce its demand by the amount of that judgment (sic)." As of 9th December 2014, the date upon which the Claimant filed its Post-Hearing Submissions, the Claimant did not provide any evidence to the Tribunal that the Judgment was indeed appealed, as it had "expected". As such, the only evidence before the Tribunal in this respect is that the Judgment to the Claimant in the amount of AED14.07 million stands.

6.2 RESPONDENT NO. 1: NO STATEMENT OF DEFENCE

6.2.1.
As stated at paragraph 2.5.12 above, on 8th September 2014, the Tribunal wrote to the Parties and placed on the record that Respondent No. 1 had failed to file a Statement of Defence in these arbitral proceedings, and confirmed that in accordance with Article 6(8) of the Rules together with paragraph 2.13 of Procedural Order No. 2, the Tribunal would proceed with the arbitration in accordance with the procedural calendar.
6.2.2.
The Tribunal had requested Respondent No. 1 to provide any comments it may have wished to make to the Tribunal in this regard by 15th September 2014. No comments were received from Respondent No. 1.

6.3 RESPONDENT NO. 2: NO STATEMENT OF DEFENCE

6.3.1.
As stated at paragraph 2.5.12 above, on 8th September 2014, the Tribunal wrote to the Parties and placed on the record that Respondent No. 2 had failed to file a Statement of Defence in these arbitral proceedings, and confirmed that in accordance with Article 6(8) of the Rules together with paragraph 2.13 of Procedural Order No. 2, the Tribunal would proceed with the arbitration in accordance with the procedural calendar.
6.3.2.
The Tribunal had requested Respondent No. 2 to provide any comments it may have wished to make to the Tribunal in this regard by 15th September 2014. No comments were received from Respondent No. 2.

7. THE WITNESS STATEMENTS

7.1.
As stated at paragraph 2.5.9 above, on 17th June 2014, the Claimant submitted its Statement of Case together with Witness Statements from Mr. Feras Gadamsi; Mr. Jim Massey and Mr. Pascal Maygnan, together with Exhibits thereto.
7.2.
There were no submissions and no Witness Statements filed by either Respondent in these proceedings.

7.3 THE CLAIMANT'S WITNESS STATEMENT OF MR. FERAS GADAMSI

7.3.1.
l Mr. Gadamsi averred to the fact that he was formerly corporate counsel for the Claimant and held that position at all relevant times since the execution of the CBA between the Parties until his resignation from the Claimant on 15th April 2014. Mr. Gadamsi provided brief background details of the Claimant Company and the prime contract between Respondent No. 1 and the MOH. Mr. Gadamsi then provided information surrounding the execution of the CBA between the Claimant and Respondent No. 1 in September 2008.
7.3.2.
Whilst acting as corporate counsel for the Claimant, Mr. Gadamsi stated that he had primary responsibility for legal matters arising from the CBA, together with any subsequent amendments, modifications, and other alterations thereto. Mr. Gadamsi was one of the Claimant's primary employees tasked with negotiating with Respondent No. 1 and its affiliate, Belbadi Enterprises LLC. He stated that he had been directly involved in the events leading up to the filing of the initial arbitration against, amongst others,15 Respondent No. 1 in September 2012, in the negotiation and execution of the documents that resolved that initial arbitration, and in the events leading up to the filing of these current proceedings against Respondent No. 1 and Respondent No. 2.
7.3.3.
In respect of the CBA and payments that were to be made thereunder, Mr. Gadamsi stated that the CBA explicitly provided for specific date-based payments by iCapital S/E to the Claimant. Mr. Gadamsi added that this payment structure had been the subject of detailed oral and written negotiations between iCapital and the Claimant prior to execution of the CBA, adding that the Claimant's right to receive payment from iCapital for its performance was not contractually conditioned in any manner upon iCapital S/E's receipt of payment from the MOH.
7.3.4.
Mr. Gadamsi stated that in September 2008 the Claimant delivered the software called for under the CBA and began its implementation efforts. iCapital S/E, Mr. Gadamsi stated, was responsible under the CBA to secure the participation necessary to optimize the platform, but such participation was delayed, incomplete, and at times non-existent. Despite what Mr. Gadamsi deemed to be a significant obstacle, the Claimant worked diligently to keep the Wareed Programme on schedule but iCapital immediately defaulted on its explicit payment obligations. Nevertheless, and acting in good faith to facilitate the implementation of this important health initiative for the MOH, Mr. Gadamsi stated that the Claimant continued its performance and attempted to resolve these payment breaches through dialogue and compromise, only to discover that payment promises made by iCapital had been made simply to induce continued performance by the Claimant.
7.3.5.
Mr. Gadamsi stated that he had been involved in almost all of the discussions concerning modified payment plans proposed by iCapital S/E prior to the initiation of the first arbitration proceedings. iCapital S/E repeatedly asserted that its financial woes were the result of the milestone-based payment schedule to which it had agreed with the MOH, and that despite no contractual obligation to do so, the Claimant indicated its qualified willingness to modify the payment schedule to demonstrate its continuing commitment to the MOH and the Wareed Programme.
7.3.6.
Mr. Gadamsi added that both iCapital, and its primary shareholder, Respondent No. 2, made express promises that iCapital would clear its debt to the Claimant and that Respondent No. 2 would guarantee that the Claimant would be paid. Because iCapital S/E was a sole establishment at that time, and because Respondent No. 2 was the sole proprietor of iCapital S/E, Mr. Gadamsi submitted that there was "no legal distinction between the two Respondents".16 The Claimant relied upon these promises in its decision to forego a more prompt arbitral adjudication of its payment rights.
7.3.7.
Subsequently, in or around the middle of 2012, Mr. Gadamsi stated that he learned that iCapital had purported to restructure itself as a LLC under UAE law. Further to the terms of the CBA, which prevented such a restructuring without the consent of the Claimant, Mr. Gadamsi stated:

"I objected to the restructuring and denied any legal effect upon the personal obligation of Al-Dahari to pay the outstanding debts of iCapital at that time."17

Mr. Gadamsi explained that the position of Respondent No. 2 as a joint obligor of iCapital had been "important" to the Claimant's decision to execute the CBA and its willingness to continue to perform its obligations thereunder, despite iCapital breaches.

7.3.8.
In the event, Mr. Gadamsi explained that in September of 2012, the Claimant submitted a Request for Arbitration with the ICC against iCapital S/E; Respondent No. 1; and Respondent No. 2, seeking recovery of in excess of US$50,000,000.00 in unpaid invoices and accrued interest. Prior to any of the three Respondents filing an Answer to the Claimant's Request for Arbitration, the Claimant and iCapital (being represented by Al Tamimi & Co.) agreed "to enter into settlement negotiations that could not be used in any arbitration"18. On foot of this agreement, Mr. Gadamsi and Greg White (Managing Director of the Claimant at the time) met with Mr. Ziad Elhendi, an executive officer of iCapital's much larger affiliate, Belbadi Enterprises LLC (also owned by Respondent No. 2), Respondent No. 2 himself, and Mr. Amro Al-Deeb in the lobby of the Rixos Hotel, The Palm, Dubai in late September 2012. The purpose of the meeting was to begin attempts to settle the dispute prior to proceeding with the next step in arbitration. Mr. Gadamsi was unable to recall with certainty if Messrs. Al Tamimi & Co. were representing both iCapital and Respondent No. 2 at the meeting, but it was his impression they had, "especially considering the willingness of both iCapital and Al-Dahari to engage in settlement discussions only after an agreement not to use such discussions at the arbitration against both iCapital and Al-Dahari individually, was that Al Tamimi was acting for both Respondents at the time. Mr. Elhendi and Mr. Al-Dahari both stressed throughout the negotiations, along with Mr. Al-Deeb, that Belbadi Enterprises fully backed iCapital and that Mr. Al-Dahari had full management control over both enterprises. All deference was accorded to Mr. Al-Dahari with respect to ultimate decision-making by both Mr. Elhendi and Mr. Al-Deeb with respect to iCapital and Belbadi Enterprises each respectively."19 (Emphasis original).
7.3.9.
Following on from this meeting, in December 2012, Mr. Gadamsi stated that the Parties entered into a comprehensive settlement concerning the claims of the arbitration that addressed both iCapital's overdue payments together with future payments that would become due and owing under the CBA. Mr. Gadamsi confirmed that he had been directly involved in the negotiation of that settlement and the intention of the parties to both forever quantify the amount owed to the Claimant for past performance, and to reschedule iCapital's payment obligations for future performance.
7.3.10.
Mr. Gadamsi provided details surrounding the execution of the SPA and Amendment No. 5 of the CBA. He stated that the purpose of the SPA was to address events prior to 31st October 2012,20 and embodied the Parties' agreement that, as of that date, AED118,722,098.20 was due and owing from iCapital to the Claimant. This was expressly defined in the Agreement as the "Overdue Amount". Further, Mr. Gadamsi stated that the SPA contains iCapital's explicit acknowledgement of the Claimant's full performance of the CBA up to the effective date of the Agreement, and explicitly waived any claims of breach with respect to any past performance prior to the effective date of such agreement. Mr. Gadamsi added that the Parties also executed Amendment No. 5 of the CBA, which scheduled both a series of deferred payments and a series of future payments, for services that the Claimant was continuing to provide pursuant to the CBA. The exhibits to Amendment No. 5 identified the dates that each of the deferred and future payments were to be invoiced and paid, and identified the services performed by the Claimant within each invoice.
7.3.11.
Mr. Gadamsi continued by stating that in order to satisfy the Overdue Amount recorded within the SPA, iCapital had provided the Claimant with a series of post-dated cheques that were to be presented for payment by the Claimant on specific dates defined in the SPA. The failure of any of those cheques to clear was deemed to be a breach of both the SPA and the CBA and the entire Overdue Amount would immediately become due to the Claimant by iCapital, including an uncontested Accrued Interest Amount of AED28.7 million that the Claimant had agreed to permanently waive if the first three post-dated cheques cleared as warranted21.
7.3.12.
In addition to the above, Mr. Gadamsi acknowledged that the SPA recorded that iCapital has re-organized itself from a sole establishment to a limited liability company and places the obligations of the SPA and Amendment No. 5 of the CBA upon Respondent No. 1. Mr. Gadamsi further acknowledged that Respondent No. 2 was not a signatory to the SPA or Amendment No. 5 of the CBA in his personal capacity as the former sole proprietor of iCapital, and he remained personally liable for the agreed Overdue Amount, which related to the Claimant's acknowledged performance prior to its consent to the restructuring of iCapital.
7.3.13.
Mr. Gadamsi also detailed in his Witness Statement what he deemed to be the lack of corporate formalities maintained by iCapital and the lack of any substantive distinction between iCapital and its primary shareholder Ahmed Saeed Mahmoud Al-Badie Al-Dahari, Respondent No. 2 in this case. Mr. Gadamsi added that Respondent No. 1 was undercapitalized at the time of its formation in 2012, in that soon after its formation, in connection with the SPA, it presented past due cheques to the Claimant in the amount of AED118 million (more than US$32 million), with an express promise that funds would be available when the dates on the cheques came current, and yet it is now obvious that iCapital did not have sufficient funds for those payments. Mr. Gadamsi added that iCapital had also agreed to make future payments in excess of AED112 million on a series of dates over the 18 months following the execution of Amendment No. 5 of the CBA but it has failed to make any of those payments.
7.3.14.
Mr. Gadamsi concluded his witness statement by submitting that Respondent No. 2, having reformed iCapital S/E as an LLC in a potential effort to insulate himself from personal liability for the increasing debts of iCapital S/E, was obligated to capitalize the company with sufficient funds to allow it to perform under its existing contractual commitments. Respondent No. 2 failed to do so, and has further failed to prove he had done so. Whilst Respondent No. 2 used employees from other entities to help lead the negotiations with the Claimant (allegations contained at paragraph 7.3.8 above), it was Respondent No. 2 himself who was the ultimate arbiter of decisions. Respondent No. 2 is the 99% shareholder of the newly re-organized iCapital LLC, Respondent No. 1 herein, and as such, wielded all power over iCapital S/E and its successor entity Respondent No. 1.

7.4 THE CLAIMANT'S WITNESS STATEMENT OF MR. JAMES MASSEY

7.4.1.
Mr. Massey introduced himself as the Claimant's Client Results Executive since 2011 who has primary responsibility for the day-to-day activities associated with the Wareed Programme and with the Claimant's commercial relationship with iCapital. Mr. Massey confirmed that he has knowledge of the Claimant's performance under the CBA since its execution and acknowledged that whilst it was possible for him to testify about the Claimant's performance prior to 31st October 2012, this was unnecessary since iCapital had unambiguously acknowledged such performance to be complete and to be free of any breach as part of the settlement of the first arbitration proceedings initiated by the Claimant against iCapital. Mr. Massey stated that such an acknowledgement and the simultaneous liquidation of the overdue amounts to be paid to the Claimant from iCapital for the performance of its obligations had been critical consideration for the settlement. Mr. Massey added that the SPA (which had an Effective Date of 29th December 2012), had explicitly documented the settlement and definition of this debt and provides the schedule for iCapital's satisfaction of its admitted payment obligations to the Claimant.
7.4.2.
As such, Mr. Massey's Statement only addressed the Claimant's performance under the amended CBA from 31st October 2012 to the present. In doing so, Mr. Massey provided a brief summary of key CBA performance milestones that had been achieved by the Claimant, pointing out that as of 31st October 2012, the Claimant had completed the implementation of its product portfolio (the Cerner Millennium System) in 12 of the 14 hospitals in the UAE (and one clinic) that had been part of the scope of work. The remaining two hospitals lacked sufficient electrical capacity to support a complete implementation, and a subset of the Cerner Millennium system had been implemented in those locations. At the time the SPA was executed, Mr. Massey stated that the Claimant had already received written acceptances from iCapital documenting the completion of the Claimant's implementation for these locations.
7.4.3.
Mr. Massey stated that as part of the SPA, the Parties decided that the amounts due and owing to the Claimant in respect of its performed obligations at that time, should be defined and liquidated. Thus, the Parties deemed 31st October 2012 as the "Overdue Amount Settlement Date" and fixed the amount due to the Claimant as of that date. The reason for doing so, Mr. Massey submitted was due to the fact that both Parties wanted to avoid any future dispute about performance up to that date, so the SPA contained a release of any and all claims against each other -- whether asserted or unasserted, known or unknown -- from the time of the execution of the CBA through to 31st October 2012.22 Mr. Massey repeated that this acknowledgement by iCapital was critical to the Claimant as a means of preventing any future attempt that may be made by iCapital to unwind its promise to pay the Claimant the fixed Overdue Amount.
7.4.4.
Mr. Massey continued that the Parties had defined the services required to assist the implementation of the remaining Primary Healthcare Clinics and other facilities that iCapital needed to complete the fulfilment of its contract with the MOH and that this also formed part of the SPA.23 In that regard Mr. Massey pointed out that since execution of the SPA, the power issues relating to the two hospitals described at paragraph 7.4.2 above have been resolved and the Claimant has completed the build-up and test of the Millennium system for one of those hospitals. Whilst Mr. Massey stated that this hospital has not yet "gone live"24, this was as a result of iCapital's inability to complete other necessary work. In addition, Mr. Massey stated that the Claimant had implemented its suite of solutions into 29 clinics in the UAE, 23 of which had gone live. Mr. Massey pointed out that iCapital had signed off the Event Activity Reports (EARs) for First Productive Use (FPU) and for Acceptance of these locations, and that of the remaining 6 clinics, 4 have internet connectivity issues25, which has prevented their full operation and 2 have not been implemented by iCapital. Mr. Massey explained that this meant that whilst the work on building and testing the Hospital and these six Clinics has been done, there is no written acceptance showing that the systems have been put into productive use.
7.4.5.
Mr. Massey submitted that the Claimant remained ready and able to build all of the remaining 38 clinics contemplated as part of the Wareed Programme, but that iCapital does not have sufficient funds to purchase certain necessary hardware in order for that to happen, nor does it have sufficient qualified staff to do conversion support at those Hospitals or Clinics. Mr. Massey explained that the Claimant had stopped all "new" implementation work with respect to additional implementations, which falls under the CBA category of Professional Service, as a result of iCapital's payment failures, but it has continued to provide the support services called for under the CBA. This includes services requested in addition to those agreed at the settlement, specifically Conversion Support at the Clinics. These additional service requests were documented in regular reports to iCapital Executives, but have not been invoiced.
7.4.6.
Mr. Massey submitted that the CBA is a contract for the provision of software, equipment and services that total AED344 million.26 The CBA categorizes the different products and services to be provided by the Claimant, assigns a monetary value to each product or service, and schedules the Claimant's performance and iCapital payment dates. When the Parties agreed to Amendment No. 5 of the CBA in connection with the settlement, they reconciled the AED344 million value of the CBA and identified:

a) Amounts that had already been paid by iCapital as of 10/31/2012;

b) Amounts that were part of the agreed Overdue Amount;

c) Deferred Payment amounts; and

d) Future Payment amounts.

7.4.7.
Mr. Massey stated that as of 31st October 2012, iCapital had already paid AED113 million, and as such, the Parties had agreed to the fixed Overdue Amount at AED 118. 7 million. The remaining AED112.3 million was split between Deferred Payments (AED43.3 million) and Future Payments (AED69 million). In respect of Deferred Payments, Mr. Massey stated that this related to two categories of CBA services. Firstly, there were the Claimant's professional services that had not been performed when originally scheduled due to the lack of iCapital performance that would allow for such performance by the Claimant. Secondly, there were the Claimant's software support services, which had been performed, but not invoiced, prior to the SPA by mutual agreement. Amendment No. 5 of the CBA had defined these Deferred Payment amounts and scheduled when they would be invoiced27 or when they were expected to be invoiced.28 In respect of Future Payments, there were four defined types of services that the Claimant agreed to continue to perform despite the Overdue Amount that remained unpaid. Amendment No. 5 of the CBA set out when those amounts were due to be paid and specifically identified the different service categories that were to be included in each Future Payment.
7.4.8.
Mr. Massey then set out the different product and services categories that make up the full value of the CBA, which were as follows29:

Cerner Licensed Software: The sum of AED58.2 million of the CBA relates to the proprietary Millennium system software that the Claimant provided for the Wareed Programme. That software has been fully delivered by the Claimant and iCapital has paid AED53.8 million of the cost for this software. The remaining AED4.4 million that has not been paid forms part of the agreed Overdue Amount.

