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Final Award

FREQUENTLY USED ABBREVIATIONS

Additional Party [Claimant 2]
[Respondent] [Respondent] (also referred to as the "Respondent")
[Claimant 1 and Claimant 2] [Claimant 1] and [Claimant 2] collectively
[Claimant 1] [Claimant 1] (also referred to as the "Claimant")
[Claimant 2] The succursale of [Claimant 1] (also referred to as the "Additional Party")
Claimant [Claimant 1] (also referred to as "[Claimant 1]")
CMC Case Management Conference
CO Swiss Code of Obligations
Contract The "Terms and Conditions" and the "Purchase Order" collectively
ICC International Chamber of Commerce
ICC Rules Rules of Arbitration of the International Chamber of Commerce in force as from 1 March 2017
ICC Secretariat The Secretariat of the ICC Court
Partial Award Partial Award on Jurisdiction, Joinder, and Breach of the Arbitration Agreement dated 12 November 2018
Parties The Claimant, the Additional Party and the Respondent collectively
PO1 Procedural Order No. 1 dated 20 March 2018
PO4 Procedural Order No. 4 dated 4 December 2018
PO5 Procedural Order No. 5, dated 15 April 2019
Purchase Order The Purchase Order dated 13 October 2016
Rejoinder The Respondent’s Rejoinder dated 17 August 2019
Reply The Claimant’s and the Additional Party’s Reply to Statement of Defence dated 30 April 2019
Respondent [Respondent] (also referred to as "[Respondent]")
SoC The Claimant’s and the Additional Party’s Statement of Claim dated 29 January 2019
SoD The Respondent’s Statement of Defense dated 26 March 2019
Terms and Conditions Order Terms and Conditions for Erection Works dated 13 October 2016
[Company 2] [Company 2]

 

I. INTRODUCTION

1.
This is an arbitration brought under the Rules of Arbitration of the International Chamber of Commerce ("ICC") in force as from 1 March 2017 (the "ICC Rules"). The seat of this arbitration is Geneva, Switzerland.

II. THE PARTIES

A. The Claimant and the Additional Party

2.

The Claimant is [Claimant 1] (hereinafter the "Claimant" or "[Claimant 1]"). The Claimant’s address is:

[Redacted]
Austria

3.

The Additional Party is [Claimant 2], i.e. [Claimant 1]’s succursale in Mauritania (hereinafter the "Additional Party" or "[Claimant 2]"). The Additional Party’s address is:

[Redacted]
Mauritania

4.

[Claimant 1] and [Claimant 2] are collectively referred to as [Claimant 1 and Claimant 2].

5.

[Claimant 1 and Claimant 2] is represented in this arbitration by:

[Person 1]
[Person 2]
[Person 3]
[Person 4]
ACERIS LAW
Rue du Rhône 14
1204 Geneva Switzerland Tel: [Redacted]
Fax: [Redacted]
Email: [Redacted]
[Redacted]
[Redacted]
[Redacted]

B. The Respondent

6.

The Respondent is [Respondent] (hereinafter the "Respondent" or "[Respondent]"). The Respondent’s address is:

[Redacted]
Mauritania
Tel: [Redacted]
E-mail: [Redacted]

7.

The Respondent is represented in this arbitration by:

Cheikh [Person 6]
Tel: [Redacted]
Email: [Redacted]

8.

In addition to Mr. [Person 6], until 14 November 2018, the Respondent was also represented by:

[Person 5]
LANDOLT & KOCH
17 Rue du Mont-Blanc
1201 Geneva
Switzerland
Tel: [Redacted]
Fax: [Redacted]
Email: [Redacted]

9.
The Claimant, the Additional Party, and the Respondent are collectively referred to as the "Parties".

III. THE SOLE ARBITRATOR

10.

The Sole Arbitrator, appointed by the International Court of Arbitration of the ICC (the "ICC Court"), upon the proposal of the Italian National Committee, is:

Dr. Michele Potestà
LÉVY KAUFMANN-KOHLER
Attorneys at law
3-5 rue du Conseil-Général
P.O. Box 552
CH-1211 Geneva 4
Telephone: [Redacted]
Fax: [Redacted]
Email: [Redacted]

IV. THE CONTRACT

11.
This arbitration has been initiated pursuant to Article 24 of the Order Terms and Conditions for Erection Works dated 13 October 2016 (the "Terms and Conditions"), entered into between [Claimant 2] and [Respondent],1 and the Purchase Order dated 13 October 2016 (the "Purchase Order")2 (together referred to as the "Contract").

A. Arbitration Agreement

12.

The arbitration agreement is contained in Article 24 of the Terms and Conditions. Article 24 reads as follows:

"All disputes arising from or in connection with this contract and the purchase order(s) herein under shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said rules. Place of arbitration shall be Genf, Switzerland. The Contract shall be governed and construed by the substantive law of Switzerland, excluding the United Nations Convention on the International Sale of Goods (CISG)."3

B. Language of the arbitration

13.

The arbitration agreement does not specify the language of the arbitration. After hearing the Parties, pursuant to Article 20 of the ICC Rules, on 20 March 2018, the Sole Arbitrator issued Procedural Order No. 1 ("PO1"), in which he determined that English shall be the language of this arbitration, with the following specifications:

"(a) As of today’s date, the Parties’ correspondence and submission shall be solely in English; (b) The Parties may file evidence, including witness statements, and legal authorities in either English or French, without the need to translate them into the other language [...]."4

14.

The Sole Arbitrator notes that in the course of the proceedings, the Respondent has submitted certain pieces of correspondence either in French, or in both French and English, without any objection from [Claimant 1 and Claimant 2]. The Respondent has also submitted its main written submissions in both English and French.5

V. PROCEDURAL HISTORY

15.

The procedural history from the Claimant’s Request for Arbitration of 9 September 2017 until the issuance of the Partial Award on Jurisdiction, Joinder, and Breach of the Arbitration Agreement, dated 12 November 2018 (the "Partial Award") is recounted at section V of the Partial Award, which is incorporated by reference into the present Final Award. The Partial Award decided on the following issues: (i) the joinder of the Additional Party and the Tribunal’s jurisdiction over the Additional Party (see esp. section VIII of the Partial Award), and (ii) whether the Respondent breached the arbitration agreement by commencing court proceedings before Mauritanian courts (see esp. section IX of the Partial Award).

16.
On 13 November 2018, the ICC Secretariat notified the Partial Award to the Parties.
17.
On the same day, the Sole Arbitrator invited the Parties to submit their proposals on the next steps in this arbitration, with a view to establishing the procedural calendar for the subsequent phase of the proceedings.
18.
On 14 November 2018, the Respondent confirmed that it had suspended all civil and/or commercial actions before the Mauritanian courts against [Claimant 1] and/or [Claimant 2] since March 2018; requested an extension to provide its comments on the procedural calendar; advised that it was no longer represented by external counsel; and requested clarifications in respect of the counterclaim.
19.

On 15 November 2018, the Sole Arbitrator granted an extension to both Parties to provide their comments on the procedural calendar until 29 November 2018 and invited Ms. [Person 5] to confirm whether she wished to be removed from the mailing list going forward. Furthermore, in respect of the Respondent’s request of clarification in connection with the counterclaim, the Sole Arbitrator referred the Parties to the Partial Award, in particular paras. 59-64, and to the ICC Secretariat’s letter of 17 September 2018, whereby "pursuant to Article 37(6) of the Rules, Respondent’s claims are considered withdrawn as of 17 September 2018".

20.
Also on 15 November 2018, Ms. [Person 5] advised that she was no longer representing the Respondent. The Sole Arbitrator took note of Ms. [Person 5]’s communication on the same date; informed the Parties that he understood that "the Respondent [was] now represented solely by Mr. Cheikh [Person 6]"; and invited the Parties to advise of any future changes in the list of counsel or party representatives.
21.
Also on 15 November 2018, the Claimant and the Additional Party advised of a change to their counsel list, which was noted by the Sole Arbitrator on 16 November 2018.
22.
On 22 November 2018, the Respondent provided unsolicited comments in respect of an alleged violation of the arbitration agreement by [Claimant 1].
23.
The Sole Arbitrator invited the Claimant and the Additional Party to provide their comments in this respect in their forthcoming observations.
24.
On 26 November 2018, the Respondent requested that the caption of the arbitration be modified to refer to "SUCCURSALE [Claimant 1] en Mauritanie" instead of "[Claimant 2]".
25.