Equipment & Maintenance: The sum of AED56.7 million of the CBA concerns related equipment and technology necessary to utilize the Cerner suite of software solutions. This included the main production and non production domains,30 consisting of Citrix, application and database servers, the Disaster Recovery system at a separate location together with functional servers for items such as "Powerlnsight, MDBus, Multum"31 and the necessary interconnection and Storage Area Networking. This equipment, Mr. Massey stated, has been fully delivered and iCapital has paid AED40.7 million of the cost of this equipment. The remaining AED16 million that has not been paid was made part of the agreed Overdue Amount.32

Professional Services : The sum of AED88.6 million of the CBA concerns professional services relating to the development, design, configuration, specification, integration and implementation of the Cerner system in the hospitals and clinics that form part of the Wareed Programme. AED18.4 million has been paid by iCapital, and AED47 million was made part of the agreed Overdue Amount. The Parties agreed that, as of 31st October 2012, the Claimant had already performed AED65.5 million of Professional Services. This corresponds with the fact that 12 of the 14 UAE hospitals had been fully implemented as of this date. Mr. Massey submitted that the remaining Professional Services contract amount of AED23.2 million was deferred pursuant to the SP A and scheduled for two separate invoices to be sent upon the completion of each of two milestones defined in Amendment No. 5 of the CBA. These are the only two payment amounts set forth in Amendment No. 5 of the CBA that do not have a defined date for invoicing. The first deferred amount of AEDS.95 million, Mr. Massey pointed out, had been invoiced but had not been paid by iCapital. However, because of iCapital's financial issues and the resulting delayed builds at many of the clinics, AED17.2 million of that deferred amount has not been invoiced and further, was not being sought by the Claimant in this arbitration.

AMS - Application Management Services : Mr. Massey explained that AMS provides a heightened level of software support and other services. It is intended as "Level 2" support33, but that the Claimant had taken on more Level 1 work due to the lack of qualified iCapital staff and intermittent non-responsiveness of iCapital staff due to internal iCapital issues. It is an on-demand service product that is charged by time period, irrespective of the amount of service or support requested by the customer. The sum of AED47.8 million of the CBA was for AMS fees. At the time of execution of the SPA, none of these amounts had been paid. AED15.1 million had been integrated as part of the agreed Overdue Amount for AMS services provided up to 31st October 2012. Mr. Massey added that the Parties also agreed to schedule AED32.7 million of future AMS fees for invoicing on specific dates set forth in Amendment No. 5 of the CBA. As of 15th June 2014, the Claimant would have invoiced all AMS fees, but none had been paid. AMS services were to terminate and would no longer be available to iCapital as of 31st August 2014.

OMS - Operational Management Support : Mr. Massey explained that this provided a heightened level of operational support and other services. The service provided proactive monitoring of the system state and function for all production and non-production systems, and further, provides fixes and upgrades to the systems to ensure optimum performance and reliability. Like the AMS above, the OMS was also an on-demand service that is charged by time period, irrespective of the amount of service or support requested by the customer. AED21.2 million of the CBA was for OMS fees. At the time of the SPA, none of those fees had been paid. AED10.7 million had been integrated as part of the agreed Overdue Amount, and the Parties had agreed to schedule AED10.5 million of future OMS fees for invoicing on specific dates set forth in Amendment No. 5 of the CBA. As of 15th June 2014, the Claimant would have invoiced all AED10.5 million for OMS, and none had been paid. OMS services would terminate and no longer be available to iCapital as of 31st July 2014.

Subscriptions: Mr. Massey submitted that these were payments to third parties for product enhancements and updates, for critical system functions such as the procedural codes or knowledge based systems, such as clinical decision support in such areas as the Emergency Department. The Claimant had been making these third party payments on behalf of iCapital. AED23.4 million of the CBA concerns Subscriptions, and AED7.7 million was made part of the agreed Overdue Amount. AED15.7 million was scheduled for future invoicing on specific dates as set forth in Amendment No. 5 of the CBA, but none of these invoices have been paid. Mr. Massey pointed out that the Subscriptions service would terminate on 30th June 2014.

LSS - Licensed Software Support: Mr. Massey set out that these were on-demand support services for fault resolution, including the Immediate Response Centre, and the provision of updates and fixes for the licensed application software by the Claimant. The sum of AED47.8 million of the CBA concerns LSS Support. ABD17.6 million was made part of the agreed Overdue Amount. AED20.1 million was for support that was already provided but for which invoicing was deferred. As part of the SP A, the Parties agreed to invoice the already performed services on a schedule set forth in Amendment No. 5 of the CBA. AED10.1 million was for future support to be provided after the SPA and to be invoiced on an agreed schedule. LSS Support was to terminate on 27th September 2014.

7.4.9.
Mr. Massey thus explained that the only amounts called for under the CBA, which were not presently due, were the Professional Services associated with the installation of the Cerner suite into the remaining hospital and clinics. The configuration of the software for a facility was dependent on a number of items, which are either not defined until the hardware is installed, such as network (IP) addresses, equipment type, or which can change over time, such as staff names and positions, laboratory stocks, and clinic names and times. As such, this configuration must be done as close to the conversion date as possible. The timing of a conversion is also dependent on other factors, such as the code upgrade, availability of staff for testing, training and support from iCapital and the MOH as well as iCapital obtaining certain hardware from another vendor. The Claimant has not yet provided all of those services, and as such, is not seeking those amounts.
7.4.10.
Mr. Massey concluded his Witness Statement by pointing out that the Claimant had built its suite at one of the two remaining hospitals and at 6 of the 44 clinics that are outstanding in the Wareed Programme, but was not seeking any of the Professional Services costs associated with those builds because it agreed to defer invoicing of those amounts until the job was complete or the Terms of the CBA expired. The job cannot currently be completed due to iCapital's apparent financial constraints.
7.4.11.
Table No. 7.4.11 below shows the figures that were reconciled and allocated to the value of the CBA of AED344,055,603 when the Parties agreed Amendment No. 5 divided into the various CBA services. In doing so, the Parties identified the following categories:

(1) Amounts that had already been paid to the Claimant as of 10th October 2012;

(2) Amounts that were part of the agreed Overdue Amount;

(3) Deferred Payment amounts; and

(4) Future Payments to be made.

Amounts in AEDPaid as of 31110/2012 in AEDPayable with post-dated cheques 2012-14, in AEDDeferred Payments in AEDFuture Receivables to be paid in AEDTotal Invoice =Contract in AED
Cerner Licensed Software 53,840,587 4,403,803 58,244,390
Hosting Services 330,570 88,590,236
Professional Services 18,440177 47,000,000 23,150,059 56,748,548
Technology/ Equipment 40,739,086 16,009,482 21,150,168
OMS I0,680,653 I0,469,515 47,816,056
AMS 15,083,674 32,732,382 23,387,158
Subscriptions 7,657,334 15,729,824 47,788,477
5-year Support 17,556,571 20,149,614 I0,082,292
113,019,830118, 722,0873443,299,67369,014,013344,055,603

Table 7.4.11 - Full Contract and Invoiced/Payments Reconciliation

7.5 THE CLAIMANT'S WITNESS STATEMENT OF MR. PASCAL MAYGNAN

7.5.1.
Mr. Maygnan set out his position as the Claimant's finance manager, and confirmed that he had held that position since 2009. Mr. Maygnan stated that he has primary responsibility for the accounting and reporting of financial-related matters arising from the CBA, and amendments thereto, the most recent of which had been made in December 2012 as part of the SPA. Mr. Maygnan confirmed that he has knowledge of the following matters related to these proceedings:

• all payments that have been made by iCapital pursuant to the CBA;

• all post-dated cheques that were provided to the Claimant by iCapital pursuant to the SPA;

• all invoices that were issued to iCapital pursuant to the CBA and the SPA;

• all invoice and interest amounts that are presently due and owing to the Claimant from iCapital; and

• all amounts that the Claimant has expended in connection with its pursuit of this arbitration and of the collection of past due amounts from iCapital.

7.5.2.
Mr. Maygnan provided some brief financial background details to the dispute between the Parties. Mr. Maygnan pointed out that the CBA had originally provided for specific date-based payments that were to be made by iCapital to the Claimant for the proprietary software, technology, and services that the Claimant was to deliver in accordance with the terms of the CBA. This defined payment flow, Mr. Maygnan stated, had been the subject of negotiations between iCapital and the Claimant prior to execution of the CBA, and the Claimant discounted the price of its software and services in exchange for the certainty of the agreed date-based payments from iCapital. Mr. Maygnan also stated that the Claimant's right to receive payment from iCapital for its performance had not been contractually conditioned on iCapital's receipt of payments from the MOH.
7.5.3.
Mr. Maygnan stated that despite such an agreed payment structure, iCapital repeatedly claimed an inability to pay the Claimant because of the alleged failure of the MOH to make certain milestone payments to iCapital. Mr. Maygnan added that ignoring the unambiguous payment schedules set forth in the CBA, iCapital had breached its contractual payment commitment to the Claimant soon after execution of the CBA, and it had repeatedly failed to pay undisputed Claimant invoices. Between 2009 and 2012, Mr. Maygnan submitted that the Claimant had repeatedly demanded payment of delinquent invoices and was repeatedly assured by iCapital that payment would be forthcoming. iCapital committed to a series of different payment schedules in order to settle its outstanding invoices with the Claimant pursuant to the CBA, but iCapital failed to perform under any of those schedules.
7.5.4.
Mr. Maygnan pointed out that by the end of 2009, just over one year following execution of the CBA, iCapital was already more than US$20 million in default to the Claimant and that as iCapital's repeated payment commitments went unfulfilled, the Claimant was forced in late December 2009 to exercise its contractual right to suspend its services as a result of iCapital's non-payment of undisputed invoices. In the weeks following this suspension of service, the Claimant received two payments from iCapital totalling approximately US$9.9 million. Mr. Maygnan submitted that whilst this amount was less than half of what was owed to the Claimant at that time, the Claimant agreed in good faith to resume its critical services under the Wareed Programme. Mr. Maygnan added that in late January 2010, the Parties agreed to a payment schedule for calendar year 2010 that would bring iCapital current on its outstanding debt to the Claimant, but iCapital failed to make any payments under that proposed payment schedule. As efforts to resolve the payment delinquencies proved unsuccessful, Mr. Maygnan stated that the Claimant was forced to exercise its contractual right to pursue arbitration in order to collect outstanding amounts due under the CBA, which it did in September 2012 and which was resolved by agreement of the Parties in December 2012 through the SPA.
7.5.5.
Mr. Maygnan explained that the settlement of the initial arbitration was marked by the execution of the SPA and Amendment No. 5 of the CBA. The SPA, Mr. Maygnan averred, was intended to define and address amounts that were overdue to the Claimant, which iCapital explicitly acknowledged were due and owing for recognized and accepted performance by the Claimant up to 31st October 2012. Amendment No. 5 of the CBA had been intended to define and reschedule future payments for services that the Claimant was continuing to provide to iCapital and the Wareed Programme. Further, Amendment No. 5 of the CBA also defined an agreed Accrued Interest Amount that was due on the unpaid overdue amount as of the settlement date, which the Claimant was willing to waive if iCapital meet certain performance criteria.
7.5.6.
Mr. Maygnan stated that iCapital had breached the defined payment promises that had been set forth in both the SPA and in Amendment No. 5 of the CBA. Mr. Maygnan went on to define the amounts that are due to the Claimant arising from that breach and divided them into specific categories, namely:

• Overdue Amounts;

• Accrued Interest on Overdue Amounts;

• Deferred and Future Payments;

• Post-Settlement Interest on Payment Breaches; and

• Fees and Costs related to this Arbitration.

Agreed Overdue Amounts

7.5.7.
Mr. Maygnan repeated that the SPA comprised the Parties' agreement to specifically define an Overdue Amount of AED118,722,088.35 Mr. Maygnan made reference to a number of specific extracts from the SPA, submitting that it explicitly confirmed that "the Parties have determined, through direct, good faith, knowledgeable negotiation, and mutual settlement, that the principal amount owed to Cerner and past due through October 31, 2012 (the "Overdue Amount SettlementDate") under the CBA for past performance by Cerner of its obligations thereunder" is 118, 722,088 AED".36 Further, the SPA also confirmed "the Parties desire to finally and forever quantify the value of Cerner's performance -- which performance is full and irrevocably acknowledged by iCapital -- under the CBA, and to finally and forever define the principal about due to Cerner by iCapital for such Cerner performance up to and through the Overdue Amount Settlement Date as the Overdue Amount".37
7.5.8.
Mr. Maygnan explained that in order to ensure finality with respect to past performance and the value of that performance, the Parties included within the SPA an explicit release of claims against each other with respect to any acts or omissions that occurred prior to 31st October 2012, and in this respect had agreed to liquidate the amounts due and owing as of the Overdue Amount Settlement Date of 31st October 2012. As such, the value of all performance to that date was fixed by agreement and this liquidated amount replaced any of the then outstanding invoices. On the basis of this, iCapital issued a series of post-dated cheques to the Claimant to satisfy the Overdue Amount payment obligation. Schedule A to the SPA defined the amount of each post-dated cheque and the date upon which each cheque was to be presented by the Claimant to iCapital's bank for payment. The SPA confirmed that if any cheque was dishonoured when presented for payment, or otherwise failed to clear on the scheduled dates, such that funds do not post to the Claimant's account, that amount remains due and payable and the remainder of the Overdue Amount is accelerated and shall become immediately due and payable.38 Moreover, Mr. Maygnan added that the SPA specifically confirmed that a default under the SPA would also constitute a cross-default under the CBA.39

PAYMENT SCHEDULE

Date of PDCAmount (in AED)Issuing Bank
1. December 29, 2012 9, 175,000.00 Union National Bank
2. January 31, 2013 14,825,000.00 Union National Bank
3. April 25, 2013 34, 750,490.37 Union National Bank
4. September 5, 2013 19,216,708.47 Union National Bank
5. December 5, 2013 9,421,565.96 Union National Bank
6. February 20, 2014 15,666,667.20 Union National Bank
7. May 20, 2014 15,666,666.20 Union National Bank
TOTAL118, 722,098.20

Future receivable payments (timing, schedule, payment terms, and other specific details) are set forth in the Amendment (Amendment No. 5 to the Cerner Business Agreement).

Table No. 7.5.8 - Details of the Post-dated cheques, as quoted from Mr. Pascal Maygnan 's first Witness Statement, page 6

7.5.9.
The dates for payment of the Overdue Amounts were set out within Schedule A to the SPA, which also stated that should iCapital default under the SP A, "all legal fees and other costs and expenses related to collection incurred by Cerner in the pursuit and collection of amounts owed hereunder shall be the responsibility of iCapital[…]"40 Mr. Maygnan set out that the first post-dated cheque provided for the Overdue Amount was presented for payment as scheduled on 29th December 2012, and was cleared through which the Claimant received funds totalling AED9,175,000.00. The second cheque in the amount of AED14,825,000.00, was not presented for payment on 31st January 2013, on the basis that Respondent No. 2 requested that it not be presented as iCapital funds were not available. Ultimately, the amount of the second post-dated cheque was provided to the Claimant in the form of a letter of credit issued by iCapital. Whilst Mr. Maygnan acknowledged that the Claimant received payment of AED14,825,000.00, he stated that the failure of the second cheque to clear on 31st January 2013 was a breach of the SPA, triggering the acceleration clause contained in the SPA, and all Overdue Amounts became immediately due and payable. Subsequently, on 6th February 2013, the Claimant issued invoices to iCapital for the amounts equal to the remaining post-dated cheques.41 Mr. Maygnan stated that the third post-dated cheque in the amount of AED34,750,490.00, was presented for payment on 25th April 2013, as scheduled in the SPA, and was not cleared. At the request of the UAE MOH, the Claimant provided a series of extensions up to 29th June 2013, for iCapital to make funds available or to otherwise pay this third instalment. However, iCapital failed to do so by that date.
7.5.10.
Mr. Maygnan stated that beyond payment of amounts equivalent to the first two post-dated cheques, iCapital has only made two additional payments to the Claimant in partial satisfaction of the Overdue Amount. On 16th June 2013, iCapital made a payment by wire transfer of AEDI 7,000,000.00 to the Claimant in partial satisfaction of the Overdue Amount. Additionally, on 26th December 2013, iCapital made a payment of AED3,680,000.00 to the Claimant. Mr. Maygnan acknowledged these payments and stated that these amounts had been credited against the amount of the third post-dated cheque, leaving AED14,070,490.00 due on that third payment amount. Mr. Maygnan stated that in summary, whilst a total of AED44,680,000.00 had been received from the Claimant, the full amount of payments no. 4 to 7 remain due and owing42 in the sum of AED74,042,098.00.43 Mr. Maygnan made reference to Appendix A of his Witness Statement which set out the outstanding amounts due from iCapital; the invoices issued for the amounts of the post-dated cheques; and the remaining amounts due on each of those invoices.

Accrued Interest on Overdue Amount

7.5.11.
Pursuant to Section 3.3 of Amendment No. 5 of the CBA, Mr. Maygnan pointed out that iCapital had acknowledged that interest in accordance with Section 7.l(F) of the CBA had accrued for late payment owed to the Claimant by iCapital in the amount of AED28,684, 772.00 as of 31st October 2012. It was a further element of the settlement between the Parties that such interest would be waived in the event that the first 3 post-dated cheques provided by iCapital cleared and the amounts posted to the Claimant's account.44 Owing to the fact that "the first three post-dated checks did not clear", Mr. Maygnan submitted that the Accrued Interest Amount of AED28,684, 772.00 became immediately due and payable.

Deferred Payments and Future Payments

7.5.12.
Mr. Maygnan stated that Amendment No. 5 of the CBA had defined an invoice and payment schedule for performance that was largely, but not entirely, to occur after the settlement. These amounts, Mr. Maygnan pointed out, had been precisely described in Exhibits A and B to Amendment No. 5 of the CBA, and include four "deferred" payments and five "future" payments. Mr. Maygnan continued by pointing out that the four Deferred Payments relate to amounts that should have already been invoiced pursuant to the original CBA payment schedule but had not been invoiced at the time of the SPA. Two of these Deferred Payments (No. 1 and No. 3) concerned Professional Services, and it had been agreed between the Parties that these payments would be invoiced when certain implementation milestones had been reached. The other two Deferred Payments (No. 2 and No. 4) concerned Licensed Software Support for years 3 and 4 of the CBA that were originally due in September 2011 and September 2012 respectively, but were agreed to be invoiced on specific dates as newly scheduled in Amendment No. 5 of the CBA.
7.5.13.
In respect of the 5 Future Payments, Mr. Maygnan explained that these relate to future AMS, OMS, Subscriptions, and Licensed Software Support services that were called for under the CBA. Amendment No. 5 of the CBA defined the dates upon which those Future Payments would be invoiced and when they would be due.45 Mr. Maygnan stated that the Claimant had continued to fully perform all of these services under the CBA since the execution of the SPA and Amendment 5 to the CBA, and as such, in accordance with Amendment No. 5 of the CBA, it had issued invoices for Future Payments Nos. 1 to 4, and for Deferred Payments Nos. 1 and 3. Further, together with the submission of his Witness Statement, Mr. Maygnan stated that the Claimant would issue invoices associated with Future Payment No. 5 and Deferred Payment No. 4, as scheduled in Amendment No. 5 of the CBA.
7.5.14.
Mr. Maygnan made reference to Appendix A to his Witness Statement, which he submitted identified all outstanding invoices associated with the Deferred and Future Payments (as well as the invoices issued for the accelerated Overdue Amounts) and the outstanding invoices for the various services provided by the Claimant pursuant to the CBA. None of these invoices had been paid by iCapital, with the total amount of Deferred and Future Payment invoices issued pursuant to the agreement of the Parties in Amendment No. 5 of the CBA that is presently outstanding is AED77,577,088.00. Mr. Maygnan also stated that on 15th June 2014, the Claimant would issue invoices in respect of agreed Future Payment No. 5 and Deferred Payment No. 4 in the sum of AED17,538,201.00, which would become due and payable on 15th July 2014. In accordance with the terms of Amendment No. 5 of the CBA, Mr. Maygnan stated that the Claimant had not issued an invoice for Deferred Payment No. 3.

Additional Interest

7.5.15.
Mr. Maygnan stated that in accordance with Section 7.1(F) of the CBA, the Claimant is entitled to interest on all amounts that are past due. Section 7 permits interest at the lesser rate of 1.5% per month or the maximum permissible rate. Mr. Maygnan added that pursuant to Missouri statute, the prejudgment interest rate for contract claims (when no rate is agreed between the parties) is 9%,46 and whilst the Parties agreed to interest at the rate of 18% per annum for unpaid invoices, the Claimant was seeking interest at the annual rate of 9%. Mr. Maygnan attached a calculation of the interest currently due and owing on the outstanding iCapital receivables as of 15th June 2014 in the total amount of AED13,253,649.00.

Collection Fees and Costs

7.5.16.
Also in accordance with Section 7. 1(F) of the CBA and Section 5 of the SPA, iCapital was liable to the Claimant for costs and attorneys' fees relating to the collection of these unpaid invoices. Mr. Maygnan explained that the Claimant would present supplemental evidence in support of its claim for collection expenses at the time of the close of evidence in this matter.

Total Damages

7.5.17.
Mr. Maygnan provided a summary of the Claimant’s current claim for damages which was as follows:

• Unpaid Overdue Amount: AED74,042,098

• Current Unpaid Future and Deferred Payments: AED77,577,088

• Agreed Accrued Interest: AED28,684,772

• Agreed Accrued Interest: AED28,684,772

• Additional Interest (as of 15th June 2014): AED13,211,318

• Total Damages: AED193,515,276

• (plus collection costs and additional invoices to be issued on 15th June 2014)

7.5.18.
Mr. Maygnan stated that in addition to the above, the Claimant intended to add collection costs and invoices totalling AED17,538,201.00 all of which were to be issued on 15th June 2014.

7.6THE CLAIMANT’S SUPPLEMENTAL WITNESS STATEMENT OF MR. PASCAL MAYGNAN

7.6.1.
Mr. Maygnan submitted a Supplemental Witness Statement for the purpose of testifying to additional damages that Mr. Maygnan submitted the Claimant had suffered as a result of iCapital’s breach. Mr. Maygnan confirmed also that between the date of his Witness Statement set out within section 7.5 above and the date of this, his Supplemental Witness Statement, no payments had been made by iCapital to the Claimant and the amounts to which he had previously testified remain due and owing.

Additional Invoice Amounts

7.6.2.
Mr. Maygnan made reference to the schedule for the payment of Future and Deferred Payments and also to the invoice and payment schedule that had been defined within Amendment No. 5 of the CBA. Mr. Maygnan stated that at the time of his first Witness Statement, invoices relating to Future Payment No. 5 and Deferred Payment No. 4 had still to be issued by the Claimant to iCapital. This was ultimately done on 15th June 2014 and those invoices were included within Exhibit 14 of the Supplemental Witness Statement. Mr. Maygnan confirmed that the Claimant had performed all of the services associated with these invoices and is entitled to payment of them in the sum of AED 17,538,201.00. iCapital failed to pay these invoices and accordingly, the Claimant sought additional damages in the amount of these unpaid invoices.

Additional Interest

7.6.3.
Mr. Maygnan testified that in accordance with Section 7.1(F) of the CBA, the Claimant is entitled to interest on all amounts that are past due, and that as explained at paragraph 7.5.15 above, the Claimant was only seeking payment of interest at a rate of 9%. Mr. Maygnan clarified that in his previous Witness Statement he had calculated the interest that at the time was due and owing on outstanding iCapital receivables in the amount of AED13,325,033.00. This amount had since been recalculated and as of 1st October 2014 this amount totalled AED18,010,422.00.

Collection Fees and Costs

7.6.4.
Also in accordance with Section 7.l(F) of the CBA and pursuant to Section 5 of the SPA, and as set out in his original Witness Statement, Mr. Maygnan stated that iCapital were liable to the Claimant for its costs and attorneys' fees relating to the collection of these unpaid invoices. Mr. Maygnan added that the Claimant had paid US$325,000.00 for its share of the US$650,000.00 advance on costs ordered by the ICC (and has presented a guarantee for an additional US$400,000.00 to cover iCapital's share of the original US$650,000.00 advance as well as a recently ordered US$75,000.00 increase in the advance). Further, the Claimant had paid its legal representatives five invoices to date relating to these proceedings, totalling US$21 l,838.00.

Total Additional Damages

7.6.5.
Mr. Maygnan made reference to his original Witness Statement where he had identified a total claim for damages in the amount of AED193,515,276.00, adding that since that Statement, the Claimant had suffered additional damages in the amount of AED22,223,590.00 relating to additional unpaid invoices47, together with additional interest48 and fees and costs49 associated with these arbitral proceedings.

8. THE NOVEMBER 2014 HEARING

8.1.
Pursuant to Order No. 2.1 of Procedural Order No. 3, the Hearing in this Arbitration case was held on 17th and 18th November 2014 at the premises of the ICC Hearing Centre, 112 Avenue Kleber, 75016 Paris, France and commenced at 14:00.
8.2.
Following an introduction by the President of the Arbitral Tribunal, all those present were introduced and their position and affiliation indicated. Those present at the commencement of the Hearing were as follows:

(a) The Arbitral Tribunal

Dr. Nael G. Bunni, President of the Arbitral Tribunal;
Mr. Andrew de Lotbinière McDougall, Co-arbitrator; &
Dr. Omar Isam Al-Taher Co-arbitrator.

(b) On behalf of the Claimant: Position & Affiliation

1. Mr. Matthew G. Allison, Baker & McKenzie LLP;
2. Mr. Kyle R. Olson, Baker & McKenzie LLP;
3. Ms. Melanie Schueller, Baker & McKenzie LLP;
4. Mr. Anis Zerriny, General Counsel, Cerner; &
5. Mr. Steve Gallagher, General Counsel, Cerner.

(c) On behalf of Respondent No. 1: Position & Affiliation

There was no appearance by or on behalf of Respondent No. 1

(d) On behalf of Respondent No. 2: Position & Affiliation

There was no appearance by or on behalf of Respondent No. 2

8.3.
The Hearing commenced as scheduled on 17th November 2014 and continued until 14:40 in the afternoon of the following day, 18th November 2014. Although the 19th of November 2014 had also been reserved for the Hearing, owing to the fact that neither Respondent No. 1 nor Respondent No. 2 attended the Hearing, this day was not required and was ultimately vacated. A verbatim transcript of each day of the Hearing was taken by Ms. Yvonne Vanvi of 7 rue Georges Baudin, 92500 Rueil-Malmaison, France. This transcript was later received from Ms. Vanvi on 21st November 2014 and was forwarded to the Parties and to the Secretariat on 21st November 2014.
8.4.
Before making introductions, the President of the Arbitral Tribunal noted that there was no attendance by either Respondent No. 1 or Respondent No. 2, despite the fact that both Parties had been duly notified of the dates for the Hearing. Consequently, the Tribunal declared that the Hearing in this case would proceed pursuant to Article 26(2) of the Rules. The President then proceeded to make brief introductions and invited the Claimant to introduce those present at the Hearing on its behalf. Having done so, the Tribunal indicated that it intended to follow the agenda that had been set out by the Claimant in its letter of 24th October 2014, discussed at paragraph 4.28 above. The Tribunal also dealt with the Claimant's application of 13th November 2014, discussed at paragraph 2.5.17 above in respect of the introduction of additional documents to the Tribunal. Based on the fact that neither Respondent No. 1 nor No. 2 had raised any objection to such documents being introduced, despite being requested by the Tribunal to do so, if they wished, the Tribunal, having deliberated, allowed the Claimant to introduce those additional documents. Mr. Allison, on behalf of the Claimant, began his opening statement by providing a brief outline and summary of the Claimant's case and of the Contract between the Parties. Following on from this, the Tribunal questioned Mr. Allison extensively on the question of the jurisdiction of the Tribunal and requested that the Claimant's Closing Submissions provide the legal basis upon which the Claimant asserts that the Tribunal has jurisdiction to deal with this dispute.
8.5.
The Claimant then first introduced its witnesses of fact. Mr. James Massey was the Claimant's first witness, called following the Claimant's Opening Statement. Mr. Massey gave an affirmation and was examined in Chief by Mr. Allison, acting on behalf of the Claimant. Mr. Massey confirmed that the testimony provided within his Witness Statement dated 16th June 2014 discussed within section 7.4 above was true and accurate and briefly outlined the work involved in the contract between the Parties together with the Claimant's performance of that work. Mr. Massey also gave evidence of his involvement in the negotiations with the Respondent in respect of the services that had been provided by the Claimant in respect of which payment was due from the Respondents. Specifically, Mr. Massey gave evidence regarding the history behind the SPA and Amendment No. 5 of the CBA dated 29th December 2012 and the facts that emerged following these two agreements, namely the alleged failure by the Respondents to abide by the terms contained therein and the Claimant's continued performance despite this.
8.6.
Mr. Massey further dealt with the terms of each of those agreements, together with the services that were to be provided thereunder. Mr. Massey stated that pursuant to the terms of the CBA, the Claimant had the right to suspend its services in the event that the Respondent failed to perform and that in that vein the CBA had been terminated and a written Notice of Termination dated 9th September 2014 had been furnished to Respondent No. 150. Mr. Massey stated that, to his knowledge, the MOH had reimbursed Respondent No. 1 for the work that had been carried out by the Claimant pursuant to the terms of the CBA, but that this payment had not been passed on to the Claimant. Mr. Massey however accepted that the Claimant did not have "formal visibility into the iCapital-MOH relationship"51 and the MOH had not furnished information to the Claimant as to the money it had paid to Respondent No. 1 in respect of the Wareed Programme. Mr. Massey was excused at the conclusion of Day 1 of the Hearing.
8.7.
The President of the Tribunal welcomed everyone to the second day of the Hearing, following which Mr. Gadamsi, the Claimant's second witness, was called to provide his evidence. Mr. Gadamsi swore upon the Koran and confirmed that the testimony contained within his Witness Statement, discussed within section 7.3 above, was true and accurate. Having outlined his professional background and the position that he held with the Claimant at the relevant time, Mr. Gadamsi provided his testimony around the interaction of Respondent No. 1 and Respondent No. 2.
8.8.
The Tribunal explained at the outset that owing to the fact that this was an important issue that related specifically to the question of the Tribunal's jurisdiction, its intention was to ask questions of the witness itself as they arose so that the Tribunal could be satisfied that it fully understood the relationship between both Respondents that existed at the time of the CBA, the SPA and Amendment No. 5 of the CBA.
8.9.
Mr. Gadamsi gave evidence surrounding the signature of the SPA, including Respondent No. 1' s acknowledgment within that document that it had failed in its obligation to make payments to the Claimant under the terms of the CBA. Mr. Gadamsi explained that the Claimant had continued to perform its obligations under the terms of the CBA owing to the fact that if it did not, it would suffer damage to its reputation and the health and safety of the patients that were part of the Wareed Programme. Further, Mr. Gadamsi explained the MOH, as the ultimate end-user of the Wareed Programme, was also requesting the Claimant to continue with its obligations. The Tribunal questioned Mr. Gadamsi on what evidence he could put forward to suggest that Respondent No. 2 would honour the outstanding payments to the Claimant. Mr. Gadamsi's response was that he had observed assurances that had been given orally by Respondent No. 2 to Mr. Greg White who was the Claimant's representative in charge of its Middle East Operations, but nothing could be offered to the Tribunal in writing confirming this.
8.10.
Mr. Gadamsi also testified regarding the facts surrounding the restructuring of iCapital from a single proprietorship entity to a LLC. Mr. Gadamsi was unable to recollect if there were any e-mails confirming the Claimant's objection to the restructuring, as such a restructure was not allowed under the terms of the CBA. The Tribunal questioned Mr. Gadamsi further on this, to which he testified that he distinctly remembered telling Mr. Amro Al-Deeb of Respondent No. 1 that the re-structuring was not something that was allowed pursuant to the terms of the CBA.52 Mr. Gadamsi also provided evidence in respect of ICC arbitration case number 18941NRO/AGF (which preceded the SPA) and referred to in paragraph 3.1.8 above, confirming that both Respondents No. 1 and No. 2 had been represented by Messrs. Al Tamimi & Company in that arbitration and that there had been no objection to the jurisdiction of the ICC in that case. Mr. Gadamsi then went on to explain the reason why the Parties in the first arbitration were not the same as those named within these arbitral proceedings. The explanation given was that Respondent No. 1 had reformed itself from a sole proprietorship to a LLC and in respect of Respondent No. 2, even though he was not named within the terms of the SPA, he was nonetheless the sole owner of iCapital S/E when it was a sole proprietorship and proceeded to own 99% of the shares of Respondent No. 1. Further, pursuant to paragraph 7 of the SPA, whilst all claims against iCapital S/E, its directors, officers and employees had been waived, no claim against its owner, specifically Respondent No. 2 had been waived. Accordingly, Respondent No. 2 was still bound to the Claimant. Mr. Gadamsi testified that this was clear to all parties involved at the time the SPA was entered into although accepted that there was nothing in writing to confirm this understanding.
8.11.
Mr. Gadamsi was questioned by the Tribunal on why the Claimant would enter into a further agreement, namely the SPA, but not name Respondent No. 2 as a party to that agreement. Mr. Gadamsi explained that a significant motivating factor was the fact that the Claimant had been given three post-dated cheques by Respondent No. 1 in satisfaction of the outstanding amount due to the Claimant prior to the execution of the CBA, and that under UAE law, "a post-dated cheque that bounces is a criminal offence both against the person that's executing it and the owners of the company to which the signatory is on. So that would have brought into play Mr. Al-Dahari, Mr. Al-Dahari's son and Amro Al-Deeb at the time that those cheques were signed."53 Mr. Gadamsi testified that in addition, it was comforted by the corporate guarantees that had been issued by Belbadi Enterprises LLC, the parent affiliate, in respect of which Respondent No. 2 signed and thereby authorised. Further, Mr. Gadamsi explained that Mr. Amro Al-Deeb had signed the SPA on behalf of Respondent No. 1 and that he had the requisite authority to sign the SPA and Amendment No. 5 of the CBA on Respondent No. 1' s's behalf.
8.12.
Mr. Pascal Maygnan was the Claimant's third Witness of Fact. Mr. Maygnan gave an affirmation and was examined in Chief by Mr. Allison, acting on behalf of the Claimant. Mr. Maygnan confirmed that the testimony, provided within his Witness Statement dated 16th June 2014, discussed within section 7.5 above together with his Supplemental Witness Statement dated 28th September 2014 discussed within section 7.6 above were true and accurate and briefly outlined his position and role as Senior Financial Manager for the Middle East with the Claimant. Mr. Maygnan provided details surrounding the payments that had been made and the defaults that had arisen pursuant to the CBA. Further, Mr. Maygnan provided details surrounding alternative payment plans that were discussed between the Parties between 2010 and 2012, none of which were ever formalised. Mr. Maygnan confirmed there were no pay-when-paid clauses provided for within the Contract and as such, the Claimant was not dependent on Respondent No. 1 being paid by the MOH before the Claimant would be entitled to payment. Mr. Maygnan also gave evidence surrounding the meetings that took place between the Parties following the initiation of the first arbitration that led to the execution of the SP A and Amendment No. 5 of the CBA.
8.13.
In respect of the post-dated cheques that had been provided to the Claimant pursuant to the terms of the SPA, Mr. Maygnan confirmed that the first post-dated cheque had cleared and further, informed the Tribunal that Mr. Al-Dahari, Respondent No. 2, acting on behalf of both of the Respondents, had personally requested the Claimant not to present the second cheque for payment to the bank. Mr. Maygnan added that Respondent No. 2 had assured the Claimant that a Letter of Credit would be issued to it instead. This Letter of Credit, in the name of Respondent No. 1, was accepted by the Claimant and was ultimately cashed on 19th February 2013. Mr. Maygnan was questioned on whether or not "the failure of the post-dated cheque to clear as of January 31st, 2013 was a breach of the terms of the SPA?", to which he responded that it was. On this basis, Mr. Maygnan further testified that the Claimant issued all invoices for those post-dated cheques to Respondent No. 1 in accordance with the terms of the SPA and that whilst the Claimant had attempted to cash the remaining four post-dated cheques, none of those cheques cleared. Mr. Maygnan then provided evidence to the Tribunal on the specific amounts that are being claimed in this case and how those amounts were accrued.
8.14.
Following the conclusion of Mr. Maygnan's testimony, the Claimant's final witness, the Claimant presented its Motion for Adverse Evidentiary Inferences that had been filed with the Tribunal on 6th June 2014.
8.15.
The Tribunal proceeded to discuss a number of minor procedural matters with the Claimant, specifically with respect to the Post-Hearing Submissions and the closure of the proceedings in accordance with Article 27 of the Rules.
8.16.
Further, the Tribunal requested the Claimant to confirm if it had any reason to question the way in which any part of the proceedings had been conducted. The Claimant confirmed that it was happy with the conduct of the proceedings and accordingly, at 14:42 on Tuesday 18th November 2014, the President of the Arbitral Tribunal declared the Hearing closed.