On 28 November 2018, the ICC Secretariat advised that on 8 November 2018, the ICC Court had extended the time limit for rendering the final award until 31 January 2019 (Article 31(2) of the ICC Rules).

26.

On the same date, the Respondent requested further clarifications in respect of the caption of the arbitration. The Sole Arbitrator granted [Claimant 1 and Claimant 2] leave to provide its comments to the latest communications from the Respondent.

27.
On 29 November 2018, in accordance with the Sole Arbitrator’s directions, the Parties made their proposals in respect of the procedural calendar. The Claimant and the Additional Party also provided comments on the matters on which the Sole Arbitrator had invited their observations in response to the Respondent’s latests communications.
28.
On 4 December 2018, the Sole Arbitrator issued Procedural Order No. 4, entitled "Second Phase of the Arbitration: Procedural Calendar and Additional Procedural Rules" ("PO4"), in which he established the procedural calendar for the next phase of this arbitration and provided additional procedural rules to be followed in respect of written submissions and document production.
29.
Also on 4 December 2018, the Sole Arbitrator addressed the matters raised in the Respondent’s communications of 26 and 28 November 2018 in connection with the caption of this case and the denominations of "[Claimant 2]" and "SUCCURSALE [Claimant 1] en Mauritanie". The Sole Arbitrator noted that the matters concerning the denomination of the Additional Party had already been decided in the Partial Award and that there were no reason to reopen these matters. Under the circumstances, he thus denied the Respondent’s request of 26 November 2018 to change the caption of this arbitration or otherwise reopen the question of the Additional Party’s denomination. The Sole Arbitrator also took note of the Respondent’s statement of 22 November 2018 in respect of [Claimant 1]’s alleged breaches of the arbitration agreement and the Respondent’s claims for damages in this respect and reserved the decision on these matters, including on the admissibility on such claims, to the final award.
30.
On 13 December 2018, having consulted the Parties in respect of their availability, the Sole Arbitrator confirmed that the telephone conference mentioned in PO4 would take place on 24 June 2019, at 3 p.m. (Geneva time).
31.

On 25 January 2019, the ICC Secretariat advised that that on 10 January 2019, the ICC Court had extended the time limit for rendering the final award until 30 August 2019 (Article 31(2)).

32.
On 29 January 2019, the Claimant and the Additional Party submitted their Statement of Claim dated 29 January 2019 (the "SoC").
33.
By way of two communications of 30 January 2019, the Respondent requested the Sole Arbitrator to (i) strike from the record the Claimant’s and the Additional Party’s exhibits and legal authorities accompanying the SoC as they were not, in the Respondent’s view, filed in accordance with PO4, and (ii) order the Additional Party to submit a separate brief.
34.
On 30 January 2019, the Claimant and the Additional Party provided their observations to the Respondent’s requests and enclosed the list of exhibits and legal authorities accompanying the SoC.
35.
On 1 February 2019, the Claimant and the Additional Party provided a web link for the download of the exhibits and legal authorities accompanying the SoC.
36.
On 3 February 2019, the Sole Arbitrator denied the Respondent’s request to strike the exhibits accompanying the SoC from the record as the Claimant and the Additional Party had provided such exhibits on 1 February 2019, i.e. within the time limit established for that purpose in PO4. The Sole Arbitrator noted that when filing the SoC, the Claimant and the Additional Party, had, however, omitted to file the exhibit lists provided at § 17 of Procedural Order No. 2, which lists were provided on 30 January 2019, i.e. one day later. The Sole Arbitrator noted that the Respondent had not complained about the late filing of the exhibit lists nor alleged any prejudice as a result of the 1-day delay in filing such lists, and that the Claimant and the Additional Party had stated that they "would gladly allow Respondent to submit its lists of factual exhibits and legal authorities only with its factual exhibits and legal authorities should it wish to do so". Accordingly, the Sole Arbitrator decided that the Respondent may submit its lists of factual exhibits and legal authorities at the time of submitting the relevant exhibits and authorities (i.e. within two days of filing the relevant memorial), if the Respondent so wished. Finally, the Sole Arbitrator noted that the SoC was filed on behalf of both the Claimant and the Additional Party (see SoC, para. 1) and, accordingly, concluded that there was no basis in either the procedural rules or the Terms of Reference to order the Claimant and the Additional Party to file separate submissions. He thus denied the Respondent’s request to order the Additional Party to submit a separate brief.
37.
On 26 March 2019, the Respondent submitted its Statement of Defense, in both English and French, with accompanying annexes (the "SoD").
38.
In accordance with the procedural calendar set out in PO4, on 2 April 2019, each Party served on the other a request for the production of documents. On 8 April 2019, each Party submitted its objections to the other Party’s requests.
39.
On 9 April 2019, by way of two communications, the Respondent made a number of requests and observations.
40.
On 15 April 2019, the Sole Arbitrator issued Procedural Order No. 5, in which he decided the Parties’ document production requests ("PO5").
41.

On the same date, the Sole Arbitrator also addressed the Respondent’s requests and observations of 9 April 2019. First, with regard to the withdrawal of the Respondent’s counterclaims, the Sole Arbitrator recalled (i) the ICC Secretariat’s letter of 17 September 2018, informing that, due to the fact that no payment nor objection from the Respondent had been received, "pursuant to Article 37(6) of the Rules, Respondent’s claims [were] considered withdrawn as of 17 September 2018"; (ii) the Respondent’s communication of 20 September 2019, in which the Respondent considered the ICC decision with respect to the withdrawal of the counterclaims "justified" ("Je pris note de la décision de la CCI qui est bien justifiée"); and (iii) the Sole Arbitrator’s communication of 1 October 2018, confirming that the withdrawal of the counterclaims pursuant to Article 37(6) of the ICC Rules had been duly recorded in the letter from the ICC Secretariat of 17 September 2018, that it had been acknowledged by the Respondent in its communication of 20 September 2018 and by the Claimant and the Additional Party in their letter of 27 September 2018. The Sole Arbitrator further referred to paras. 32-65 of the Partial Award, which recount the full procedural steps regarding the withdrawal of the Respondent’s counterclaims as a result of the Respondent’s failure to pay the balance of the separate advances on costs fixed by the ICC. Accordingly, the Sole Arbitrator considered that the Respondent’s observations of 9 April 2019 were sufficiently addressed by the ICC Secretariat’s and the Sole Arbitrator’s earlier correspondence referred to in the abovementioned paragraphs of the Partial Award. Hence, under the circumstances, there was no need for the Sole Arbitrator to take any action in respect of the Respondent’s observations on the withdrawal of the counterclaims.

42.

In his letter to the Parties of 15 April 2019, the Sole Arbitrator also addressed the Respondent’s observations on the denomination of [Claimant 1] and [Claimant 2] in relation to the contract between [Redacted] and [Claimant 1] and the Respondent’s requests of 9 April 2019 that the Sole Arbitrator take urgent measures in accordance with the ICC Rules and transfer the file to the competent Geneva courts (« [Respondent] demande à Monsieur l’arbitre de prendre les mesures d’urgence conformément au règlement de l’ICC et de transfert le dossier aux tribunaux compétant de Genève [sic] »). The Sole Arbitrator referred to his conclusions in the Partial Award on the denomination and existence of the Additional Party (Partial Award, paras. 91-102). The Sole Arbitrator saw no ground to reopen these findings and considered that there was nothing in the contract entered into between [Redacted] and [Claimant 1] that would suggest that his findings should be reopened. In particular, such contract provided no ground whatsoever to take any urgent measure or transfer the file to the "competent Geneva courts" as the Respondent requested. Finally, the Sole Arbitrator noted that the Respondent’s requests for disclosure of the contract between [Company 1] and [Claimant 1 and Claimant 2] were addressed in Annex 2 of PO5.

43.
On 1 May 2019 at 00:32 (CET), the Claimant and the Additional Party filed their "Reply to Statement of Defence" (the "Reply"), with the accompanying lists of factual and legal exhibits, and a witness statement by Mr. [Person 11].
44.
On the same date, the Respondent requested that the Sole Arbitrator "reject" the Reply as it was submitted on 1 May 2019, rather than on 30 April 2019.
45.
On 2 May 2019, the Claimant and the Additional Party provided a web link for the download of the documentation submitted in connection with the filing of the Reply.
46.
On 3 May 2019, the Respondent provided comments on the witness testimony of Mr. [Person 11], attached to the Reply.
47.
On the same date, the Claimant and the Additional Party provided their comments in connection with the Respondent’s request to "reject" the Reply.
48.
On 6 May 2019, the Sole Arbitrator took note of the Respondent’s comments on the witness testimony of Mr. [Person 11] and, in accordance with the procedural rules, invited the Respondent to incorporate these comments in its forthcoming Rejoinder and submit the documents attached to its communication of 3 May 2019 as exhibits to the Rejoinder. With regard to the Respondent’s request of 1 May 2019 to "reject" the Reply, the Sole Arbitrator noted that the Reply had been received on 1 May 2019 at 00:32 (Geneva time), i.e. 33 minutes after the expiry of the relevant time limit, which was 30 April 2019 at 23:59 Geneva time (see PO 4, para. 16(a)). Under the circumstances, the Sole Arbitrator considered such delay to be minimal and of limited significance. He also noted that the Respondent did not allege that such delay had caused it any harm and considered that in any event such a short delay could not have significantly affected the Respondent’s ability to file its Rejoinder, which was due on 4 June 2019. The Sole Arbitrator accordingly denied the Respondent’s request to "reject" the Reply. This notwithstanding, in his discretion he decided to grant 1 additional day to the Respondent for the filing of its Rejoinder.
49.
On 6 May 2019, the Respondent provided its comments on the Sole Arbitrator’s decision. The Sole Arbitrator took note of those comments on the same date. The Claimant and the Additional Party also provided their observations on the Respondent’s latest comments.
50.
By letters dated 20 May 2019, and transmitted on 21 and 23 May 2019, the Respondent submitted to the ICC Secretariat a "request for a change of arbitrator and a temporary stay of arbitration following the absence of the sole [Respondent] representative in this arbitration for medical reasons".
51.
On 23 May 2019, the ICC Secretariat invited the Sole Arbitrator and the Claimant and the Additional Party to provide their comments in connection with the Respondent’s challenge against the Sole Arbitrator, by 30 May 2019.
52.
On 30 May 2019, the Sole Arbitrator provided his comments to the Respondent’s challenge.
53.
On the same date, the Claimant and the Additional Party also provided their comments to the Respondent’s challenge.
54.
On 12 June 2019, the Claimant and the Additional Party advised that the Claimant and the Additional Party did not agree to a suspension of the proceedings, as the Respondent had not provided any evidence of Mr. [Person 6]’s alleged health issues. The Claimant and the Additional Party also "assume[d] that Respondent ha[d] decided not to submit a Statement of Rejoinder, which [was] of course its choice". The Claimant and the Additional Party also "assumed" that the pre-hearing telephone conference would take place on 24 June 2019 at 3 p.m., as scheduled.
55.
On 13 June 2019, the ICC Secretariat noted that "the suspension or resuming of the arbitral proceedings is a matter that rests in the arbitral tribunal’s (and not the Secretariat’s) hands".
56.
On 18 June 2019, the Sole Arbitrator informed the Parties that, in light of the Respondent’s challenge, he considered it preferable to refrain from carrying out any activities until the challenge was resolved. Under the circumstances, the telephone conference scheduled for 24 June 2019 was canceled and any appropriate directions would be given to the Parties as soon as the challenge was resolved.
57.
On 27 June 2019, the ICC Secretariat informed the Parties and the Sole Arbitrator that at its session of 27 June 2019, the ICC Court had rejected the challenge filed against the Sole Arbitrator.
58.
By letter of 28 June 2019, the Sole Arbitrator, inter alia, declared that the proceeding would resume, in light of the ICC’s decision on the challenge. The Sole Arbitrator invited the Respondent to confirm for the sake of good order that it was requesting a suspension from the Sole Arbitrator and to provide evidence of Mr. [Person 6]’s hospitalization. He also granted a time limit to the Respondent to submit its Rejoinder, which was fixed taking into account (i) the time frame in which the Respondent had stated that Mr. [Person 6] would not be available due to health issues and (ii) the number of days that the Respondent has already had at its disposal for the preparation of its Rejoinder from receipt of the Reply until 27 May 2019 (i.e. the first day of the non-availability of Mr. [Person 6]).
59.
On 1 July 2019, the Respondent addressed a communication, with attachments, to the ICC Secretariat.
60.

On 2 July 2019, the ICC Secretariat advised that "[a]s indicated in our correspondence of 17 September 2018, Respondent’s claims are considered withdrawn as of 17 September 2018 under Article 37(6), due to the lack of payment of the separate advance on costs fixed for the counterclaims" and that "it is for the Sole Arbitrator and not for the Court or the Secretariat to manage the proceedings. Any decision on the procedural calendar rests in the arbitral tribunal’s hands".

61.
On 3 July 2019, the Respondent made a number of requests to the Sole Arbitrator.
62.
On 4 July 2019, the ICC Secretariat advised that it understood "that no further question [from the Respondent] [was] left for the ICC Secretariat to reply".
63.
On 4 July 2019, the Respondent made further requests to the Sole Arbitrator.
64.
The Claimant and the Additional Party provided their comments on 4 July 2019.
65.
On 4 July 2019, the Sole Arbitrator addressed the Respondent’s requests of 3 and 4 July 2019. He took note of the evidence provided by the Respondent in connection with Mr. [Person 6]’s medical intervention and noted that the Claimant was "satisfied that Respondent did have a medical intervention". The Sole Arbitrator granted the Respondent’s request for suspension of the proceedings until 10 July 2019. Furthermore, he modified the procedural calendar as requested by the Respondent and agreed by the Claimant and the Additional Party, and confirmed that the subsequent steps following the filing of the Respondent’s Rejoinder would be discussed subsequently at a case management telephone conference (the "CMC").
66.

By the same letter, the Sole Arbitrator also addressed the Respondent’s request to "exclude" or "withdraw" the Additional Party from the proceedings. The Sole Arbitrator noted that this matter had already been ruled upon in the Partial Award and confirmed thereafter in his correspondence. The Sole Arbitrator saw no reason to re-open the issue and recalled that the Additional Party was joined to this arbitration at the Respondent’s request on the ground that the Additional Party was the named party to the contract ("Le Contrat liant [Respondent] et [Claimant 2], [Respondent] requiert que [Claimant 2] soit jointe à la procédure d'arbitrage [...]", Respondent’s Answer, Request for Joinder, and Counterclaim, 30 November 2017, para. 11, emphasis added). The Sole Arbitrator further recalled that in his Partial Award, he had upheld jurisdiction over the Additional Party also in consideration of the fact "that [Claimant 2] is a signatory to the Contract" (Partial Award, para. 88). This being so, the withdrawal of the Respondent’s counterclaim had no bearing on the Additional Party’s status as party to this dispute. The Respondent’s request was thus denied.

67.
On 17 August 2019, the Respondent submitted its Rejoinder dated 17 August 2019 (in English and French), together with accompanying exhibits (the "Rejoinder"). The Respondent requested to postpone the conference call scheduled for 2 September 2019 and advised of its availability.
68.
On 27 August 2019, after having consulted the Parties on their availability, the Sole Arbitrator confirmed that the CMC call would be held on Friday 6 September 2019 at 3 p.m. (Geneva time). The Sole Arbitrator also circulated an agenda for the conference call and informed the Parties that, amongst other things, they would discuss whether an oral evidentiary hearing after the conference call would be necessary or whether the Sole Arbitrator may decide the case solely on the basis of the documents submitted by the Parties.
69.