9. THE PARTIES' POST-HEARING SUBMISSIONS

9.1 THE CLAIMANT'S POST-HEARING SUBMISSIONS

9.1.1.
As stated at paragraph 8.17.3 above, on 9th December 2014, the Claimant filed its Post-Hearing Submissions in this Arbitration.
9.1.2.
The Claimant's Post-Hearing Submissions are discussed in the following paragraphs under the following four headings:

• Preamble;

• Witness Evidence;

• Jurisdiction; and

• Costs.

Preamble

9.1.3.
At the outset of its Post-Hearing Submissions, the Claimant once again provided brief background details to the dispute between the Parties named herein, arguing that there could be no question of the liability of Respondent No. 1 in this case as a contracting party to the SPA and the CBA. The Claimant added that Respondent No. 2 was similarly liable for some, if not all, of Respondent No. 1' s debts to the Claimant as the former sole proprietor of iCapital S/E and as the "alter ego of iCapital".
9.1.4.
The Claimant stated that its intention in making its Post-Hearing Submissions was to highlight the factual and legal framework upon which it was entitled to a Final Award in its favour. Specifically, the Claimant argued that, in accordance with the terms of the SPA and Amendment No. 5 of the CBA, the Claimant's performance of its contractual obligations up to 31st October 2012 was confirmed and that in this respect the value of that performance had been defined as the "Overdue Amount". Both Respondent No. 1 and Respondent No. 2 had agreed to pay the said amount and provided a number of post-dated cheques in this respect. Further, both Respondent No. 1 and Respondent No. 2 had affirmed the future payment schedule by Respondent No. 1 for the Claimant's continued performance.
9.1.5.
The Claimant submitted that it had agreed to enter into the SPA and Amendment No. 5 of the CBA on the basis of continued representations that had been made to it from the two Respondents herein that they would be in a position to perform their obligations thereunder, but those representations proved false. In this regard, the Claimant insisted that Respondent No. 2 personally, and through his agents, Mr. Amro Al-Deeb and Mr. Ziad Elhendi, was fully in control of the negotiations on behalf of both Respondents and that no management decision by Respondent No. 1 could be made without the approval of Respondent No. 2. In this regard, the Claimant exhibited a number of e-mails to prove "the intimate involvement of Al-Dahari in all aspects of iCapital's involvement in the Wareed Program".54 These emails were as follows:

(i) An email dated 31st December 2009 from the Claimant's executive and original CBA signatory, Rich Berner, to John Peterzalek, amongst others55;

(ii) An email dated 11th March 2013 from Greg White to John Peterzalek and copied to Pascal Maygnan, Feras Gadamsi, amongst others;56 and

(iii) An email exchange between John Peterzalek and Mike Vesser of the Claimant, dated 11th July 201357.

9.1.6.
The Claimant alleged that Respondent No. 1 was severely under-capitalised at the time of its purported formation and that Respondent No. 2 had unilaterally restructured Respondent No. 1 in an effort to insulate himself from his continuing liability. The Claimant insisted however that, regardless of this restructure, Respondent No. 2 was not absolved from his liability, since as the owner and proprietor of Respondent No. 1, the release provisions of the SPA were not applicable to him and he remained fully liable for the Overdue Amount defined in that agreement. In this regard, the Claimant made reference to the testimony that had been given by Mr. Gadamsi at the Hearing that the SPA was not intended to release Respondent No. 2 from his obligations and that this had been specifically discussed and understood between the Parties during the negotiations that led to the SPA and Amendment No. 5 of the CBA.

Witness Evidence

9.1.7.
The Claimant proceeded to highlight some of the "key... testimony" that had been provided by its Witnesses at the Hearing. In respect of Mr. Massey's evidence, the Claimant submitted that as its lead results executive for the Wareed Programme, Mr. Massey had provided sufficient evidence to the Tribunal relating to the Claimant's performance and Respondent No. 1' s failure to perform, as well as the reasons why the Claimant had continued to perform its obligations despite the alleged breach by the Respondents.
9.1.8.
As the Claimant's Corporate Counsel for the Middle East, the Claimant's next witness, Mr. Gadamsi gave evidence surrounding the negotiations of the SPA and Amendment No. 5 of the CBA, namely the following:

(a) the full and irrevocable acknowledgement that the Claimant had fully performed its obligations under the CBA up to 31st October 2012;

(b) the agreed Overdue Amount for the Claimant's aforementioned performance up to 31st October 2012 and the accrued interest on that Overdue Amount together with the schedule of Deferred and Future Amounts that were acknowledged as being owed by Respondent No. 1;

(c) the Acceleration Clause within Section 4 of the SP A and the triggers that would render that clause operative; and

(d) the agreement to arbitrate contained within both the SPA and Amendment No. 5 of the CBA.

9.1.9.
Specifically in respect of item (d) above, the Claimant also made reference to Mr. Gadamsi's evidence in respect of the Tribunal's jurisdiction over Respondent No. 2 and the contention that Respondent No. 2 had effectively dominated and controlled not only the finances but also the operations of Respondent No. 1 and that as such, there was no substantial difference between the interests of either Respondent. In this regard, the Claimant submitted what it deemed to be "further evidence of Al-Dahari's alter ego control over iCapital ",58 and exhibited a number of e-mails, as set out within paragraph 9.1.5 above, which it submitted, emphasised the level of involvement Respondent No. 2 had in all aspects of the Wareed Programme.59
9.1.10.
The Claimant also made reference within its Post-Hearing Submissions to the evidence that had been provided to the Tribunal by Mr. Maygnan, the Claimant's Senior Financial Manager in the Middle East. Mr. Maygnan's evidence related mainly to the financial aspect of the Claimant's claim and the total damages that the Claimant alleged it had suffered as a result of the Respondents' breaches of both the CBA and the SP A. As of 1st October 2014, the Claimant calculated this figure to be AED215,800,000.00, which said sum did not include the Claimant's fees and costs. Furthermore, the Claimant reminded the Tribunal of Mr. Maygnan's testimony regarding the post-dated cheques that had been issued to the Claimant pursuant to Schedule A of the SPA and "confirmed that when the second post-dated check [sic] failed to clear... 'all payments' became 'due immediately"'.60 The Claimant pointed out that, as Mr. Gadamsi had done, Mr. Maygnan had also confirmed that Respondent No. 2 had exercised direct control over Respondent No. 1's finances, specifically that Respondent No. 2 used Mr. Elhendi and Mr. Al-Deeb on a daily basis to negotiate the terms of the SPA.

Jurisdiction

9.1.11.
However, the bulk of the Claimant's Post-Hearing Submissions related to its submission that the Tribunal had the requisite jurisdiction over both Respondent No. 1 and Respondent No. 2. In respect of Respondent No. 1, the Claimant argued that it had successfully proved that both the SPA and the CBA contain an express arbitration clause calling for exclusive ICC jurisdiction and that each clause broadly encompasses all disputes arising from both the SPA and the CBA. The Claimant added that pursuant to the Rules, the Tribunal had the power to determine its own jurisdiction. In doing so, the Claimant argued that it was clear not only in accordance with the law of the contract61, the law of the arbitration62 or indeed the terms of the New York Convention63 (to which both the US and the UAE were signatories), the Tribunal had the jurisdiction to hear and determine this dispute between the Parties. The Claimant reminded the Tribunal that no evidence to the contrary had been presented by either Respondent in this case and dismissed the "vague and unsupported jurisdiction contentions" that Respondent No. 1 had attempted to make before choosing not to participate in the current proceedings.
9.1.12.
In respect of the Tribunal's jurisdiction over Respondent No. 2 in this case, the Claimant argued that the Tribunal "can and should exercise jurisdiction"64 over Respondent No. 2 on the following two distinct bases:

(a) Respondent No. 2 was 100% the owner and sole proprietor65 of iCapital, and as such was personally liable for all of its obligations, including the agreement to arbitrate any disputes that may arise up to the execution of the SPA, at which time the Claimant agreed to recognise the restructuring of iCapital S/E as a limited liability company. Therefore, the agreed Overdue Amount that was acknowledged as being due and owing to the Claimant for performance of its obligations prior to the execution of the SP A, together with the agreed accrued interest on that amount, is due from both Respondents. The reason proffered for this was that Respondent No. 2 was not released from obligations under the CBA as he was the "owner"66 of iCapital; and

(b) The Claimant insisted that at all times Respondent No. 2 has been the alter ego of iCapital such that jurisdiction over, and liability of, iCapital, is indistinguishable from jurisdiction over, and liability of, Respondent No. 2. Further, the Claimant asserted that the unrebutted evidence had established that iCapital had "no separate mind, will, or existence of its own"67. Respondent No. 2, the Claimant argued, should not be entitled to exercise control and domination over Respondent No. 1, and at the same time, claim he is not personally liable for its debts.

9.1.13.
The Claimant requested the Tribunal to allow additional evidentiary inferences in light of what it asserted to be "the Respondents' refusal to respond to document requests authorized by this Tribunal."68 Those responses, the Claimant argued, would have revealed the lack of any real corporate formalities in the operation of iCapital, and, further, would have supported an alter ego finding against Respondent No. 2. Accordingly, the Claimant submitted that the Tribunal should make such inferences and hold the Respondents jointly and severally liable for the total amount due to the Claimant in this case.

Costs

9.1.14.
In respect of the damages suffered, the Claimant stated that, whilst the principal debt under both the CBA and the SPA had remained the same since 31st October 2014, additional interest had accrued on the unpaid invoices and further, additional fees and costs associated with the within proceedings had been incurred. Therefore, the updated amount being claimed by the Claimant in this case, up to the date of the filing of its Post Hearing Submissions was as follows:

• Unpaid Overdue Amount AED74,042,098

• Unpaid Deferred and Future Payments AED95, 115,289

• Unpaid Accrued Overdue Interest AED28,684, 772

• Unpaid Post-Settlement Interest AED20,928,387

• Collection Fees & Costs AED4,625,628

TOTAL AED223,396,17 4

Reliefs sought by the Claimant

9.1.15.
Accordingly, the Claimant requested the Tribunal to award it "direct damages arising from iCapital's undeniable breaches of contract" and further, make the following specific findings in its Final Award:

The SPA and CBA, including all amendments and schedules thereto, are binding contracts between Cerner and iCapital and are governed by Missouri law.

The arbitration clauses contained in both the SPA and the CBA are valid and binding between Cerner and iCapitaL

Those clauses require arbitration of any disputes between Cerner and iCapital, and all of the contract claims asserted by Cerner plainly fall within the broad scope of those arbitration clauses.

This Tribunal has jurisdiction over iCapital.

This Tribunal has jurisdiction over Al-Daharl

Both Respondents have proper notice of this proceeding, consistent with the Terms ofR eference and basic notions offa irness and due process.

Despite such notice, Respondents have each affirmatively refused to participate in this proceeding, including refusal to appear at the Evidentiary Hearing. Respondents have refu sed to participate despite being served with all of the operative documents in this dispute and being given ample opportunity to respond at consistent points throughout this proceeding, up to and through the conclusion of the Evidentiary Hearing.

Cerner fully performed its obligations under the CBA through October 31, 2012. iCapital fully and irrevocably acknowledged that Cerner performance and irrevocably agreed to pay to Cerner for that performance in the amount AED 118,722,088. The SPA defines this amount as the "Overdue Amount."

iCapital has breached its promise to pay the Overdue Amount. iCapital has paid AED 44,680,000 of the Overdue Amount, but is liable to Cerner in the amount of AED 74,042,098, plus interest.

iCapital has also breached its promise to pay the agreed "Accrued Interest Amount" that became due pursuant to SPA and the CBA, and therefore iCapital is also liable to Cerner in the amount ofA ED 28,684, 772.

As iCapital 's former sole proprietor, Al-Dahari for the debts of iCapital prior to its restricting. (sic)

Al-Dahari is liable for the entirety of unpaid Overdue Amount and Accrued Interest Amount, or 102,726,870.

• Amendment No. 5 to the CBA reschedules certain additional payments from iCapital that were due or were to become due to Cerner, and it defines those payments as "Deferred Payments" and "Future Payments."

• Cerner has continued to perform under the terms of the CBA and is entitled to full payment of the invoices that it has issued to iCapital in compliance with the schedule set forth in Amendment No. 5.

• iCapital has breached its promise to pay those invoices and has not made any payments to Cerner in connection with those invoices. Therefore, iCapital is also liable to Cerner in the amount of AED 95,115,289.

• Cerner is entitled to simple interest at 9% for unpaid amounts. As of December 9, 2014, iCapital is liable to Cerner for interest in the amount of AED 20,928,387.

• Pursuant to both section 5 of the SPA and pursuant to section 7.1(F) of the CBA, Cerner is entitled to fees and costs associated with its effort to recover for iCapital breaches. As of December 7, 2014, iCapital is liable to Cerner in the additional amount of 4,625,628 AED for those fees and costs.

• All of the payment breaches alleged by Cerner constitute claims for breach of the CBA because any breach of the SPA is also a cross-default under the CBA.

• Amro Al-Deeb had both capacity and authority to execute the SPA and the CBA on behalf of iCapital and to execute the arbitration clauses contained in each of those agreements.

• The arbitration provision of the CBA Amendment No. 5 is expressly incorporated into the SPA such that the arbitration provisions in both contracts are identical

• iCapital was severely undercapitalized at the time of its formation and at the time it executed the SPA and CBA Amendment No. 5 with Cerner.

• Al-Dahari has served as the sole equity investor of iCapital such that iCapital would remain severely undercapitalized, if not insolvent, hut for Al-Dahari.

• Al-Dahari has routinely commingled his own funds with those of iCapital, both before and after iCapital Sole Establishment (S/E) ("iCapital SE") was purportedly restructured to iCapital LLC.

• iCapital 's finances, both before and after iCapital SE was restructured to iCapital LLC, have been and are overwhelmingly controlled by Al-Dahari.

• Al-Dahari has used employees or subordinates from other entities within his family of companies to manage the affairs of iCapital.

• iCapital has not kept its own financial records in the ordinary course of business.

• iCapital has not issued financial statements in the ordinary course of business, nor has iCapital or Al-Dahari provided audited financial statements despite Cerner 's express requests/or same and as required under the CBA.

• Al-Dahari purportedly restructured iCapital from a sole establishment to an LLC once iCapital was named in the first arbitration that Cerner filed in September 2012, with the only rational inference being that Al-Dahari did so as a strategic effort to insulate himself from personal liability to Cerner. The Tribunal makes that inference here.

• There is no material difference between iCapital S/E and iCapital LLC, as evidenced by the fact that Al-Dahari purportedly changed from 100% owner of the entity to 99% owner of the entity- while transferring the remaining 1% ownership to his son.

• iCapital has not held typical corporate meetings, including shareholder or hoard of director meetings, and has not passed resolutions or consents in lieu of corporate meetings.

iCapital took no minutes from any shareholder or board of director meetings since no such meetings occurred.

Any and all of iCapital 's business decisions and interactions with respect to the Wareed Project were controlled and dictated by Al-Dahari.

iCapital, at all relevant times to this dispute, has been an alter ego of Al-Dahari, who has owned, managed and controlled iCapital such that iCapital has had no separate mind, will or existence of its own.

iCapital and Al-Dahari share a unity of interest and have disregarded any corporate form in their day-to-day operations and management and in their promises with respect to performance of the CBA and SPA.

Al-Dahari is jointly and severally liable for all of iCapital's debts and obligations to Cerner in relation to the Wareed Program, including the obligation to arbitrate any and all disputes arising from the CBA and SPA.

iCapital and Al-Dahari are jointly and severally liable to Cerner in the amount of 223,396,174 AED. "

9.2 THE CLAIMANT'S SUPPLMENTAL POST-HEARING SUBMISSIONS

9.2.1.
As set out at paragraph 8.17.3 above, on 12th December 2014 the Tribunal requested the Claimant to make submissions in support of its request for an award of Fees and Costs it alleges it incurred as a result of this arbitration. This element of the Claimant's Claim had been summarised in a footnote in the Post-Hearing Submissions (footnote 14), but the Tribunal requested full details of these fees & costs claimed by the Claimant. The Claimant was given until 19th December 2014 to submit these details.
9.2.2.
On 19th December 2014, the Claimant submitted a Supplemental Post-Hearing Submission concerning the fees and costs it claimed in the sum of AED4,625,628.00, i.e. the sum indicated in paragraph 9.1.14.
9.2.3.
The Claimant submitted that there were two categories of costs for which it requested the Tribunal to make an award in its favour. Firstly, it sought costs imposed by the ICC in connection with the administration of the arbitration, the Administration costs; and secondly, it sought to be reimbursed the legal fees and costs incurred by the Claimant, the Legal costs, in its pursuit to recover contract amounts that were due to it from the Respondents.
9.2.4.
In respect of the Administration Costs, the Claimant stated that it had submitted proof that it had paid the entirety of the US$725,000.00 Advance on Costs that had been set by the ICC and accordingly was entitled to be refunded that amount in its entirety.
9.2.5.
In respect of the Legal Costs, the Claimant submitted that it had paid its legal fees to date in the sum of US$370,283.22 and that a remaining amount in excess of US$163,343.00 for unbilled fees and costs for November and December 2014 was also required. Therefore, at the time of its Supplemental Submissions, the Claimant sought payment of AED4,114,800.00 in respect of its overall claim for Fees & Costs in this case.

10. THE TRIBUNAL'S ANALYSIS OF THE ISSUES IN THIS ARBITRATION

10.1 THE TRIBUNAL'S TERMS OF REFERENCE

10.1.1.
As stated in section 5.1 above, three Issues were identified in the Terms of Reference in this arbitration signed on 19th March 2014, which were set out as follows:

"5.1 Does the Arbitral Tribunal have jurisdiction?

5.2 If the answer to the question in paragraph 5.1 above is in the affirmative, then is the Claimant entitled to any of the relief it claimed in its Request and set out in section 3 above?

5.3 By whom, and in what proportions, are the costs of the arbitration to be borne, as defined in Article 3 7 of the Rules? "

10.1.2.
As can be seen from the Prayer for Relief pleaded by the Claimant in its Post-Hearing Submission, quoted in full at paragraph 9.1.15 above, the Claimant has requested the Tribunal to make a number of specific findings within this Final Award. Whilst the three issues set out within the Terms of Reference, dealt with in this Final Award, do not correlate exactly with the specific declarations sought by the Claimant, the Tribunal's analysis of these issues does however deal with many of the declarations sought. Therefore, it should be noted that some of the following matters raised by the Claimant have been absorbed into and form part of the Tribunal's findings. Furthermore, the Tribunal is of the opinion that a specific and individual finding in respect of the following matters would be moot:

• All of the payment breaches alleged by the Claimant constitute claims for breach of the CBA because any breach of the SP A is also a cross-default under the CBA.