On 29 August 2019, the ICC Secretariat advised that the ICC Court had extended the time limit for rendering the final award until 31 October 2019 (Article 31(2)).

70.
On 4 September 2019, the Sole Arbitrator acknowledged receipt of two e-emails from the Respondent of 3 September 2019; the email from the Claimant and the Additional Party of 3 September 2019; and two emails from the Respondent of 4 September 2019. He recalled the scope and agenda of the upcoming conference call, which concerned the subsequent procedural steps in the arbitration, and noted that the Respondent had raised two additional issues. The Sole Arbitrator advised that the Respondent would have an opportunity to explain to the Sole Arbitrator at the conference call of 6 September 2019 how the two issues raised by the Respondent related to the subsequent procedural steps of the arbitration. The Claimant and the Additional Party would have an opportunity to provide their views, if they so wished. If, thereafter, there were still any outstanding requests from the Parties in relation to the two points raised by the Respondent, the Sole Arbitrator would issue any appropriate directions.
71.
On 6 September 2019 at 3 p.m. (Geneva time), the CMC took place by telephone, as scheduled. It was attended by the Sole Arbitrator, Mr. [Person 1] and Ms. [Person 2] on behalf of the Claimant and the Additional Party, and Mr. [Person 6] on behalf of the Respondent. The Sole Arbitrator and the Parties discussed all the points on the agenda circulated by the Sole Arbitrator on 27 August 2019, as supplemented in his e-mail of 4 September 2019.
72.

With reference to Article 25(6) of the ICC Rules, the Parties agreed at the conference call that there was no need to hold an evidentiary hearing in this case. The Parties further agreed that the most appropriate way forward was for the Sole Arbitrator to ask specific questions to the Parties, if any, to which the Parties would have an opportunity to reply in writing in one simultaneous round of written submissions. The Parties also agreed to submit cost statements after the submission of their answers to the Sole Arbitrator’s questions. Having thus heard the Parties, the Sole Arbitrator established the next procedural steps, which were restated in a letter to the Parties sent by the Sole Arbitrator later on the same day.

73.
At the CMC, the Parties and the Sole Arbitrator also discussed the two questions raised by the Respondent in its communications of 3 and 4 September 2019.
74.
With regard to the first question concerning the "admissibility" (recevabilité) of certain exhibits filed by the Claimant and the Additional Party (namely C-90 and C-91, pp. 3-4), after hearing the Parties, the Sole Arbitrator decided that it would further examine this issue and, if necessary, ask a specific question in that respect to the Parties in its forthcoming questions to the Parties.
75.
The Sole Arbitrator also heard the Parties on the second question raised by the Respondent concerning the "organigram du chantier". The Sole Arbitrator deferred its decision to the time when he would send the Parties his questions (letter from the Sole Arbitrator to the Parties, 6 September 2019, p. 2).
76.
On 28 September 2019, the Sole Arbitrator followed up on the CMC and (i) asked a number of questions to the Parties, entirely without prejudice to the Sole Arbitrator’s decision on the merits; (ii) gave a time limit to the Parties for the filing of their final written submissions containing their answers to the Sole Arbitrator’s questions, as well as a time limit for the filing of their cost submissions; and (iii) denied the Respondent’s request that the Sole Arbitrator order the Claimant and/or the Additional Party to produce the organigramme du chantier (i.e., the second issue raised by the Respondent in its communications of 3 and 4 September 2019), on the ground that it was belated.
77.
On 11 October 2019, the Claimant and the Additional Party requested leave to submit two additional exhibits (Exh. C-98 and Exh. C-99), which were made available for download through a weblink.
78.
The day after, the Sole Arbitrator invited the Respondent’s comments on the Claimant’s and the Additional Party’s request.
79.
On 16 October 2019, the Respondent objected to the introduction of the additional exhibits into the record and provided comments on the content of these documents.
80.
On 22 October 2019, following a further communication from the Respondent on the same date, the Sole Arbitrator decided to grant the Claimant and the Additional Party leave to submit the two documents into the record. He noted, inter alia, that the Respondent had already had an opportunity to review these documents and provide its preliminary comments in relation thereto in its letter of 16 October 2019, and authorized the Respondent to file, together with its forthcoming answers to the Sole Arbitrator’s questions due on 28 October 2019, any additional documents rebutting Exhs. C-98 and C-99, if it so wished, and to provide in the same context any additional comments in relation to such documents that it considered appropriate.
81.
On the same date, the Respondent "took note" of the Sole Arbitrator’s decision.
82.
On 28 October 2019, the Respondent filed its submission containing its answers to the Sole Arbitrator’s questions of 28 September 2019 (the "Respondent’s Answers").
83.

On 29 October 2019 at 00:28 (CET), the Claimant and the Additional Party filed their submission containing their answers to the Sole Arbitrator’s questions of 28 September 2019 ("[Claimant 1 and Claimant 2]’s Answers") and requested leave to submit an additional exhibit (Exh. C-100).

84.

On the same date, the Respondent requested that [Claimant 1 and Claimant 2]’s Answers be struck from the record on the ground that they had been filed after the expiration of the relevant time limit.

85.
Later on the same date, the Respondent submitted additional observations, in particular on the addional document that the Claimant and the Additional Party sought to introduce into the record.
86.

Also on 29 October 2019, the ICC Secretariat advised that on 3 October 2019, the ICC Court had extended the time limit for rendering the final award until 31 December 2019 (Article 31(2)).

87.

Also on 29 October 2019, the Claimant and the Additional Party provided comments on the Respondent’s requests and noted that "[w]hile Claimant does not consider Exhibit C-100 to be essential to its case, as [Claimant 1 and Claimant 2] would clearly pay all amounts that were invoiced and owed, it will of course allow the Sole Arbitrator to make its decision on this document, having heard Respondent’s comments".

88.
On the 29 October 2019, the Respondent made a further request.
89.

On 30 October 2019, the Sole Arbitrator addressed the two outstanding requests from the Parties. He (i) denied the Respondent’s request to strike [Claimant 1 and Claimant 2]’s Answers from the record, noting that a 29-minute delay was minimal and the Respondent had not alleged that such delay had caused it any harm; and (ii) denied the Claimant and the Additional Party leave to submit Exh. C-100 into the record, as the Claimant and the Additional Party had not provided sufficient reasons that would justify the introduction of a further document at such late stage of the proceedings.

90.
On 11 November 2019, the Claimant and the Additional Party filed their costs submission with supporting documentation.
91.

On 12 November 2019, the Respondent provided comments on [Claimant 1 and Claimant 2]’s costs submission.

92.
On 13 November 2019, the Sole Arbitrator acknowledged receipt of the Claimant’s and the Additional Party’s Submission on Costs and of the Respondent’s observations of 12 November 2019.
93.

On 23 December 2019, the ICC Secretariat advised that on 4 December 2019 the ICC Court had extended the time limit for rendering the final award until 31 January 2019 (Article 31(2)).

94.

On 30 December 2019, the Sole Arbitrator declared the proceedings closed and informed the Parties that he had submitted the Final Award in draft form to the ICC Court for approval pursuant to Article 34 of the ICC Rules.

95.
On 9 January 2020, the ICC Court extended the time limit for rendering the final award until 28 February 2020.

VI. THE PARTIES’ PRAYERS FOR RELIEF

96.

In this phase of the arbitration, the Claimant and the Additional Party have sought the following relief:

"56 . As a result, Claimant and the Additional Party respectfully request the Sole Arbitrator to issue a final award:

i. Ordering Respondent to pay Claimant and the Additional Party EUR 427,139.00 for additional costs caused by Respondent’s failure to fulfil its contractual obligations;

ii. Ordering Respondent to pay Claimant and the Additional Party EUR 28,256.00 in liquidated damages;

iii. Ordering Respondent to pay Claimant and the Additional Party compensation for harm caused by its breach of the arbitration agreement in an amount of EUR 52,572.15;

iv. Ordering payment by Respondent of interest at a rate of 5% as of the date these amounts were due, and for such period as the Sole Arbitrator considers just and appropriate; and

v. Ordering Respondent to pay all arbitration costs, including Claimant’s and the Additional Party’s legal representative’s costs and expenses."6

97.

In this phase of the arbitration, the Respondent has sought the following relief (set out in both English and French):

"82. [Respondent] has unquestionably shown by the foregoing that the statements made by [Claimant 1] are unfounded and are wrong. So the plaintiff's claims had to be rejected. As a result, [Respondent] asserts the Claim below:

i. condemn [Claimant 1] and [Claimant 2] to respect the agreement dated 28/02/2017. By paying [Respondent] the remainders of the amount of the remaining contract following the agreement of 28/02/2017.

ii. condemn [Claimant 1] and [Claimant 2] to respect the amount of the expenses of returns approved in the agreement of 28/02/2017 is 90 000 Euros by rejecting the abusive amount which is 2 times the amount of the contract [Respondent].

iii. order [Claimant 1] and [Claimant 2] to pay interest at the rate of 5% per annum from the date on which these amounts were due. Or in amount of 16 500 Euros

iv. condemn [Claimant 1] and [Claimant 2] to reimburse legal and procedural costs to [Respondent] and the fees of Cheikh [Person 6]. Amount of EUR 70,000

v. condemn [Claimant 1] and [Claimant 2] damages still to be assessed for the injury suffered by [Respondent] from its suppliers, partners and bank interest. An amount of 65 000 EUR."

(Rejoinder (English version), para. 82)

"81 . [Respondent] a montré d’une façon incontestable par ce qui précède que les propos [Claimant 1] sont sans fondement est sont de la mauvaise fois. Donc les demandes de demandeur devaient être rejetées. En conséquence, [Respondent] fait valoir la Demande ci-dessous:

i. condamner [Claimant 1] et [Claimant 2] de respecter l’accord en date du 28/02/2017. En payant [Respondent] les reliquats du montant du contrat restant suivant l’accord du 28/02/2017.

ii. condamner [Claimant 1] et [Claimant 2] de respecter le montant des frais de retours approuve dans l’accord du 28/02/2017 soit 90 000 Euros en rejetant le montant abusif qui est 2 fois le montant du contrat [Respondent].

iii. condamner [Claimant 1] et [Claimant 2] de paye les intérêts au taux de 5% par un à compter de la date à laquelle ces montants étaient dus. Soit en montant de 16 500Euros

iv. condamner [Claimant 1] et [Claimant 2] à rembourser les frais de procédure et d’avocats à [Respondent] et les honoraires de Cheikh [Person 6]. Soit un Montant 70 000 EUR

v. condamner [Claimant 1] et [Claimant 2] à des dommages-intérêts encore à évaluer pour le préjudice subi par [Respondent] auprès de ses fournisseurs, ses partenaires et les intérêts bancaires. Soit un montant de 65 000 EUR."

(Rejoinder (French version), para. 81)

VII. THE POSITIONS OF THE PARTIES

A. The Claimant’s and the Additional Party’s Position

98.

This section summarizes [Claimant 1 and Claimant 2]’s position on the facts and its claims.

1. The facts

99.

[Claimant 1 and Claimant 2] argues that on 13 October 2016 it concluded a contract with the Respondent for the erection of a cement grinding plant in Mauritania, with [Claimant 1 and Claimant 2] acting as principal and the Respondent acting as the contractor.7 It explains that the client who ordered the erection of the plant was the Mauritanian branch of the African-based holding company [Company 1].8

100.

[Claimant 1 and Claimant 2] submits that the deadlines for the delivery of the Respondent’s works were set out in the Purchase Order, with a completion date by 30 November 2016,9 and that none of the agreed dates were met by the Respondent.10

101.
The Claimant and the Additional Party also contend that in accordance with Article 3 of the Terms and Conditions, the Respondent undertook to make available "necessary staff" with "sufficient skills" on site.11 The Terms and Conditions also stipulated that the number of staff provided by the Respondent was subject to variation on short notice when necessary and requested by the principal.12 [Respondent] was also obliged to "bring at its cost and expense any tools, equipment and transportation, if applicable, needed for carrying out its works".13 Finally, the Claimant and the Additional Party submit that in accordance with Article 7 of the Terms and Conditions, the Respondent assumed responsibility for adherence to contractual deadlines, the quality of works and the due execution of works provided by its personnel, as well as its subcontractors and representatives.14
102.

[Claimant 1 and Claimant 2] alleges that problems between the Parties started during [Respondent]’s mobilization.15 On 16 November 2016, in light of the delays, [Claimant 1 and Claimant 2] proposed that the company [Company 2] ("[Company 2]") reinforce [Respondent]’s manpower in order to finish the works in a timely manner and that [Claimant 1 and Claimant 2]’s additional costs for this substitution would be back-charged to [Respondent].16 [Claimant 1 and Claimant 2] submits that the Respondent agreed to this arrangement the day after.17

103.

The Claimant and the Additional Party maintain that thereafter [Claimant 1 and Claimant 2] repeatedly expressed its concerns with [Respondent]’s performance on site and its failure to bring manpower, tools and materials.18 They also contend that on 12 January 2017, [Claimant 1 and Claimant 2] requested [Respondent] to provide additional staff on site19 and that it reminded [Respondent] that the Parties had agreed to use the services of [Company 2] to remedy the delays.20

104.

On 18 January 2017, according to [Claimant 1 and Claimant 2], the Parties held a meeting, in which (i) [Claimant 1 and Claimant 2] reminded [Respondent] that there were several back charge costs that it had incurred due to [Respondent]’s failures and indicated that it would prepare cost summaries in particular with respect to [Company 2]’s manpower and equipment resources used for [Respondent]’s scope of works; and (ii) [Respondent] promised that it would provide permanent resources on site starting on 18 January 2017 until the agreed works were finished and that the pipes and compressed air system would be finished by 24 January 2017.21 According to [Claimant 1 and Claimant 2], the parties also revised target dates for the completion of the works.22

105.

According to [Claimant 1 and Claimant 2], on 13 February 2017, [Respondent] denied the agreement to mobilize [Company 2]’s personnel alleging that the Contract did not contain an explicit provision permitting [Claimant 1 and Claimant 2] to substitute [Respondent] by [Company 2] and back charge the costs of such substitution to [Respondent].23 [Claimant 1 and Claimant 2] replied that [Respondent]’s assertions did not reflect reality.24 On 20 February 2017, [Claimant 1 and Claimant 2] informed [Respondent] that [Respondent] did not start the requested firefighting system welding works in the storage area and, thus, [Claimant 1 and Claimant 2] was obliged to use [Company 2]’s services.25

106.

[Claimant 1 and Claimant 2] argues that at a meeting held on 28 February 2017, the Parties agreed in principle to an amendment to the Contract whereby the Respondent would be paid additional amounts for the steel structure works and would in turn bear reduced back charges.26 [Claimant 1 and Claimant 2] argues that the agreement was subject to two cumulative conditions-precedent: (i) [Respondent] would immediately mobilize the requested resources and tools to finish the steel structure at the grinding building, and (ii) a written contract amendment in this respect would be signed between the Parties (in line with Article 1 of the Terms and Conditions).27

107.

However, so [Claimant 1 and Claimant 2] argues, [Respondent] did not abide by its commitment to mobilize the requested resources or provide tools to finish the steel structure at the grinding building.28 In addition, no written contract amendment was ever executed. Hence, so [Claimant 1 and Claimant 2] argues, the agreement concluded at the meeting "never reached the contractual level", became obsolete and without any contractual effect between the Parties, and is merely relevant for [Respondent]’s acknowledgment that, as a matter of quantum, it owed back charges of at least EUR 90,000.29

108.

[Claimant 1 and Claimant 2] further contends that on 1 March 2017, [Claimant 1 and Claimant 2] sought to use additional [Company 2] resources, to which [Respondent] objected.30 Moreover, on 5 March 2017, [Respondent] requested partial provisional acceptance of a number of works31 and, two days later, requested [Claimant 1 and Claimant 2] to pay a number of invoices.32 [Claimant 1 and Claimant 2] argues that on 10 March 2017, [Claimant 1 and Claimant 2] paid invoice No. [Redacted]. However, because [Respondent] insisted on receiving payment of all three invoices at once, [Claimant 1 and Claimant 2] cancelled the wire transfer.33

109.