• Respondent No. 1 was severely undercapitalised at the time of its formation and at the time it executed the SPA and CBA Amendment No. 5 with the Claimant.

• Respondent No. 2 has served as the sole equity investor of iCapital such that iCapital would remain severely undercapitalized, if not insolvent, but for Respondent No. 2.

• Respondent No. 2 has routinely commingled his own funds with those of iCapital, both before and after iCapital Sole Establishment (S/E) ("iCapital SE") was purportedly restructured to iCapital LLC.

• iCapital's finances, both before and after iCapital S/E was restructured to iCapital LLC, have been and are overwhelmingly controlled by Respondent No. 2.

• Respondent No. 2 has used employees or subordinates from other entities within his family of companies to manage the affairs of iCapital.

• iCapital has not kept its own financial records in the ordinary course of business.

• iCapital has not issued financial statements in the ordinary course of business, nor has iCapital or Respondent No. 2 provided audited financial statements despite the Cliamant's express requests for same and as required under the CBA.

• iCapital has not held typical corporate meetings, including shareholder or board of director meetings, and has not passed resolutions or consents in lieu of corporate meetings.

• iCapital took no minutes from any shareholder or board of director meetings since no such meetings occurred.

• Any and all of iCapital's business decisions and interactions with respect to the Wareed Project were controlled and dictated by Respondent No. 2.

• The only rational inference arising as a result of the restructure of iCapital S/E to iCapital LLC was that Respondent No. 2 did so as a strategic effort to insulate himself from personal liability to the Claimant.

10.1.3.
In this section, Issues 5.1 and 5.2 will be analysed and decided, whereas Issue 5.3 will be decided in section 11 below. However, before delving into the issues that have to be decided in this arbitration, the Tribunal wishes to state unequivocally that it is satisfied that both Respondents in this arbitration were afforded every opportunity of taking part in these proceedings and indeed, Respondent No. 1 did take part in the proceedings, albeit for a short period of time. In this regard, the Tribunal notes that the Secretariat notified both Respondents of the Claimant's Request for Arbitration on 30th August 2013 and in its letter of 4th October 2013 confirmed that both Respondent No. 1 and Respondent No. 2 had received the Request for Arbitration in accordance with the provisions of Article 3(2) of the Rules. Further, on 9th December 2013, the Secretariat confirmed that correspondence to Respondent No. 2 was being delivered and received at the address used. All communications since the commencement of these proceedings between the Tribunal and the Parties have been sent to both Respondents.69 Such communications included the draft Terms of Reference; the actual Terms of Reference signed by the Claimant and the Tribunal; the transcript of the Terms of Reference Hearing and the subsequent Procedural Meeting; the revised Terms of Reference; all pleadings, including Witness Statements, in this case; all Procedural Orders issued by the Tribunal in this case; and the Transcript of the Hearing held in November 2014.
10.1.4.
The Tribunal in assessing the matter of communication with the Respondents, has also taken into account the fact that it knows and has proof that both Respondent No. 1 and Respondent No. 2 have received all communications sent, since again, either intentionally or unintentionally, the Parties have either sent "read receipts" to the President of the Tribunal upon receipt of his e-mails or had the courier packages delivered with acknowledgements of delivery.
10.1.5.
All of the above is relevant in the context that all of the Claimant's claims were uncontested and no evidence was put before the Tribunal that would disprove the Claimant's claims in this case.

10.2 ISSUE 5.1 OF THE TERMS OF REFERENCE - DOES THE ARBITRAL TRIBUNAL HAV E JURISDICTION?

10.2.1.
The issue of jurisdiction in this case is unusual in that it has arisen in circumstances where to all intents and purposes, both named Respondents have failed to participate in these proceedings. The only participation from a defence point of view came at the beginning of these proceedings, where Respondent No. 1 only participated through its legal representatives, Messrs. Al Tamimi & Company, and then withdrew prior to the Terms of Reference being established, without having been provided with a power of Attorney.
10.2.2.
During this time, Respondent No. 1 objected to the jurisdiction of not only the Tribunal but also the conduct of the Court of Arbitration. The Court of Arbitration on 14th November 2013 determined that it was prima facie satisfied that an arbitration agreement existed between the Parties that came within the auspices of the Rules. Accordingly, the Tribunal was appointed and shall now proceed to determine its own jurisdiction in this case in accordance with Article 6(5) of the Rules.
10.2.3.
The Tribunal provided within Procedural Order No. 2, which was issued orally at the conclusion of the Procedural Meeting held on 19th March 2014, and which was further confirmed in writing to all the Parties on 24th March 2014, that the issue of jurisdiction in this case would be decided by the Arbitral Tribunal in the Final Award and the Parties' pleadings in that connection would form part of their subsequent pleadings/submissions. As neither Respondent provided any subsequent pleadings/submissions following Procedural Order No. 2, the only contentions that the Tribunal can refer to from the Respondents are those that were made by Respondent No. 1 from the commencement of this case up to its withdrawal of its Legal Advisors on 11th February 2014.

Jurisdiction over Respondent No. 1

10.2.4.
In its initial correspondence and Answer referred to above, the law firm Al Tamimi & Company submitted that Respondent No. 1 objected to the jurisdiction of the Secretariat and the Court of Arbitration to administer this arbitration and stated that it would challenge the jurisdiction of any Tribunal purportedly confirmed by the Court. Al Tamimi & Company also asserted, on behalf of Respondent No. l, that:

• The allegation that the Claimant made in its Request for Arbitration that there is an existing arbitration clause in Amendment No. 5 of the CBA was irrelevant to this Arbitration since no claim arises or is connected in fact to this contract. It was also proffered that the Claimant had alleged breaches of the SPA, which Respondent No. 1 argued, contained no arbitration agreement. Respondent No. 1 further submitted that a mere reference to an alleged arbitration provision contained in another contract in respect of which no genuine claim was being made did not render the subject claims within the scope of this ICC Arbitration.

• The signatory on behalf of Respondent No. 1 did not have either the capacity or authority to agree to arbitrate any disputes adding that there was no valid incorporation of arbitration clauses in any contract executed by the company's CEO, let alone any valid and binding arbitration agreement between Respondent No. 1 and the Claimant.

• The subject claims are not arbitrable under any applicable law and the Claimant had stated no genuine substantive dispute between the Parties, which is capable of arbitration in any event.

10.2.5.
Messrs. Al Tamimi & Company also asserted that if there was an existing arbitration agreement then the law of the arbitration agreement should be the relevant law of the UAE and the place of the arbitration should be Abu Dhabi, albeit administered by the Court, pursuant to the Rules and conducted in the English language.
10.2.6.
Despite making all of the aforementioned submissions on behalf of Respondent No. 1, Messrs. Al Tamimi & Company confirmed that Respondent No. 1 refused to provide it with a Power of Attorney to act on its behalf in this Arbitration.
10.2.7.
The first question that falls to be determined is whether or not there is a valid arbitration agreement between the Parties in respect of which the disputes that have arisen fall to be determined. The Tribunal accepts the submissions made by the Claimant that there are express arbitration clauses contained in both the CBA and the SPA, with the arbitration clause of the CBA being both explicitly and unambiguously incorporated by reference into the SPA. As such, the Tribunal is in no doubt that the Parties to those agreements agreed to arbitrate any dispute concerning a breach of the SPA under the Rules with Paris, France as the place of the arbitration and Missouri law as the applicable substantive law.
10.2.8.
As is evident from the chronology set out above in this Award, Respondent No. 1 is a signatory to the CBA in its former form as a sole proprietorship and is a signatory to Amendment No. 5 of the CBA as well as to the SPA in its current form as an LLC.
10.2.9.
The original CBA contains a clear and unequivocal arbitration clause in its Section 9.3 providing that disputes shall be submitted to binding arbitration under the Rules and that the place of arbitration shall be Paris, France.
10.2.10.
Amendment No. 5 of the CBA revised that arbitration clause but remained clear and unequivocal that disputes shall be submitted to binding arbitration under the Rules and that the place of arbitration shall be Paris, France unless otherwise agreed. Section 9.3 of Amendment No. 5 of the CBA provides as follows:

"Section 9.3

Section 9.3 (Arbitration and Injunctive Relief) of the CBA is deleted in its entirety and replaced with the following:

"Each Party to this Agreement hereby submits to binding arbitral proceedings in the event of a dispute to be heard under the exclusive jurisdiction of the International Chamber of Commerce ("the ICC") using the Rules of Conciliation and Arbitration of the International Chamber of Commerce then in effect The proceedings shall be heard by a panel of three (3) arbitrators, with each Party selecting an arbitrator and the two selected arbitrators selecting a third, independent arbitrator deemed appropriate to hear the dispute by the ICC. In the event the party-appointed arbitrators cannot agree on a third arbitrator, that arbitrator will be appointed by the ICC. The arbitration shall be conducted in the English language in Paris, France. The Parties may alter the venue for arbitration upon mutual written agreement no later than twenty (20) calendar days after receipt of notice by the non-initiating Party. The Parties agree not to interfere, obstruct, or otherwise impact the enforcement of a lawful, issued, binding, and non-appealable award issued by the arbitral panel in any jurisdiction worldwide. Each party to this Agreement irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The arbitrators shall award the cost of arbitration and any attorneys' fees as just and appropriate except in cases where either Party is explicitly responsible for legal fees in this Agreement or the Settlement Agreement"."

10.2.11.
The SPA states clearly and unequivocally in its Article 15 that the arbitration clause in the revised Section 9.3 of the CBA as per Amendment No. 5 is applicable to the SPA. Article 15 of the SPA provides as follows:

"The arbitration provision set forth in Amendment 5 to the CBA shall be applicable to this Agreement."

10.2.12.
Accordingly, the Tribunal finds that Respondent No. 1 intended to and did submit to the jurisdiction of a Tribunal such as the present one constituted under the Rules with its place in Paris, France in order to decide disputes under the CBA, as amended, and the SPA. It is quite clear from the two extracts quoted within paragraphs 10.2.10 and 10.2.11 above that both the SPA and Amendment No. 5 of the CBA, whilst being two separate agreements entered into between the Parties, are so intrinsically linked, that one would not and does not exist without the other. Clauses within each of those agreements cross-reference clauses within the other agreement and vice versa. This is never more clearly evident than in the arbitration clauses themselves, quoted within the two above-referenced paragraphs. The Parties agreed, in the clearest of terms that "[t]he arbitration provision set forth in Amendment 5 to the CBA shall be applicable to this Agreement." There is no reason for the Tribunal to go behind the clear wording of the Contract, and indeed, no evidence has been presented in this case that would warrant the Tribunal taking such a step. Accordingly, the Tribunal believes and holds that the SPA does contain an arbitration clause.
10.2.13.
The Tribunal also agrees with the Claimant that its claims are for breaches of both the CBA and the SPA. Respondent No. l's failure to make payments to the Claimant was, according to the Claimant, a breach of both agreements and further, the language of the SPA could not be clearer, particularly where it provides under Section 5 that a default under that section would constitute a cross-default of the CBA. Reference is also made to sub-section 3.2 of the CBA, which provided that the payment schedule was as per Exhibit B to Amendment No. 5 of the CBA, which identifies the Overdue Amounts, Deferred Payments together with the Future Payments, that were to be paid by Respondent No. 1.
10.2.14.
In respect of the assertion made by Respondent No. 1 that Mr. Al-Deeb (the signatory on behalf of Respondent No. 1) did not have the requisite capacity or authority to agree to arbitrate any disputes on Respondent No. l's behalf, as the Claimant noted in its submissions and its former in-house counsel, Mr. Gadamsi, testified at the Hearing, Respondent No. 1 explicitly represented that it had the power and authority to enter into the agreements. In respect of the execution of the SPA, this is clear from Clause 9 of the SP A, which states as follows:

"Corporate Representations and Warranties. iCapital hereby represents and warrants to Cerner that (i) it has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and (ii) this Agreement has been duly authorized by all necessary action on its part... "

10.2.15.
Furthermore, Respondent No. 1 delivered to the Claimant a "Special Power of Attorney and Approval of Signature" that gave Mr. Al-Deeb the authority to act on Respondent No. l's behalf in connection with the SPA.70 It is clear therefore that Mr. Al-Deeb had a direct and specific authority to bind Respondent No. 1 to the obligations set out within the CBA and the SPA.
10.2.16.
Indeed, Mr. Al-Deeb sent an e-mail to Mr. Gadamsi dated just one day after the execution of the SPA and Amendment No. 5 of the CBA - with Respondent No. 2 Mr. Al-Dahari copied - to expressly "confirm" the effectiveness of both agreements.71 The recipients of that e-mail included the Claimant's management and Respondent No. 2, who, the Tribunal accepts, "acceded to the statement that was made by Mr. Amro on behalf of iCapital and Mr. Al-Dahari. "72
10.2.17.
The Tribunal is also cognisant of the fact that Section 9 of the SPA expressly warrants that Mr. Al-Deeb had the "full corporate power and authority to enter into this Agreement and carry out its obligations hereunder" and provided that Mr. Al-Deeb "has been duly authorized by all necessary action on [iCapital's] part." The Claimant submitted that it "rel[ied] on this provision to confirm Mr. Al-Deeb's authority to execute the SPA for iCapital"73, and the Tribunal does not believe that it was unreasonable for the Claimant to do so. In this regard, the Tribunal refers to and relies upon the compelling evidence presented by the Claimant's Witness, Mr. Gadamsi of the negotiations leading up to the SPA and Amendment No. 5 of the CBA as well as the Power of Attorney given to the Claimant confirming that Mr. Al Deeb had the requisite authority to bind Respondent No. 1. It is clear from the contents of that Power of Attorney that Respondent No. 2, the owner of Respondent No. 1, signed a Power of Attorney, in which Mr. Al-Deeb was granted the full power and authorization to "sign all transactions and documents ... and to follow up and complete transactions"74 on iCapital' s behalf. The Claimant has suggested that this is a broad Power of Attorney and the Tribunal agrees. There is no limitation mentioned within the "Special Power of Attorney" on what agreements Mr. Al-Deeb could sign on Respondent No. l's behalf. As already stated, he was appointed and authorised to sign "all" transactions and documents, but also, was authorised to "follow up and complete those transactions." This is the wording of the Special Power of Attorney. If there had been a limitation on Mr. Al-Deeb's authority, then such a limitation would have to be clearly specified within the Power of Attorney. No limitation was stated or specified, and in those circumstances, it is clear that Mr. Al-Deeb's authority to enter into and to follow up and complete transactions on Respondent No. l's behalf was, without limitation.
10.2.18.
The Claimant, through its Motion for Adverse Inferences dated 6th June 2014, discussed at paragraph 2.5.8 above, had requested the Tribunal draw adverse inferences from the Respondents' failure to provide documents that would suggest that Mr. Al-Deeb did not have the requisite authority. The Tribunal does not believe that this is necessary in light of its findings at paragraphs 10.2.14 to 10.2.17.
10.2.19.
Finally, in respect of the final objection Respondent No. 1 raised in respect of the Tribunal's jurisdiction over it, namely that the Claimant's claims relating to post-dated cheques, were not arbitrable "under any applicable law", the Tribunal rejects this. The Claimant's claims in this case quite clearly arise as a result of a breach of contract, i.e., the Respondents' failure to pay monies acknowledged as due and owing to the Claimant by the Respondents. The dispute between the Parties in this case is a simple breach of contract case and therefore, the dispute is clearly arbitrable taking into consideration the applicable law of the contract (Missouri law)75 and the law of the place of arbitration (French law)76, being the specific laws that the Parties themselves chose to govern their contracts and their contractual relationship, including any dispute(s) that may arise as a result.
10.2.20.
Accordingly, the Tribunal determines that a valid arbitration agreement between the Claimant and Respondent No. 1 exists and that this Tribunal has the jurisdiction to deal with the disputes in existence between the Claimant and Respondent No. 1 arising from both the SPA and Amendment No. 5 of the CBA.

Jurisdiction over Respondent No. 2

10.2.21.
The Tribunal will now turn to assess whether or not it has the requisite jurisdiction over Respondent No. 2.
10.2.22.
It is clear from the evidence presented to the Tribunal in this case that Respondent No. 2 is not a signatory to Amendment No. 5 of the CBA or the SP A.
10.2.23.
Prior to the Terms of Reference in this case, and despite its insistence that the two Respondents named in these proceedings were separate entities and that they were instructed on behalf of Respondent No. 1 only, Al Tamimi & Company unusually put forward an argument in respect of the Tribunal's jurisdiction over Respondent No. 2, namely that the Claimant had failed to submit any evidence that Respondent No. 2 was party or even signatory in his personal capacity to any document whatsoever, let alone that he was party to any arbitration agreement. As such, it was suggested by Messrs. Al Tamimi & Company that the Tribunal should dismiss the Claimant's attempt to join Mr. Al-Dahari, as Respondent No. 2, to the arbitral proceedings. The Tribunal is firmly of the view that no representation, valid or otherwise, was ever made by Respondent No. 2 in this case on the issue of jurisdiction or on any other issue for that matter. Further, as noted within paragraph 10.2.6 above, no power of attorney from any body purporting to represent Respondent No. 2 in this arbitration, has ever been placed before the Tribunal.
10.2.24.
The Claimant has put forward three factual bases for which the Tribunal should determine that it does have jurisdiction over Respondent No. 2, namely:

(i) Ineffective restructuring of Respondent No. 1;

(ii) Respondents No. 1 & 2 were mere alter egos of each other; and

(iii) Under-capitalisation of Respondent No. 1.

Each of these issues is dealt with separately in the following paragraphs, first as a factual event and then in respect of the related legal basis that follow from and fit into such facts.