According to [Claimant 1 and Claimant 2], following a request from [Respondent] for a penalty for late payment of the invoices, [Claimant 1 and Claimant 2] replied confirming the payment of 80% progress of works from the end of December 2016 (Invoice No. [Redacted]) but contesting the penalty.34 It also noted that invoices Nos. [Redacted] and [Redacted] "did not reflect the actual situation of Respondent’s scope of works" and indicated that it had been obliged to resort to [Company 2]’s services on multiple occasions and, thus, had incurred additional expenses.35

110.

[Claimant 1 and Claimant 2] argues that on 28 March 2017, [Claimant 1 and Claimant 2] paid invoice No. [Redacted], in respect of which [Respondent] contested the applicable exchange rate.36

111.

Thereafter, in reply to an e-mail from [Respondent] of 31 March 2017,37 [Claimant 1 and Claimant 2] submits that on 7 April 2017, it indicated that [Claimant 1 and Claimant 2] had acknowledged the additional works for steel structure amounting to EUR 153,766.00 and the additional costs for modification works amounting to EUR 17,000.00, as well as the agreement made on 28 February 2017 between the Parties. However, [Respondent] had not complied with its commitments resulting from such an agreement, namely "necessary resources and tools were not brought to site, deadlines were not kept, etc". Therefore, "[Claimant 1 and Claimant 2] had to apply again corrective action to finalize work in time as [Respondent] was not able to fulfill its commitments".38

112.

On 5 May 2017, according to [Claimant 1 and Claimant 2], [Claimant 1 and Claimant 2] made two alternative proposals to [Respondent] and [Respondent] opted for the second, i.e., as stated in [Claimant 1 and Claimant 2]’s e-mail, "[Respondent] choses as basis the purchase order insists to be paid for the raised additions for the structure and others in this case [Claimant 1 and Claimant 2] will accordingly consider all costs borne by [Claimant 1 and Claimant 2] to support [Respondent] to carry out the works [sic]".39

113.

On 16 May 2017, following further correspondence between the Parties, [Claimant 1 and Claimant 2] made a settlement proposal to [Respondent].40 In response, however, so [Claimant 1 and Claimant 2] argues, [Respondent] initiated civil and criminal proceedings before the Mauritanian courts,41 including against one of [Claimant 1 and Claimant 2]’s employees, Mr. [Person 11].42

2. [Claimant 1 and Claimant 2]’s entitlement to back charges

114.

[Claimant 1 and Claimant 2] submits that pursuant to Article 7 of the Terms and Conditions, the Claimant and the Additional Party are entitled to charge the Respondent when it fails to adhere to contractual deadlines or does not execute its work and [Claimant 1 and Claimant 2] is forced to correct the failure itself or incurs costs doing so.43 In addition, in accordance with Article 19 of the Terms and Conditions, the Claimant and the Additional Party are entitled to back charge additional costs to the Respondent which result from its failure to execute the contractual obligations.44 [Claimant 1 and Claimant 2] disagrees with the Respondent that the signature of [Company 2], [Claimant 2] and [Respondent] was required for the [Company 2] costs to be back charged to [Respondent]. It underscores that the legal basis for the Claimant’s and the Additional Party’s entitlement to claim the back charges resulting from [Respondent]’s failures to execute its contractual obligations is Article 19 of the Terms and Conditions.45

115.

[Claimant 1 and Claimant 2] claims that it incurred two sets of additional costs due to [Respondent]’s failure to perform its work. First it is entitled to the additional costs resulting from payment of the [Company 2] services, which comprise [Company 2]’s manpower and equipment, in the amount of EUR 362,580.46 [Claimant 1 and Claimant 2] alleges that had to resort to the services of [Company 2] on multiple occasions in order to remedy the situation on site that was caused by the Respondent’s uncooperative behavior and its unwillingness to honor its contractual obligations. It points in particular to Exh. C-90, a spreadsheet prepared by Mr. [Person 11] using "the time that the work was being performed" and which shows in detail to what extent and which individual [Company 2] workers were needed to replace [Respondent]’s workers in order for the works to advance.47

116.

Second, [Claimant 1 and Claimant 2] claims costs directly born by [Claimant 1 and Claimant 2] for the purchase of equipment, gas, oil, argon and other consumables, as well as renting a crane and machines, in the amount to EUR 64,559.48 It argues that [Respondent]’s objections to these additional expenses are unsupported and misleading and, thus, must be dismissed.

117.

Hence, under Articles 7 and 19 of the Terms and Conditions, [Claimant 1 and Claimant 2] contends that it is entitled to be paid the total amount of EUR 427,139 by the Respondent.49

118.

Alternatively, [Claimant 1 and Claimant 2] contends that the Respondent must reimburse the foregoing back charges in accordance with Swiss statutory law.50 [Claimant 1 and Claimant 2] invokes Articles 366(2), 102(2) and 108(1) of the Swiss Code of Obligations ("CO"). In particular, according to [Claimant 1 and Claimant 2], Article 366(2) CO allows the customer to back charge additional costs resulting from a substitution to the defaulting contractor. It adds that the nature of the obligation for the latter to reimburse additional costs incurred by the customer must be distinguished from any obligation relating to the payment of damages resulting from the contractual liability.51

3. [Claimant 1 and Claimant 2]’s entitlement to liquidated damages

119.

[Claimant 1 and Claimant 2] submits that it is also entitled to liquidated damages under Article 18 of the Terms and Conditions. It contends that because the Respondent missed all of the original and revised deadlines by well over 10 weeks, pursuant to Article 18 of the Terms and Conditions it must pay EUR 28,256.00 in liquidated damages, corresponding to 10% of the order total.52

120.

[Claimant 1 and Claimant 2] argues that none of [Respondent]’s comments blaming [Claimant 1 and Claimant 2] for delays are valid or supported by the evidence.53

4. [Claimant 1 and Claimant 2]’s entitlement to damages resulting from local proceedings

121.

Finally, [Claimant 1 and Claimant 2] claims damages for the Respondent’s breach of the arbitration agreement pursuant to the Sole Arbitrator’s findings in the Partial Award.54 It contends that the Respondent has caused harm to [Claimant 1 and Claimant 2] and that [Company 1] stopped all payment of outstanding invoices due to the Mauritanian proceedings brought against [Claimant 1 and Claimant 2].55

122.

[Claimant 1 and Claimant 2] claims damages for the Respondent’s breach of the arbitration agreement in the amount of EUR 52,572.15.56

5. Interest

123.

Finally, [Claimant 1 and Claimant 2] maintains that [Respondent] must pay 5% interest on all amounts it owes as of the date these amounts became due.57

B. The Respondent’s Position

124.

This section summarizes the Respondent’s position on the issues in dispute and on [Claimant 1 and Claimant 2]’s claims.

1. The Contract

125.

The Respondent first argues that the Contract has been concluded by [Respondent] and [Claimant 2] (and not [Claimant 1]).58 It notes that the turnkey construction contract for the cement plant was between [Company 1] and [Claimant 1], and [Claimant 1] was the "principal contractor".59 The Respondent argues that because "[Claimant 1] has subcontracted the assembly and civil engineering works to its [Claimant 1] branch in MAURITANIA",60 the contract between [Respondent] and [Claimant 2] is a sub-subcontract.61 It also submits that the "outsourcing of [Claimant 1] [to] [Claimant 2] [...] has not been approved by the Client", i.e. [Company 1].62 In this respect, it also maintains that "the request for arbitration formulated by [Claimant 1] was to be directed against [Claimant 2] and not against [Respondent], because the subcontractor of [Claimant 1] is indeed [Claimant 2]".63

126.
The Respondent argues that the contract is null and void because of the absence of legal personality of [Claimant 2] and because it was signed by the executive directors of [Claimant 1] who did not have the power to sign on behalf of [Claimant 2].64
127.
The Respondent also maintains that the Claimant and the Additional Party were not open to finding an amicable settlement to the Parties’ disagreement.65

2. The back charges

128.