Ineffective restructuring of Respondent No. 1 resulting in a continued liability for Respondent No.2

10.2.25.
Arguments have been put before the Tribunal in respect of the restructuring of Respondent No. 1, which the Claimant has argued was ineffective and results in a continued liability for Respondent No. 2. In this respect, the Tribunal accepts that:

• Respondent No. 1 was previously structured as a UAE sole establishment which was 100% owned by Respondent No. 2;

• As sole proprietor of Respondent No. 1, Respondent No. 2 was personally liable for the debts and obligations of Respondent No. 1;

• The restructuring of Respondent No. 1 from iCapital S/E to iCapital LLC did not erase or extinguish the personal liability that Respondent No. 2 had to the Claimant for debts incurred by Respondent No. 1

10.2.26.
The Claimant gave evidence to the Tribunal that the financial condition of Respondent No. 2 as joint obligor of Respondent No. 1 was a "significant factor ' '77 in not only the Claimant's willingness to execute the CBA but also in its continued performance of its obligations thereunder, despite Respondent No. 1' s performance failures. It is clear from the evidence presented to the Tribunal that the restructuring of iCapital S/E took place without notice to the Claimant contrary to the terms of Sub-section 9.16 of the CBA.78 However, the Tribunal believes that such re-structuring did not diminish or 'excuse Respondent No. 2's individual liability for the existing obligations of Respondent No. 1.79
10.2.27.
The evidence before the Tribunal of the negotiations that took place at that time is of particular relevance to this issue. The Tribunal accepts that Mr. Gadamsi and Mr. Greg White (Managing Director of the Claimant at the time) met with Respondent No. 2 himself together with Mr. Al-Deeb, and Mr. Ziad Elhendi, an executive officer of iCapital's much larger affiliate, Belbadi Enterprises LLC (also owned by Respondent No. 2), in the lobby of the Rixos Hotel, The Palm, Dubai in late September 2012. The purpose of the meeting, the Tribunal was told and also accepts, was to begin attempts to settle the dispute prior to proceeding with the next step in arbitration. Mr. Gadamsi was unable to recall with certainty if Messrs. Al Tamimi & Co. were representing both iCapital and Respondent No. 2 at the meeting, but his impression was, "especially considering the willingness of both iCapital and Al-Dahari to engage in settlement discussions only after an agreement not to use such discussions at the arbitration against both iCapital and Al-Dahari individually, was that Al Tamimi was acting for both Respondents at the time. Mr. Elhendi and Mr. Al-Dahari both stressed throughout the negotiations, along with Mr. Al-Deeb, that Belbadi Enterprises fully backed iCapital and that Mr. Al-Dahari had full management control over both enterprises. All deference was accorded to Mr. Al-Dahari with respect to ultimate decision-making by both Mr. Elhendi and Mr. Al-Deeb with respect to iCapital and Belbadi Enterprises each respectively. "80 (Emphasis original)
10.2.28.
Following on from this meeting, in December 2012, the Parties entered into the SPA, which addressed both iCapital's overdue payments together with future payments that would become due and owing to the Claimant under the terms of the CBA. Mr. Gadamsi testified that he had been directly involved in the negotiation of that agreement and stated that the intention of the Parties and the purpose behind the agreement was both to forever quantify the amount owed to the Claimant for past performance, and to reschedule Respondent No. 1' s payment obligations in respect of the Claimant's future performance.
10.2.29.
It is clear from the terms of the SPA that it addressed events prior to 31st October 2012, and embodied the Parties' agreement that, as of that date, AED118,722,088.00 was due and owing from iCapital S/E to the Claimant. This was expressly defined in the Agreement as the "Overdue Amount". Further, it is clear to the Tribunal that the SPA contains Respondent No. 1's explicit acknowledgement of the Claimant's full performance of the CBA up to the effective date of the Agreement, and explicitly waived any claims of breach with respect to any past performance prior to the effective date of such agreement. As well as entering into the SPA, the Parties also executed Amendment No. 5 of the CBA, which scheduled both a series of deferred payments and a series of future payments, for services that the Claimant was continuing to provide pursuant to the CBA.
10.2.30.
Mr. Gadamsi provided evidence to the Tribunal that the purported restructuring of iCapital S/E as an LLC under UAE law, in or around the middle of 2012, led him to object "to the restructuring and den[y] any legal effect upon the personal obligation of Al-Dahari to pay the outstanding debts of iCapital at that time. "81 This, Mr. Gadamsi pointed out, was in accordance with the terms of the CBA, which specifically forbade such a restructuring without the consent of the Claimant. The terms of the SP A clearly indicate that iCapital S/E had, at that stage, re-organized itself from a sole establishment to a limited liability company and placed the obligations of the SPA and Amendment No. 5 of the CBA upon Respondent No. 1. The Tribunal accepts that Respondent No. 2 was not a signatory to the SPA or Amendment No. 5 of the CBA in his personal capacity as the former sole proprietor of iCapital S/E. However, the Tribunal is of the opinion that he remained personally liable for the agreed Overdue Amount, which related to the Claimant's acknowledged performance prior to its consent to the restructuring of iCapital S/E.
10.2.31.
The timing of the re-structuring of iCapital S/E is also of significant relevance to the Tribunal, in that it occurred in or around the same time as the Claimant commenced its first arbitration in September 2012, which then led to the SPA being entered into. In this regard, the Tribunal determines that the restructuring of iCapital from a Sole Establishment to a Limited Liability Company was made in direct contravention of the clear stipulation within the terms of the CBA, which required the Claimant's consent for such a restructure to be validly made.

Respondents No. 1 & 2 as mere alter egos of each other

10.2.32.
Submissions were also put before the Tribunal in respect of the interests shared between the two Respondents and whether or not there were factual grounds that would warrant the Tribunal piercing the corporate veil. The Claimant submitted that Respondents Nos. 1 and 2 were mere alter egos of each other, in that they shared a complete unity of interest and disregarded the corporate form in their operations, in their management structure, and in their promises with respect to performance of the Amended CBA, as well as the SPA82
10.2.33.
The Claimant argued that Respondent No. 1 continued to operate exactly as iCapital S/E had done: it had the same offices, the same business purpose, the same employees, and, as such, there should be no distinction in Respondent No. 2's personal liability for the debts of either entity.
10.2.34.
In this regard, the Tribunal relies on the evidence of Mr. Gadamsi, former in-house Counsel of the Claimant and witness of fact on its behalf whose evidence at the Hearing the Tribunal considered particularly credible and helpful. As Mr. Gadamsi explained in his witness statement, both iCapital, and its primary shareholder, Respondent No. 2, made express promises that iCapital would clear its debt to the Claimant and that Respondent No. 2 would guarantee that the Claimant would be paid. Mr. Gadamsi was insistent that there was "no legal distinction between the two Respondents ' ',83 and as such, the Claimant relied upon these promises in its decision to forego a more prompt arbitral adjudication of its payment rights. It was this decision that led the Claimant and iCapital (being represented by Messrs. Al Tamimi & Co.) to agree "to enter into settlement negotiations that could not be used in any arbitration"84.
10.2.35.
Whilst Respondent No. 2 used employees from other entities to help lead the negotiations surrounding the SP A with the Claimant, the Tribunal is in no doubt that it was Respondent No. 2 himself who was the ultimate arbiter of decisions. As Mr. Gadamsi testified at the Hearing, Mr. Al-Dahari was the "sole proprietor" of iCapital S/E, owning 100% of the company and having full management control over it85, and, as iCapital's sole proprietor, Mr. Al-Dahari was "personally responsible" for the "entirety of " iCapital's debts.86 As Mr. Gadamsi confirmed, "a promise by iCapital would have been equivalent to a promise by Al-Dahari. "87 The Claimant believed that "Mr. Al- Dahari is iCapital, and we felt that he was still responsible for the debts of his - of the companies that he owned. "88
10.2.36.
Respondent No. 2, the Claimant put forward, is the 99% shareholder of the newly re-organized iCapital LLC, Respondent No. 1 herein, and as such, wielded all power over not only iCapital S/E, but also its successor entity, Respondent No. 1.
10.2.37.
A further argument put forward by the Claimant, which was confirmed by Mr. Gadamsi, was that Mr. Al-Dahari, as iCapital S/E's sole proprietor, certainly remained liable for the AED74 million Overdue Amount that remains unpaid (together with AED28.6 million in Accrued Interest) because he was never released from his obligation for pre-conversion of iCapital debts. In support of this assertion, Mr. Gadamsi, as one who personally negotiated the SPA on the Claimant's behalf, explained that the Parties, in negotiating and finalizing the SPA, intentionally did not include Mr. Al-Dahari in the SP A's waiver provision in order to maintain his liability in respect of iCapital's pre-LLC liability:

"We definitely wanted to move on and turn the page, but with the past due amount, that was something... that had already accrued. So that was something that we felt very strongly about iCapital and Mr. Al-Dahari being responsible for. "89

10.2.38.
This is clear from the unambiguous terms of paragraph 7 of the SPA: whilst all claims against iCapital S/E, its directors, officers and employees had been waived, no claim against its owner, specifically Respondent No. 2, had been waived. Accordingly, Respondent No. 2 was still bound to the Claimant. Mr. Gadamsi testified that this was clear to all Parties involved at the time the SPA was entered into. A further matter, which the Tribunal finds relevant, is that Section 7 of the SPA relates specifically to a waiver and release of past claims to the Parties of that agreement. As Respondent No. 2 was not a party to the SPA, he cannot thereby come within the ambit of the waiver contained therein.
10.2.39.
Mr. Gadamsi in his evidence before the Tribunal, made reference to the meeting that was held at the Rixos Palm Hotel in Dubai, as already discussed at paragraph 10.2.32 above, and confirmed that there were multiple direct communications with Respondent No. 2.90 In that meeting, and in all other meetings with iCapital, Mr. Gadamsi testified that there was no "substantive difference" between iCapital's interests and those of Respondent No. 2 in terms of the settlement of the dispute with the Claimant.91 Whilst acknowledging that Mr. Ziad Elhendi and Mr. Al Deeb were also in attendance at that meeting with Respondent No. 2, and that additional direct settlement negotiations had taken place with Mr. Elhendi and Mr. Al Deeb92, Mr. Gadamsi insisted "there was never any question, whether through subordinates or directly, that it was Mr. Al-Dahari making the decisions on behalf ofiCapital".93
10.2.40.
The Tribunal accepts Mr. Gadamsi's assertion that "Mr. Al-Dahari was calling the shots for both iCapital and Belbadie Enterprises. That was clear. "94 Such a suggestion makes complete sense in terms of Respondent No. 2's vested interest in both iCapital and in the outcome of the settlement negotiations.
10.2.41.
Upon being questioned by the Tribunal as to why the Claimant would enter into a further agreement, namely the SPA, and not name Respondent No. 2 as a party to that agreement, Mr. Gadamsi explained that a significant motivating factor was the fact that the Claimant had been given three post-dated cheques by Respondent No. 1 in satisfaction of the outstanding amount due to the Claimant prior to the execution of the CBA, and that under UAE law "a post-dated cheque that bounces is a criminal offence both against the person that's executing it and the owners of the company to which the signatory is on. So that would have brought into play Mr. Al-Dahari, Mr. Al-Dahari's son and Amro Al-Deeb at the time that those cheques were signed. "95 Mr. Gadamsi also testified that the Claimant had been comforted by the corporate guarantees that had been issued by Belbadi Enterprises LLC, the parent affiliate, all of which Respondent No. 2 signed and authorised.
10.2.42.
With its Post-Hearing Submissions, the Claimant added to the evidence in this regard, exhibiting further e-mails demonstrating what it alleged was "the intimate involvement of Al-Dahari in all aspects of iCapital's involvement in the Wareed Program".96 These were:

a. An e-mail from an executive of the Claimant and original CBA signatory, Mr. Rich Berner, dated 31st December 200997, demonstrating that Mr. Al-Dahari was the sole financial and operational decision-maker for iCapital. iCapital had already fallen substantially behind on its payments to Cerner under the CBA as of December 2009, prompting the Claimant's efforts to negotiate a business solution for iCapital to become current. As Mr. Berner noted, Cerner attempted to meet with Mr. Al-Deeb "per Ahmed [Al-Dahari's] instructions this morning", and the Claimant tried to focus Mr. Al-Deeb on "getting the $6.1M wired versus discounting with help from Ahmed [Al-Dahari] by calling the bank." Mr. Berner then recommended that another Claimant representative, Trace Devanny, directly call Mr. Al-Dahari to "ask he write us a check for the $10M or wire by Saturday."

b. An e-mail dated 11th March 201398 confirming Mr. Al-Dahari's sole control over iCapital and its involvement in the Wareed Programme. The e-mail communicated that the MOH had "grown tired" of iCapital's failure to honour its commitments within the Wareed Programme, both operationally and financially. As Mr. White of the Claimant noted, the MOH would likely opt to address iCapital's ongoing performance failures "directly" with "Ahmed [Al-Dahari] behind closed doors in an Emirati-to-Emirati discussion. "

c. An e-mail exchange between Mr. John Peterzalek and Mr. Mike Vesser of the Claimant, dated 11th July 201399, reinforcing the notion that it was Mr. Al-Dahari who needed to confirm and approve any iCapital action. The e-mail runs contemporaneously with a discussion that Mr. Peterzalek had with Mr. Al-Dahari regarding iCapital's growing debts to Cerner. In it, Mr. Vesser asked Mr. Peterzalek: "How did the conversation with Ahmed [Al-Dahari] go last night?", to which Mr. Peterzalek responded: "We had a short but pointed discussion... pretty much the same outline and promises... [Al-Dahari] and I will speak in a week... he felt he would have some $$ by then. "

10.2.43.
The Tribunal is of the view, certainly in respect of Mr. Peterzalek's e-mail, which refers to a contemporaneous discussion he had with Respondent No. 2 on or around 11th July 2013, that Respondent No. 2 was a source, if not the main source, of funds for iCapital's payment obligations to the Claimant. All of these allegations regarding Respondent No. 2's role were confirmed by the Claimant's witness Mr. Maygnan who testified that Respondent No. 2 wielded direct control over iCapital's finances, who had used Mr. Elhendi and Mr. Al-Deeb to negotiate the terms of the SPA in 2012, who would revert back to Respondent No. 2 and "use his feedback to continue the discussion. "100
10.2.44.
Mr. Maygnan also testified that, following the execution of the settlement contracts, Respondent No. 2 "personally came to a booth at a trade show" where Mr. Maygnan and Mr. Greg White of the Claimant were present and specifically "asked us to not present the cheque on the due date of January 31st and that he instead would arrange for a letter of credit to be issued to Cerner. "101 Mr. Maygnan testified that Respondent No. 2 had explained that he did not want the Claimant to present the second post-dated check because "there was not enough funds in the iCapital account to honour that cheque and that that cheque would bounce... if [Cerner] presented it. "102 The Tribunal found Mr. Maygnan's testimony in this respect to be particularly compelling and accepts, in the absence of evidence to the contrary, that this exchange did indeed happen.

Undercapitalisation

10.2.45.
Arguments were also put before the Tribunal by the Claimant in respect of the inadequate capitalisation of Respondent No. 1 and the Claimant submitted that this should not be used as a vehicle for Respondent No. 2 to avoid personal liability for the debts of Respondent No. 1.
10.2.46.
Mr. Gadamsi explained in his Witness Statement that Respondent No. 1 was undercapitalized at the time of its formation in 2012 since soon after its formation, pursuant to the terms of the SPA, it presented post-dated cheques to the Claimant in the amount of AED118 million, with an express promise that funds would be available when the dates on the cheques came current, and yet it is now obvious that Respondent No. 1 did not have sufficient funds for those payments. It is notable that at various times in these proceedings, the Claimant has presented arguments that suggest that it was iCapital who made the express promise that funds would be available103, and at

other times, has presented arguments that suggest that it was both iCapital as well as Respondent No. 2 who made such express promises104. These facts further corroborate the allegations made by the Claimant and the findings of the Tribunal, that the relationship between Respondent No. 1 and Respondent No. 2 regarding dealings relating to the CBA, the SPA and Amendment No. 5 to the CBA were so intrinsically linked that it would be incorrect and wrong to distinguish between the two Respondents in this case.

10.2.47.
Mr. Gadamsi explained further that Respondent No. 2, having reformed iCapital as an LLC in, what the Claimant alleged was, an effort to insulate himself from personal liability for the increasing debts of iCapital S/E, was obligated to capitalize the company with sufficient funds to allow it to perform under its existing contractual commitments. There is no doubt that Respondent No. 2 failed to do so, and further has failed to prove he has done so.

The Law

10.2.48.
The Tribunal questioned the Claimant at the Hearing regarding what law should apply to the issue of jurisdiction.105 More specifically, the Tribunal questioned the Claimant about the law of the contract (Missouri law), the law of the place of arbitration (French law), the law where Respondent No. 1 was incorporated (UAE law), and transnational principles that might apply and asked the Claimant how it reached the conclusion that Missouri law is the law it should tum to on the issue of jurisdiction.106 The Claimant made oral submissions in this regard at the Hearing, and argued that whilst Missouri law is the relevant law, there was support for the law of the place of arbitration being applied, namely French law, with the application of either law leading to the same answer.107 The Tribunal requested that the Claimant submit any specific authorities it relied upon in this regard with its Post-Hearing Submissions108, which the Claimant did109.
10.2.49.
In its Post-Hearing Submissions, the Claimant submitted that irrespective of whether the Tribunal considers only the Contract itself (a transactional notion of arbitration jurisdiction), or whether it looks at the law that the Parties chose to govern their contract relationship (US), the law where the arbitration hearing was held (French), or the law of the international arbitration treaty to which the US and the UAE are both signatories (the New York Convention), all sources support the unambiguous choice made by these commercial parties, i.e., that all sources support finding that jurisdiction exists over both Respondents.110 The Claimant submitted further that "under both Missouri law and French law, this arbitration clause is plainly enforceable and encompasses this straightforward contract dispute. "111
10.2.50.
In this regard, the Claimant submitted that there were two legal bases in support of its argument that the Tribunal had the requisite jurisdiction over Respondent No. 2112:

(i) Respondent No. 2 was the Sole Proprietor of iCapital S/E and therefore was liable for iCapital S/E's legal obligations, and Respondent No. 2's attempt to escape personal liability as sole proprietor by restructuring iCapital S/E into Respondent No. 1 should not be rewarded; and

(ii) Respondent No. 1 is the alter-ego of Respondent No. 2 and as such, the corporate veil between them both should be lifted.

10.2.51.
Based on the presentation of the facts and authorities put forward by the Claimant, the Tribunal considers that the Claimant's arguments in effect are that Respondent No. 2 has implicitly consented to the arbitration agreement and has also abused the corporate form in a manner justifying the lifting of the corporate veil to bind Respondent No. 2 to the arbitration agreement. Dealing with the submissions presented in respect of item (i) in the previous paragraph, in order for Respondent No. 2 to be found liable for the legal obligations of iCapital S/E, the Claimant must have proved, in accordance with UAE law, that iCapital S/E was "a sole proprietorship". This proposition emanates from the decision of the Dubai Court of Cassation in Decision No. 20/2008 of 2nd March 2008, which provides as follows:

"A private commercial establishment or a sole proprietorship has no legal personality independent of the person of its owner or the holder of the trade license relating to it. Such establishment is just one of the elements of his own financial liability, and the owner of it or the owner of the relevant trade license will bear the obligations and debts of it. A judgment passed against it will be enforceable as against him to the extent that the judgment shows that the establishment has a liability. "

10.2.52.
The Tribunal accepts firstly, that iCapital S/E, as the name itself indicates, was a sole proprietorship, that was owned wholly and exclusively by Respondent No. 2. As such, the Tribunal determines, in accordance with the decision of the Dubai Court of Cassation, quoted in the previous paragraph, that iCapital S/E had no "legal personality independent of" Respondent No. 2 in this case, being "the person of its owner or the holder of the trade license relating to it." Accordingly, it is clear, following the Decision of the Dubai Court of Cassation quoted above, that Respondent No. 2 "as the owner of [iCapital S/E]... will bear the obligations and debts of [iCapital S/E]". Therefore, the Tribunal determines that Respondent No. 2 is personally liable for all of iCapital S/E 's obligations. The Tribunal's finding is further supported by the decision referred to by the Claimant in Minn. Laborers Health & Welfare Fund v. Scanlan113, where the Court held that a sole proprietor is personally liable for all debts of the sole proprietorship even where that sole proprietorship converts to a limited liability company.114 Accordingly, based on the facts and authorities before the Tribunal referred to above, even after the restructure of iCapital as a limited liability company, it is clear that Respondent No. 2 as a matter of fact had consented to be bound by the arbitration clause and was not released from obligations under the CBA as the "owner" of iCapital, including the agreement to arbitrate any disputes that may arise up to the execution of the SPA, at which time the Claimant agreed to recognise the restructuring of iCapital as a limited liability company. In this respect, the Tribunal specifically refers to its findings at paragraph 10.2.38 above, where it is noted that claims against Respondent No. 2 as owner of iCapital, had not been waived and accordingly, Respondent No. 2 remained liable to the Claimant.
10.2.53.
The Tribunal turns now to deal with item (ii) above, and whether or not there is sufficient evidence before it that would warrant the corporate veil between Respondent No. 1 and Respondent No. 2 being lifted. For the Claimant to be successful in this argument, the Tribunal must determine that the degree of control exercised by Respondent No. 2 over the affairs of Respondent No. 1 was sufficient to determine that effectively, Respondent No. 2 was the alter ego of Respondent No. 1.115 In this respect the Claimant relied upon the case of 66, Inc. v. Crestwood Commons Redevelopment Corp.116, where the plaintiff sued a corporation that was owned by a joint-venture. The plaintiff in this case argued that the joint-venture should be held liable for the corporation's debt. In reaching its decision, the Court provided as follows:

"The degree of control that [the joint venture] exercised over [the corporation] equals or exceeds the degree of control that... is sufficient to find that the corporation is the alter ego of its shareholders in order to pierce the corporate veil and hold the shareholders liable for the corporation's legal obligations. "117

10.2.54.
The Tribunal is satisfied that the evidence presented by the Claimant in respect of the involvement of Respondent No. 2 in the affairs of iCapital, proves that at all material times, Respondent No. 2 has been the alter ego of iCapital such that jurisdiction over, and the potential liability of iCapital, is indistinguishable from jurisdiction over, and the potential liability of Respondent No. 2. The Tribunal's decision in this respect has been compelled by the evidence that has been presented in this case, particularly surrounding the meeting held in the Rixos Palm Hotel; the negotiations of the SPA and the significant involvement of Respondent No. 2 in those happenings. The Tribunal accordingly, is left in no doubt as to the control that he ultimately exercised over Respondent No. 1. The Tribunal finds of particular relevance in this respect the emails that were submitted by the Claimant in its Post-Hearing submissions, discussed at paragraph 10.2.42 above, as well as the approach that was made by Respondent No. 2 to representatives of the Claimant at the trade show, as referenced within paragraph l 0.2.44 above. There are other considerations that the Court in 66, Inc. v. Crestwood Commons Redevelopment Corp., considered, namely the criteria that should be established so as to warrant a court or this Tribunal "disregard[ing] the corporate entity and hold[ing] the corporate owners liable", namely:

"1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and

2) Such control must have been used by the corporation to commit fraud or wrong, to perpetrate the violation of statutory or other positive legal duty, or dishonest and unjust act in contravention of plaintiffs legal rights; and

3) The control and breach of duty must proximately cause the injury or unjust loss complained of. "118

The Tribunal has considered each of these criteria. Firstly, as the Tribunal has already found and determined at the beginning of this paragraph, the involvement of Respondent No. 2 in the affairs of iCapital proves that, at all material times, Respondent No. 2 has been the alter ego of iCapital to such an extent that iCapital had at no time, any "separate mind, will or existence of its own"119. Secondly, the Tribunal is in no doubt that the control exercised by Respondent No. 2 in this case, not only in terms of iCapital's finances and the decision to restructure iCapital S/E, but also in the decision surrounding the timing of the restructure and the purpose behind the restructure was used in an effort "to commit... [a] wrong, to perpetrate the violation of... [a] positive legal duty... in contravention of [the Claimant's] legal rights", namely by breaching the clear terms of the CBA, the SPA as well as Amendment No. 5 to the CBA. The Tribunal is further satisfied that this control that was exercised by Respondent No. 2 over iCapital, and the resultant violation of iCapital's positive legal duty under the terms of the CBA, the SPA and Amendment No. 5 to the CBA, led to the claims that the Claimant has made in this case. Accordingly, the factual circumstances, as proved to the satisfaction of the Tribunal in this case, warrant the Tribunal's finding that it has jurisdiction over Respondent No. 2 in this case.

10.2.55.
Whilst arguments were put forward to suggest that the undercapitalisation of Respondent No. 1 by Respondent No. 2 should lead the Tribunal to disregard the existence of Respondent No. 1 and made Respondent No. 2 personally liable, (i.e. pierce the corporate veil) the Tribunal finds that the evidence and legal arguments submitted by the Claimant are not sufficient to establish jurisdiction over Respondent No. 2 on this basis. This however does not change the fact that in light of the Tribunal's findings at paragraph 10.2.51 above, the Tribunal does have the requisite jurisdiction over Respondent No. 2 in this case.
10.2.56.
It should also be noted that the Claimant, through its Motion for Adverse Inferences dated 6th June 2014, discussed at paragraph 2.5.8 above, had requested the Tribunal draw adverse inferences from the Respondents' failure to provide documents that would prove that Respondent No. 2 was not the alter ego of Respondent No. 1; that neither of the Respondents shared a unity of interest; or indeed that Respondent No. 2 should not be held jointly and severally liable for the debts of Respondent No. 1. The Tribunal does not believe that this is necessary in light of its findings at paragraphs 10.2.29 to 10.2.54 above.

10.3 ISSUE 5.2 OF THE TERMS OF REFERENCE-IS THE CLAIMANT ENTITLED TO THE RELIEF CLAIMED WITHIN THE REQUEST FOR ARBITRATION

10.3.1.
Having decided that the Arbitral Tribunal has jurisdiction over Respondent No. 1 and Respondent No. 2, it is now appropriate that it deals with the remaining issues in this arbitration. There were essentially four claims made by the Claimant contained in Issue 5.2, which were in respect of the following:

• Unpaid Overdue Amounts;

• Unpaid Accrued Interest on the Overdue Amounts;

• Unpaid Deferred and Future Payments; and

• Unpaid Post-Settlement Interest.

10.3.2.
Each of these claims will be dealt with separately in the following parts of this section of the Award.

10.4 UNPAID OVERDUE AMOUNT - AED74,042,098.20

10.4.1.
This part of the Award will deal with the Claimant's claim for "Unpaid Overdue Amounts", which is calculated at AED74,042,098.20.
10.4.2.
The Tribunal accepts that on or about 7th October 2008, iCapital S/E entered into a contract with the MOH of the UAE in respect of the provision of a Health Information System, the purpose of which was to create a consolidated electronic medical information platform in the UAE. This project was known as the Wareed Programme. iCapital S/E, pursuant to that contract, was the general/main contractor for the Wareed Programme and, as such, was responsible for subcontracting with third parties to provide the products and services necessary to create the consolidated electronic medical information platform. One of those subcontracts was the contract the subject matter of these proceedings that was entered into between iCapital S/E and the Claimant, also known as the CBA.
10.4.3.
Pursuant to the terms of the CBA, the Claimant was contracted to design, install, implement and maintain the Wareed Programme's platform of health care information, software solutions and related equipment. It is clear to the Tribunal from the terms of the CBA that there was express provision for detailed payment schedules, more precisely, specific date-based payments that were to be made by iCapital S/E to the Claimant.
10.4.4.
The Claimant has argued before the Tribunal that, in accordance with its obligations under the terms of the CBA, the Claimant delivered the software called for under the CBA in September 2008 and began its implementation efforts. The Claimant also argued that it had implemented and maintained the key licensed software that would allow health care information to be accessible to, and utilised by, UAE medical professionals on an integrated electronic platform. Further, the Claimant granted iCapital S/E a software license; provided related hardware and equipment; and delivered specifically defined installation, implementation, maintenance, support and other professional services.120
10.4.5.
The Tribunal has no reason to doubt that this was indeed the case for the following reasons. Firstly, no evidence to the contrary has been put before this Tribunal, despite both Respondents being afforded ample opportunity to do so. Secondly, the work that the Claimant alleged to have been carried out by it under the terms of the CBA has been acknowledged and indeed documented in a further contract entered into between the Parties on 29th December 2012, namely the SPA signed by the Claimant, Respondent No. 1 and Messrs. Belbadi Enterprises LLC, of which Respondent No. 2 was noted to be the Chairman.121
10.4.6.
The Claimant submitted that "[g]iven the performance acknowledgement contained in the SPA, [the Claimant] need not present any detailed proof of its performance prior to October 31, 2012 " and that given the Respondents' refusal to participate in these proceedings "the attestations contained in the... Witness Statements concerning post-settlement performance by [the Claimant] are uncontested. "122
10.4.7.
The Tribunal is indeed convinced that an appropriate starting point for analysing and determining the issue of the Claimant's claim for Unpaid Overdue Amounts is the SPA. This conclusion was arrived at due to the explicit acknowledgement contained in Paragraph (B) of the Preamble to the SPA, whereby Respondent No. 1 expressly confirms the Claimant's full performance of the CBA up to the effective date of the Agreement, and the Claimant's entitlement to certain overdue amounts.
10.4.8.
The Tribunal notes, in particular, Paragraph (B) of the Preamble to the SPA, which provides as follows:

"the Parties have determined, through direct, good faith, knowledgeable negotiation, and mutual settlement, that the principal amount owed to Cerner and past due through October 31, 2012 (the "Overdue Amount Settlement Date") under the CBA for past performance by Cerner of its obligations thereunder equals one hundred eighteen million, seven hundred twenty two thousand, eighty eight Arab Emirati Dirhams (AED 118, 722,088) (the "Overdue Amount")".123

10.4.9.
Furthermore, Paragraph (C) of the Preamble to the SPA provides that "the Parties desire to enter into this Agreement, setting forth the schedule and form of payments to be made to Cerner for the Overdue Amount, which amount has never been paid or contested".124
10.4.10.
In light of the clear and unequivocal declarations in the SPA, which was signed by Respondent No. 1 and of which the Tribunal is in no doubt that Respondent No. 2 was equally aware and conscious of, the Tribunal is convinced of the Claimant's full performance of the CBA up to the effective date of the Agreement, and the Claimant's entitlement to certain overdue amounts. Respondent No. 2 was, as the Tribunal has already determined125 heavily involved in the negotiations surrounding the SP A and it would be a nonsense to suggest that the SP A would have contained such clear and unequivocal declarations if the Claimant's had in any way failed to perform its obligations under the CBA.
10.4.11.
The Claimant submitted that the SPA was executed following repeated payment breaches by Respondent No. 1 and was negotiated and executed to resolve an initial arbitration filed by the Claimant against Respondent No. 1, Respondent No. 2 and iCapital Sole Establishment.126 The Claimant further asserted that this Agreement is reflective of the terms that were agreed as of 29th December 2012 regarding the sum of AED118,722,088.00 that the Claimant asserted was due and owing to it by Respondent No. 1.127 Further, the SPA sets out a schedule, Schedule A, by which Respondent No. 1 was required to make incremental payments towards the Overdue Amount of AED118,722,088.00 and further obliged Respondent No. 1 to provide a series of post-dated cheques to the Claimant as security for such incremental payments.128
10.4.12.
Article 4 of the SPA stipulates that "in the event any payment owed pursuant to this Agreement is not honoured when presented for payment in accordance with Schedule A (Payment Schedule) or otherwise post in Cerner's account as clearing in accordance herewith, the full amount of that payment and all remaining payments under this Agreement... shall be accelerated and shall become immediately due and payable in full".
10.4.13.
Additionally, the SP A makes reference to the "Effective Date Accrued Interest Amount", as defined in Amendment No. 5 of the CBA129, and provides that if Respondent No. 1 breached its payment promise before full payment of the first three payments called for in the Schedule (totalling AED58, 750,490.37), that an agreed amount of Accrued Interest of AED28,684, 772.00 would become immediately payable. In this respect, Article 3.3 of Amendment No. 5 of the CBA provides:

"The Client acknowledges that interest in accordance with Section 7.1 (F) (general) of the CBA has accrued for late payments owed to Cerner by the Client in the amount of AED 28,684, 772 as of October 31, 2012 (such amount, the "Accrued Interest Amount"). Cerner agrees to waive its right to the Accrued Interest Amount the Effective Date (with no chance of revival) in its entirety upon the fulfilment of all conditions precedent required to effectuate this Amendment and the clearance of post-dated cheque nos. 1, 2, and 3".

10.4.14.
The Claimant submitted that the first post-dated cheque in the amount of AED9, 175,000.00 was presented for payment on its due date of 29th December 2012, and that it was subsequently cleared and posted in its account.130
10.4.15.
Mr. Pascal Maygnan, the Claimant's Finance Manager, testified during Day 2 of the Hearing conducted on 18th November 2014 as follows:

"Mr. Allison: Let's talk about the first cheque. The date of the first post-dated cheque is what?

Mr. Maygnan: So the date is December 29, 2012.

Mr. Allison: Is that the same date; it's the date of the Settlement Agreement and Amendment No. 5?

Mr. Maygnan: Yes, I believe.

Mr. Allison: And did Cerner present that cheque for payment on December 29, 2012?

Mr. Maygnan: Yes, we presented the cheque as soon as we got it.

Mr. Allison: And did the cheque clear?

Mr. Maygnan: Yes, it cleared.

Mr. Allison: And Cerner has received 9,175 million Dirham as a result of that?

Mr. Maygnan: We did receive it.

Mr. Allison: And so that has reduced the overdue amount to 109. 6 million Dirham approximately?

Mr. Maygnan: Exactly. "

10.4.16.
The Claimant stated that the second post-dated cheque in the amount of AED14,825,000.00 was not presented for payment on its due date of 31st January 2013. The reason for this proffered by the Claimant was that Respondent No. 2 had requested this, advising the Claimant that funds were not available in Respondent No. 1 's account and offered instead to issue a letter of credit in favour of the Claimant for the value of the second post-dated cheque. The Claimant affirmed that it has subsequently received the full value of this second post-dated cheque.
10.4.17.
This information was borne out by Mr. Pascal Maygnan, the Claimant's Finance Manager, who testified at Day 2 of the Hearing, conducted on 18th November 2014, as follows:131

"Mr. Allison: Let's talk about the second cheque. When was the second cheque due to be presented?

Mr. Maygnan: The second cheque was due to be presented on January 31st, 2013.

Mr. Allison: What happened with respect to the second cheque?

Mr. Maygnan: A few days before we had to present the cheque to the bank, Mr. Al-Badie reached out to Mr. White and myself by visiting our booth at a trade show in Dubai and specifically asked that we do not present the cheque to the bank, and that he would arrange for a letter of credit to be issued to Cerner instead.

Mr. Allison: I just want to make sure we are clear. You mentioned Mr. Al-Badie. ls that Mr. Al-Dahari who we refer to him as Respondent No. 2 in this arbitration?

Mr. Maygnan: Yes, it's Mr. Al-Dahari.

Mr. Allison: And so Mr. Al-Dahari personally came to a booth at a trade show that you and Mr. White were representing Cerner?

Mr. Maygnan: Yes.

Mr. Allison: Did Cerner ultimately accept a letter of credit for the amount of 14,825 million Dirham for post-dated cheque number 2?

Mr. Maygnan: Yes, we accepted that letter of credit.

Mr. Allison: And when was that letter of credit provided?

Mr. Maygnan: It was provided in the early days of February 2013 and it was cashed on February 19th of that year. "

10.4.18.
The Tribunal notes that in spite of the Claimant's confirmation that the letter of credit issued in its favour in lieu of the second post-dated cheque was cashed, and that it has received its full amount, the Claimant nevertheless contended that "the failure of the second cheque to clear on January 31, 2013 was a breach of the SPA", which triggered the acceleration clause contained therein.132 As a result thereof, the Claimant submitted that on 6th February and 29th June 2013, it issued invoices to Respondent No. 1 for the amounts equal to the remaining post-dated cheques.133
10.4.19.
Under direct examination by the Claimant's Counsel on Day 2 of the Hearing, Mr. Pascal Maygnan testified as follows:134

"Mr. Allison: And was the failure of the post-dated cheque to clear as of January 31st, 2013 a breach of the terms of the SPA?

Mr. Maygnan: Yes, it was.

Mr. Allison: And so did Cerner consider the acceleration clause of the SPA to have been triggered as a result of the change in payment form?

Mr. Maygnan: Yes, we did.

Mr. Allison: As a result of that acceleration, what did you instruct your finance team to do?

Mr. Maygnan: I instructed my team to issue all the invoices for those post-dated cheques and to submit them to iCapital.

Mr. Allison: And did your team do that?