The Respondent alleges that the signatures of [Company 2], [Claimant 1 and Claimant 2] and [Respondent] were required for the so-called [Company 2] costs to be back charged to the Respondent.66

129.

Furthermore, it argues that the back charges have already been the subject of an agreement between the Parties, which agreement provided for the "retention of the amounts of the [back charges] on the invoices of [Respondent]".67 The Respondent refers to the agreement reached between the Parties on 28 February 2017,68 which "yielded 90 000 Euros of amount as return costs for [Claimant 2] ([Company 2], Consumables and Crane) 200Tonne [sic]",69 which agreement - so it contends - was accepted by [Claimant 1 and Claimant 2] on 2 March 2017.70

130.

Furthermore, the Respondent submits that the excel sheet produced by [Claimant 1 and Claimant 2] as Exh. C-90 "proves nothing of all, prepared solely by Mr. [Person 11] without approval of [Company 2] and nor approval of [Respondent] pursuant to Exhibit C-41" [sic].71 Indeed, "the Exibit C-41 defines the procedure to follow for the [Company 2] resources pointing used in the grinding plant, whatever the monting works or for the work of manufacturing the missing parts [sic]".72

131.

With particular regard to the "invoice of the crane 200t of [Redacted]",73 the Respondent contends that in accordance with Exh. C-3, [Claimant 1 and Claimant 2] mobilized a 200-ton crane for a period of 7 days from 2 November 2016. It explains that

"The invoice of Exhibit C91-P03 and P04 to be supplied by [Claimant 1] covers the period 02/11/2016 to 09/11/2016 NEXT [Redacted] / [Claimant 1 and Claimant 2] CONTRACT OF 20/09/2016 Based on deliveries 3253. The minutes date of 18/01/2017 ascend that the invoice of Exhibit C91-P03 and P04 has already made an agreement between [Respondent] and [Claimant 2] on the amount withheld on the invoices of [Respondent]. The amount claimed by [Claimant 2] comes within the agreement between [Claimant 2] and [Respondent]. [sic]"74

132.
Furthermore, the Respondent contends that the settlement agreement for EUR 90’000 covers also the 200-ton crane.75
133.
Regarding the remaining expenses claimed in the SoC, the Respondent contests them in their entirety.

3. The alleged delays and the quality of the works

134.

The Respondent alleges that, although some delays during the performance of the Contract were attributable to it, many of them were attributable to [Claimant 1 and Claimant 2]. It maintains that:

"There were indeed delays in relation to the contractual deadlines but the person responsible for this delay is not, or at least not totally, [Respondent]. Most delays have been caused by [Claimant 2] because they are due to lack of parts to mount on site or / and manufacturing defects."76

135.

While the Respondent agrees that it missed certain deadlines, it declines responsibility and blames [Claimant 1 and Claimant 2] for the delays:

"Les fournitures des [Claimant 1 and Claimant 2] ont fait défaut et ils ont demandé à [Respondent] de maintenir le personnel en attendant de livrer (les pièces manquantes, la ré fabrication confies a [Company 2] qui a pris beaucoup du temps! et les mise a niveaux du Filtre L&M faite au titre de travaux supplémentaires contractuels par [Respondent] etc.) voir Annexes R8, R15, R34, R48, R49-1, R49-1, R50, R51, R55, R56, R57 et R64
[...]
Les fournitures des [Claimant 1 and Claimant 2] ont fait défaut et ils ont demandé à [Respondent] de maintenir le personnel et les moyens de manutention en attendent de livrer (les pièces manquantes, la ré fabrication confier a [Company 2] qui a pris beaucoup du temps! et les mise a niveaux du Filtre L&M etc.) voir Annexes R8, R15, R34, R48, R49-1, R49-1, R50, R51, R55, R56,R57,R58, R59, R60, R61, R62, R63 et R64."77

136.

[Respondent] underscores that the "contractual deadlines are conditioned by the availability of parts, equipment and accessories".78 It submits that on several occasions, [Claimant 1 and Claimant 2] acknowledged delays in deliveries which blocked the assembly works subject to the contract.79 Moreover, it contends that "[t]he commissioning was completed in February 2017 and the installation was taken over by the customer on 13/02/2017 while the deadline set by [Company 1] and [Claimant 1] is 19 APRIL 2017. So we seems that the delays he talks about [Claimant 1] has no relevance [sic]".80

137.

Finally, [Respondent] submits that it performed the contractual and additional works and that the latter were accepted by [Claimant 1 and Claimant 2]:

"[Respondent] has all the documents signed by both parties that demonstrate that the work is well completed and received
[...]
During the delivery of the book, which took place in February and March 2017, [Claimant 2] never questioned the quality of the installations executed by [Respondent]. Indeed, [Claimant 1 and Claimant 2] to accept the assembly works executed by [Respondent] and signed the said receptions of works. The meeting report signed by [Claimant 2] confirms the works have been executed in accordance with the plans and names in force
[…]
In conclusion, [Respondent] correctly performed the contractual and additional work, as shown by the acceptances of the various parts of the installation.
[...]
[Respondent] performed all the work relating to this Contract
[...]"81

138.

[Claimant 1 and Claimant 2] also submits that there was never any question during the performance of the contract that the work carried out by [Respondent] was defective.82 In particular, it contends that:

"in February 2017, the work was completed and the commissioning was carried out with minor reservations preventing the pronunciation of the reception of the works on all that the operation of the installation was in charge of the Master of ([Company 1]) under the supervision of [Claimant 1]. for the reserves of the subcontractors of [Claimant 2] ([Company 2], C2E, GAB, KIMA, [Respondent].etc).
In March 2017, the marketing of the first cement bags produced by the cement plant. This proves that the reservations were lifted because neither the control office nor the client refused the delivery of the book. [sic]"83

139.
In sum, [Respondent] argues that "it is clear that the allegations made by [Claimant 1] concerning the defective performance of the work provided by [Respondent] are unfounded and are misleading and must therefore be rejected".84

4. Breaches of the arbitration agreement

140.

The Respondent argues that, after the Partial Award, it has withdrawn all civil and commercial proceedings against [Claimant 1 and Claimant 2]. It submits that neither [Claimant 1] nor [Claimant 2] are parties to any criminal proceedings initiated by the Respondent.85

141.

Furthermore, the Respondent objects to the amount of damages claimed by [Claimant 1 and Claimant 2] in connection with the breach of the arbitration as "abusive" and submits that "justice in Mauritania all inclusive does not exceed 4000 Euro because the only fee is only the lawyer [sic]".86

VIII. SOLE ARBITRATOR’S ANALYSIS

142.
In this section, the Sole Arbitrator provides his analysis on the merits of the dispute (infra at VIII.B). Before doing so, he deals with certain preliminary matters, i.e. (1) the scope of this Award; (2) the applicable laws; and (3) the Respondent’s counterclaims (infra at VIII.A).

A. Preliminary matters

1. Scope of this Award

143.
This Award is a Final Award. It deals with all of the issues and the Parties’ claims (save for those that have already been ruled upon the Partial Award; see supra para. 15), including the Parties’ most recent requests for relief, decides nothing more than those issues and claims, and puts an end to this arbitration.

2. The applicable laws

a. Law Governing the Arbitration Proceedings

144.

The place of arbitration within the meaning of Article 18 of the ICC Rules being Geneva ("Genf"), Switzerland (see arbitration agreement quoted supra at para. 12), this arbitration is subject to Chapter 12 of the Swiss Private International Law Act.

b. Law Governing the Merits of the Dispute

145.

Article 24 of the Terms and Conditions, quoted in full supra at para. 12, provides as follows:

"[...] The contract shall be governed and construed by the substantive law of Switzerland, excluding the United Nations Convention on the International Sale of Goods (CISG)."

146.
Thus, in accordance with Article 24 of the Terms and Conditions, the Sole Arbitrator will apply Swiss law as the law that governs the substance of the dispute.

c. Jura Novit Arbiter

147.
When applying the law governing the substance of the dispute, the Sole Arbitrator is not bound by the arguments and sources invoked by the Parties. Under the maxim jura novit curia - or, better, jura novit arbiter - the Sole Arbitrator is required to apply the law of its own motion, provided it seeks the Parties’ views if it intends to base its decision on a legal theory that was not addressed and that the Parties could not reasonably anticipate.87

3. Counterclaims

148.