Mr. Maygnan: Yes, we did that. "

10.4.20.
A plain reading of the relevant Article contained in the SPA, namely Article 4, entitled "Acceleration of Payments", quoted at paragraph 10.4.12 above, clearly shows that acceleration is triggered "in the event any payment owed pursuant to this Agreement is not honoured when presented/or payment...". Based on the evidence adduced by the Claimant, and the written and oral testimony of its Financial Manager, Mr. Pascal Maygnan, the Tribunal rejects the Claimant's contention that an event of default occurred due to the "failure of the second cheque to clear on 31st January 2013". The Tribunal finds that no default occurred in relation to the second post-dated cheque for the simple reason that it was not presented for payment by the Claimant who accepted Respondent No. 2's proposal that Respondent No. 1 issued a letter of credit in its favour instead.
10.4.21.
Accordingly, and contrary to the Claimant's assertions, the Tribunal finds that no breach of the SPA by the Respondents had occurred by 31st January 2013, the due date of the second post-dated cheque, and consequently no right of acceleration or right to claim interest on the Unpaid Overdue Amounts accrued to the Claimant at that point in time. Accordingly, it is clear to the Tribunal that upon receiving the value of the first two post-dated cheques, namely AED9,175,000.00 and AED14,825,000.00, i.e. a total of AED24,000,000.00, the remaining balance of the Unpaid Overdue Amount owed to the Claimant dropped from AED118,722,098.20 to AED94,722,098.20.
10.4.22.
In respect of the third post-dated cheque in the amount of AED34,750,490.37, the Claimant submitted that this cheque was presented for payment on its due date of 25th April 2013 and that it did not clear.135
10.4.23.
The Claimant further submitted that in partial satisfaction of this third post-dated cheque, on 16th June 2013 Respondent No. 1 made a payment of AED 17,000,000.00 to the Claimant and on 26th December 2013, a further payment of AED3,680,000.00 was made to the Claimant i.e. a total of AED20,680,000.00, leaving an unpaid balance of AED14,070,490.37 of the value of the third post-dated cheque.136
10.4.24.
In this regard, the Tribunal refers to the oral testimony of Mr. Pascal Maygnan on Day 2 of the Hearing conducted on 18th November 2014. Under direct examination, Mr. Maygnan testified as follows:137

"Mr. Allison: Let's talk about the third post-dated cheque now.

Mr. Maygnan: Yes.

Mr. Allison: On April 25, 2013, a cheque for 34. 7 million Dirham was supposed to be presented to Union National Bank or on the account of iCapital at Union National Bank. What happened with respect to that cheque?

Mr. Maygnan: So that cheque was presented and bounced. So we immediately started discussion with iCapital, to inform them about that episode and ask them to remedy that immediately.

Mr. Allison: And what did they say?

Mr. Maygnan: So they initially asked for some extra time in order to be able to make the payments. So again we had to talk to our executives in Kansas City, to get their approval to have that discussion with iCapital. And so after the course of a few weeks, we agreed that they could do wire transfers to us, but that we wanted payments before the end of June for the entire amount of 34 million Dirhams.

Mr. Allison: The 34 million Dirham was by far the largest amount of the post-dated cheques. Correct?

Mr. Maygnan: Yes, it's correct.

Mr. Allison: And it was the third post-dated cheque's clearance that triggered some of the waivers that Cerner was willing to offer as part of the settlement if that cheque had cleared. Correct?

Mr. Maygnan: It's correct.

Mr. Allison: And it did not clear?

Mr. Maygnan: It did not clear.

Mr. Allison: Cerner ultimately granted some extensions of time to iCapital to make the payment?

Mr. Maygnan: Yes, we did.

Mr. Allison: Did they ever make full payment of the third post-dated cheque?

Mr. Maygnan: No, they never made full payment.

Mr. Allison: Let's talk about what payments they did make. Have any payments been made against the 34. 7 million Dirham amount for the third post-dated cheque?

Mr. Maygnan: So there were two payments made for that -- towards that amount. The first payment was made in June 2013 for 17 million Dirhams, so about 50 percent of the amount due. And then in December 2013, there was an additional payment of about 3.7 million Dirhams that was made. So a total of about almost 21 million Dirhams has been paid towards that amount of 34. "

10.4.25.
The Claimant asserted that no further payments were made by either of the Respondents since the last payment dated 26th December 2013, and accordingly, the Claimant is claiming the balance of the third post-dated cheque, in addition to the amounts of the four remaining post-dated cheques.138
10.4.26.
As stated at paragraph 10.2.1 above, no evidence was submitted by either of the two Respondents to refute the Claimant's assertions and contentions in respect of the Overdue Amounts. The Tribunal, having considered the evidence before it, accepts that the bouncing of the third post-dated cheque constituted an event of default under the terms of the SPA and as such, triggered an "Acceleration of Payments", in accordance with Article 4 of the SPA and further triggered the revocation of the Claimant's waiver to the "Accrued Interest Amount", pursuant to Article 3.3 of Amendment No. 5 of the CBA.139 It is therefore clear that following the bouncing of the third post-dated cheque dated 25th April 2013, the Claimant became immediately entitled to (1) the remaining balance of the third post-dated cheque of AED14,070,490.37; (2) the full amount of all the remaining four post-dated cheques; and (3) the Accrued Interest Amount of AED28,684, 772.00.140
10.4.27.
However, the Tribunal curiously notes that despite the Claimant's assertions that its right to acceleration of payments was triggered three months earlier with the "bouncing" of the second post-dated cheque, which the Tribunal has rejected, for the reasons set out within in paragraphs 10.4.19 and 10.4.20 above, the Claimant did not avail itself of this right, even after the bouncing of the third post-dated cheque, which was a clear event of default on the part of the Respondents, as stated at paragraph 10.4.26 above, and continued to present the remaining cheques on their respective due dates. When questioned by the Tribunal on whether or not the Claimant availed itself of its right to acceleration of payments, Mr. Maygnan responded as follows:141 "Tribunal: Mr. Maygnan, you testified, in reply to a question by Mr. Allison, that after the third post-dated cheque bounced, you continued to present the cheques on the respective due dates.

Mr. Maygnan: Yes, we did.

Tribunal: As set out in Schedule A of the SPA, which is tab 14, 007. If we go to 14,003, paragraph 4, Acceleration of Payments. Do you believe that you are entitled to submit the remaining 4 cheques all together, since the payments were accelerated? I mean, does SPA allow you to submit?

Mr. Maygnan: I guess we could have done that, but instead, for each cheque, we contacted iCapital, like, 2 or 3 weeks before presenting the cheque, letting them know that we would present the cheque, for instance, number 5. So we were letting them know that we would continue doing that and we presented the cheques at the dates that were agreed on in 2012.

Tribunal: You didn't make use of this acceleration clause?

Mr. Maygnan: We did make use of it insofar as we issued all the invoices at once. So they all they all became due basically. But then we still continued to present the cheques at the dates that had been agreed on in 2012.

Tribunal: Thank you.

Mr. Allison: Just a follow-up on that. You were under no obligation under the contract to continue to present those cheques because the acceleration clause had made all of those payments immediately due. Correct?

Mr. Maygnan: Exactly.

Mr. Allison: But you chose to do so in any event that there may be funds in the bank for any one of those cheques. Correct?

Mr. Maygnan: That's correct. "

10.4.28.
Having considered and examined the evidence adduced by the Claimant under this head of claim, the Tribunal finds that with the bouncing of the third post-dated cheque dated 25th April 2013, the Respondents were in breach of the terms of the SPA. Pursuant to the SPA and Amendment No. 5 of the CBA, this event of breach triggers the Acceleration of Payments and the Claimant's entitlement to revoke their erstwhile waiver of the Accrued Interest Amount. Moreover, the Tribunal is of the opinion that whether the Claimant took advantage of the "Acceleration of Payments" Clause or not, and the adduced evidence shows that it did not, has no bearing on the Tribunal's determination of this Issue.
10.4.29.
The Tribunal finds that upon the signing of the SPA, Respondent No. 1 issued seven post-dated cheques with a total value of AED118,722,098.20. In return for these cheques, which amount to an acknowledgment and confirmation on the part of Respondent No. 1 of the Claimant's entitlement to that amount, and subject to each one of the first three cheques clearing on its respective due date, the Claimant agreed to waive its right to the unpaid accrued overdue interest.
10.4.30.
The value of the first two post-dated cheques was duly received by the Claimant. However, the third post-dated cheque bounced when presented for payment by the Claimant. While the Claimant has received partial payment of this cheque, the Tribunal finds that when the third post-dated cheque failed to clear, there was a breach of the terms of the SPA. This breach entitles the Claimant to the value of the remaining four post-dated cheques.
10.4.31.
A simple calculation of the amounts paid by the Respondents following the signing of the SPA to date shows that the total amounts paid were AED9,175,000.00142 plus AED14,825,000.00143 plus AED20,680,000.00144, i.e. a total of AED44,680,000.00. When this amount is deducted from the agreed Unpaid Overdue Amount of AED118,722,098.20, as per the SPA, the remaining outstanding I unpaid balance is AED74,042,098.20. This is the amount claimed by the Claimant under this head of claim.
10.4.32.
However, as pointed out at paragraph 6.1.15 above, the Claimant in its Statement of Case did accept that it had "initiated a proceeding in the UAE against iCapital specifically with respect of the third post-dated check (sic) provided by iCapital. The proceeding was brought pursuant to specific UAE statute that provides a judicial, quasi-criminal remedy in favor (sic) of recipients of bad post-dated checks (sic). The remaining amount due for this single check is the only amount in issue in any adjudicative proceeding other than this arbitration. On May 27, 2004 (sic) Cerner received a judgment from the trial court against iCapital in the amount of 14.07 million AED." The date of 27th May 2004 should obviously have been 27th May 2014 and the precise amount of the figure in the quoted text above should be taken from Exhibit C-41, as being AED14,070,490.37, which relates only to the third post-dated cheque. In respect of the interest sought by the Claimant on this figure, reference is made to paragraph 10.7.7 below.
10.4.33.
Therefore, the Tribunal determines that the Claimant is entitled to be paid the sum of AED74,042,098.20, less the sum of AED14,070,490.37 as the balance owing from the third post-dated cheque, which is equal to AED59,971,607.83.

10.5 CLAIMED UNPAID ACCRUED OVERDUE INTEREST - AED28,684, 772.00

10.5.1.
Having examined the matters relating to the Claimant's claim for Unpaid Overdue Amounts, and having determined:

i. the Respondents breached the terms of the SPA when they failed to honour the third post-dated cheque in the amount of AED34,750,490.37, which was presented for payment by the Claimant on its due date of 25th April 2013,

ii. as a result of this breach on the part of the Respondents, the Claimant is entitled to the remedy provided for in Article 4 of the SPA, namely, acceleration of payments whereby all remaining post-dated cheques shall be accelerated and shall become immediately due and payable in full,

the Tribunal now turns to determine whether the Claimant is entitled to the Unpaid Accrued Overdue Interest in the amount of AED28,684, 772 it is claiming.

10.5.2.
In this section, the Tribunal will address and determine the issue of Unpaid Accrued Overdue Interest solely, and will not deal with the Additional Interest claimed by the Claimant with respect to Future and Deferred Payments, which is dealt with in section 10.7 below.
10.5.3.
The Tribunal notes that the Claimant had submitted in its Request for Arbitration that the accrued interest on the Unpaid Overdue Amount due to it is AED28,684,772.00, and that in accordance with the terms of the SPA "if iCaptal breaches its payment promise before full payment of the first three payments called for in the Schedule,145 that an agreed amount of Accrued Interest (AED 28,684,772) will become immediately payable in addition to the entire Overdue Amount".146
10.5.4.
The Tribunal further notes that in its Statement of Case, the Claimant submitted that the SPA "provides that if iCapital breaches this payment promise before the first three post-dated checks (sic) fully clear, an agreed amount of Accrued Interest (AED 28,684,772) will become immediately payable in addition to the entire Overdue Amount".147
10.5.5.
In the written witness statement submitted by the Claimant's witness, Mr. Pascal Maygnan, the Claimant's Finance Manager for the Middle East, and in the course of identifying the main features of the SPA, Mr. Maygnan stated that:

"Broadly speaking, the SPA was intended to define and address Overdue Amounts that iCapital explicitly acknowledged were due and owing for recognized and accepted Cerner performance to date... Amendment No. 5 also defined agreed Accrued Interest Amount that was due on the unpaid overdue amount as of the settlement date, but that Cerner was willing to waive if iCapital meet certain performance criteria".148

10.5.6.
Furthermore, under the heading "Accrued Interest on Overdue Amount", Mr. Maygnan stated that as part of the settlement, "Cerner agreed to forever waive such interest amount in the event that the first three post-dated checks provided by iCapital cleared and posted to Cerner's account".149 However, Mr. Maygnan gave evidence that "because the first three post-dated checks did not clear, the Accrued Interest Amount of AED 28,684,772 accelerated under the SPA and is now due and payable. Cerner seeks the full amount of that agreed Accrued Interest as part of this proceeding".150
10.5.7.
Furthermore, at the Hearing conducted on 17th and 18th November 2014, the Claimant made an Opening Statement in which it summarised its position in relation to the Unpaid Accrued Overdue Interest as follows:151

"Mr. Allison: Affirming that Cerner performance and affirming the enforceability of the SPA, iCapital provided to Cerner a series of post-dated cheques to pay that overdue amount and expressly represented that there would be funds in iCapital's hank account on the dates when those cheques were to be presented. iCapital also agreed that there was interest already due on the overdue amount and they expressly defined that interest amount as 28.6 million Dirhams.

Now, Cerner was willing to waive that already accrued interest, but only if iCapital --the first 3 post-dated cheques that iCapital had provided cleared on the dates when they were to be scheduled/or presentation.

In turn, iCapital agreed that if the first 3 post-dated cheques did not clear as scheduled, they would owe that accrued interest amount immediately.

So what happened? The first post-dated cheque was presented as scheduled and it cleared. But the second cheque did not clear. That triggered the acceleration clause under the SPA, which made all of the overdue amount immediately due and also made the agreed interest amount immediately due and owing. Those amounts had been due and owing since February 2013.

iCapital has now made a small additional series of payments to offset the overdue amount, hut more than 74 million Dirhams remain unpaid of the original 118 (million) Dirhams that were agreed as the overdue payment amount. Additionally, the 28.6 million Dirhams in agreed interest are overdue. "

10.5.8.
Furthermore, the Claimant's other witness, Mr. Feras Gadamsi, the Claimant's corporate counsel at the time the SPA and Amendment No. 5 of the CBA were entered into, testified as follows:152

"Mr. Olson: If I could turn your attention, Mr. Gadamsi, to paragraph 4, please. Do you see that paragraph?

Mr. Gadamsi: Yes.

Mr. Olson: What is it entitled?

Mr. Gadamsi: Acceleration of Payments.

Mr. Olson: You mentioned the form of payment being through post-dated cheques.

What does this paragraph provide in the event that any of iCapital's cheques failed to clear?

Mr. Gadamsi: That the payment should he accelerated on all of the cheques.

Mr. Olson: And is there also agreed interest in this provision?

Mr. Gadamsi: Yes.

Mr. Olson: And are you familiar with the amount of interest that iCapital agreed

was owing in the event these cheques didn't clear?

Mr. Gadamsi: Yes.

Mr. Olson: What was that amount?

Mr. Gadamsi: Roughly 28. 7 million Dirhams, plus any further accrued interest".

10.5.9.
Furthermore, Mr. Pascal Maygnan, the Claimant's Finance Manager for the Middle East testified as follows:153

"Mr. Allison: And we will get to that. But with respect to interest, are there two types of interest that are in dispute here?

Mr. Maygnan: There was a portion of interest that was from the past and that we said in the agreement that we would waive if iCap would perform against their promise to pay. And then there is a second amount of interest that we are calculating on wholly currently outstanding invoices.

Mr. Allison: The first bucket I think you identified was the overdue amount. Is that the amount that is identified in the SPA?

Mr. Maygnan: Yes, that's the amount there.

Mr. Allison: And the Tribunal has seen that amount defined on the first page of the SPA. How much is that, roughly?

Mr. Maygnan: The amount is about 118 million Dirhams.

Mr. Allison: And that was an amount that iCapital agreed was due for performance that had already occurred. Correct?

Mr. Maygnan: Exactly.

Mr. Allison: And that agreement was the subject of the negotiation you testified to earlier with Mr. Al-Deeb and Mr. Elhendi. Correct?

Mr. Maygnan: Exactly.

Mr. Allison: Now, how was that overdue amount to be paid?

Mr. Maygnan: So that overdue amount was to he paid with 7 cheques that iCapital gave to us when we executed the SPA.

Mr. Allison: Okay, I'd like to put up the SPA, specifically page 7 of the SPA. You should have a copy of the book there so that you don't need to continue to turn around...

Tribunal: I do have a question on interest. The interest that was waived by Cerner concerns the overdue amount and the deferred amount that was subject to-

Mr. Maygnan: So the interest that we would have waived if iCap had been current on that payment was with regard to the overdue amount.

Tribunal: The 118 million, not the deferred?

Mr. Maygnan: Not the deferred.

Tribunal: Okay, thank you. "

10.5.10.
Having examined the two documents signed by the Claimant and Respondent No. 1 on 29th December 2012, namely the SPA and Amendment No. 5 of the CBA, the Tribunal notes that the relevant Articles in the two documents are Article 4 of the SPA and Article 3.3 of the Amendment. While both Articles were quoted above, the Tribunal deems that their reproduction here is in order.
10.5.11.
Article 4 of the SPA stipulates as follows:

" ... in the event any payment owed pursuant to this Agreement is not honoured when presented for payment in accordance with Schedule A (Payment Schedule) or does not otherwise post in Cerner's account as clearing in accordance herewith, the full amount of that payment and all remaining payments under this Agreement, in addition to the Effective Date Accrued Interest Amount (as such term is defined under the Amendment) shall he accelerated and shall become immediately due and payable in full".

10.5.12.
Article 3.3 of Amendment No. 5 of the CBA provides:

"The Client acknowledges that interest in accordance with Section 7.1(F) (General) of the CBA has accrued for late payments owed to Cerner by the Client in the amount of AED 28,684,772 as of October 31, 2012 (such amount, the "Accrued Interest Amount"). Cerner agrees to waive its right to the Accrued Interest Amount the Effective Date (with no chance of revival) in its entirety upon the fulfilment of all conditions precedent required to effectuate this Amendment and the clearance of post-dated cheque nos. 1, 2, and 3".

10.5.13.
A careful reading of these two contract provisions reveals that a single event of default has two different effects, depending on when such a default takes place. Article 4 of the SPA stipulates that if any payment owed pursuant to the SPA is not honoured when presented for payment, the full amount of that payment and all remaining payments due under the SPA shall be accelerated and shall become immediately due and payable in full. Put differently, pursuant to the SPA, any default in payment, irrespective of when this default takes place, triggers the acceleration of payments. However, in accordance with the provisions of Article 3.3 of Amendment No. 5 of the CBA, the remedy available to the Claimant, i.e. the revocation of its waiver of its entitlement to the Accrued Overdue Interest, is contingent upon this default occurring in connection with the first three payments. Again, put differently, if the first three cheques cleared and any of the remaining four cheques bounced, the Claimant would not be entitled to the Accrued Overdue Interest Amount of