In the course of these proceedings, the Respondent made a number of counterclaims.88 In accordance with Article 37(6) of the ICC Rules,89 these counterclaims were considered withdrawn as of 17 September 2018 as a result of the Respondent’s failure to pay the separate advances on costs fixed by the ICC Court. The procedural history in this connection is recounted in extenso at paras. 32-63 of the Partial Award, to which this Award refers.

149.

Suffice it here to recall that:

  1. On 17 September 2018, the ICC Secretariat informed that, as the time limit indicated in its letter of 29 August 2018 had expired and no payment nor objection from the Respondent had been received, "pursuant to Article 37(6) of the Rules, Respondent’s claims [were] considered withdrawn as of 17 September 2018".
  2. Further to a communication of 20 September 2018 addressed to the ICC Secretariat, on the same date the Respondent addressed a communication to the Sole Arbitrator, in which it took note of the ICC decision with respect to the withdrawal of the counterclaims, which it considered "justified" ("Je pris note de la décision de la CCI qui est bien justifiée ").
  3. On 1 October 2018, the Sole Arbitrator confirmed that the withdrawal of the counterclaims pursuant to Article 37(6) of the ICC Rules had been duly recorded in the letter from the ICC Secretariat of 17 September 2018, that it had been acknowledged by the Respondent in its communication of 20 September 2018 and by the Claimant and the Additional Party in their letter of 27 September 2018.
150.

In the present phase of the arbitration, the Respondent has made a number of additional comments in respect of the withdrawal of the counterclaims. In a communication of 30 January 2019, for instance, the Respondent stated that "la demande reconventionnel d’[Respondent] est rejeté car [Respondent] n'a pas pu payé l’approvisionnement a la CCI ce qui est toute a fais cohérent avec la procédure de la CCI [sic]" (emphasis added). Furthermore, in its Rejoinder, the Respondent observed that :

"The Contract binds [Respondent] and [Claimant 2]. [Respondent] requires that [Claimant 2] be included in the arbitration proceedings initiated by [Claimant 1] as intervening party and [Claimant 2] as counterclaim alongside [Claimant 1]. Knowing that the counterclaim was withdrawn by the court in September 2018[.]"90

151.

Hence, there appears to be no dispute between the Parties that the Respondent’s counterclaims are considered as withdrawn as a result of its failure to pay the separate advances on costs. For the avoidance of doubt, the Sole Arbitrator confirms that all of the Respondent’s counterclaims are considered as withdrawn from these proceedings, it being understood that the Respondent shall not be prevented, on the ground of such withdrawal, from reintroducing the same claims at a later date in another proceeding (ICC Rules, Article 37(6)).

B. The merits

1. Introductory remarks

152.
This dispute concerns the execution of a contract entered into between [Claimant 2], the succursale of [Claimant 1], and [Respondent]. The contract comprises the Terms and Conditions, entered into between [Claimant 2] and [Respondent],91 and the Purchase Order92 (together referred to as the "Contract", see supra para. 11).
153.

Before delving into the analysis of the claims, it is necessary to briefly address the Respondent’s allegations in respect of the denomination of the two [Claimant 1 and Claimant 2] entities and the validity of the Contract.

154.

In this phase of the arbitration, the Respondent has sought to reargue certain matters concerning the denominations of the [Claimant 1 and Claimant 2] entities and the effect thereof on the Contract. These arguments have already been dealt with in the Partial Award (see esp. section VIII.C) and there is no need to re-open those findings. Suffice it to note in this context that the distinctions made by the Respondent between the purported "sub-contractor" and the purported "sub-subcontractor" are irrelevant for the issues in dispute. In particular, the Respondent’s observation made in the Rejoinder that "the request for arbitration formulated by [Claimant 1] was to be directed against [Claimant 2] and not against [Respondent], because the subcontractor of [Claimant 1] is indeed [Claimant 2]"93 is difficult to follow. It is to be recalled that the Contract was entered into between [Respondent] and [Claimant 2], that [Claimant 2] has been joined to these proceedings at the Respondent’s request, and that the Respondent has stated that it has no objection to [Claimant 1]’s standing (qualité pour agir) in this arbitration.94 This being so, the aforementioned assertion from the Respondent that [Claimant 1] should have directed its request for arbitration against its own succursale is without merit.

155.
Furthermore, the cursory statements made by the Respondent in the Rejoinder that the contract is "null" on the purported ground that [Claimant 2] lacks legal personality and the signatories of the Contract lacked the required powers (Rejoinder, paras. 16-17) are unsubstantiated and unsupported by any evidence. They are thus dismissed.
156.

The same is true for the Respondent’s allegation of "fraud" against [Claimant 1 and Claimant 2].95 In this connection, the Respondent has requested that the Sole Arbitrator "transfer the arbitration file to the criminal court of Geneva because the comptenace is seized [sic]", pursuant to Article 146 of the Swiss criminal code.96 This request is wholly unsubstantiated and entirely unsupported. In the circumstances and based on the evidence in the record, the Sole Arbitrator sees no ground whatsoever to grant this request, which is accordingly dismissed.

157.

The Sole Arbitrator now moves to the claims made by [Claimant 1 and Claimant 2] against [Respondent], which are threefold. First, the Claimant and the Additional Party claim compensation for additional expenses which they submit they have incurred on behalf of the Respondent (infra at VIII.B.2). Second, they request payment of liquidated damages for the Respondent’s "inexcusable delays" (infra at VIII.B.3). Third, they claim damages resulting from the Respondent’s violation of the arbitration agreement (infra at VIII.B.4). These claims are addressed in turn in the following sections.

2. Claim for additional expenses

158.

[Claimant 1 and Claimant 2] claims that it is entitled to recover certain amounts from [Respondent] in respect of a number of additional expenses which, so it contends, it had to bear as a result of the Respondent’s inability and delays in performing the Contract. In particular, [Claimant 1 and Claimant 2] alleges that it is entitled to the payment of the so-called (i) back charges for [Company 2] services and (ii) additional expenses in respect of certain machinery, equipment, and so on.

159.
This claim needs to be placed in the context of the history of the Parties’ relations in the course of the performance of the Contract.
160.

From the evidence in the record, it is clear that problems with the timely performance of the works arose almost immediately after the conclusion of the Contract.97 In light of those difficulties, on 16 November 2016, Mr. [Person 11], [Claimant 1 and Claimant 2]’s site manager, proposed to the Respondent to either reduce the scope of the Respondent’s works or to reinforce the Respondent’s manpower by resorting to the services of [Company 2], a Senegalese company that was already working on site on a different part of the construction project. Mr. [Person 11] wrote to [Respondent] in the following terms:

"Comme nous avons discuter avant, le chantier est loin des objectifs que nous avons fixer ensemble, pour récupérer et éviter plus de retard nous étions obliger soit de réduire le scope que vous avez our d'intégrer de main d'oeuvre qualifier capable de finir le travail dans le plus breve délais .

j'ai compris que vous preferer de maintenir le scope tellqu'il est et avoir un renfort de resource de [Company 2] qui sera [Redacted] a [Respondent], ce que nous avons commencer a faire et vous aller etre informer par jour d'effectif et materials effecter a vous zones de travail [sic]."98

161.

The day after, the Respondent accepted that [Claimant 1 and Claimant 2] could resort to the [Company 2] services in the following terms:

"comme discuter au telephone, je vous confirme qu'[Respondent] accepte que les honoraires des12 Personnes de [Company 2] mobiliser sur le Batiments broyeur seront retenu de nos factures suivant le pointage approuves par Mr [Person 12] (preparateurs). Aussi les 2 chefs d'equipes deja mobiliser. [sic]"99

162.

On the same day, [Claimant 1 and Claimant 2] provided, upon the Respondent’s request, the "[Company 2] rate to be awere of the cost will be backcharged to you as we agreed [sic]".100

163.

From these exchanges, it is thus clear that there was an agreement in principle that [Claimant 1 and Claimant 2] could resort to the [Company 2] services, whose costs would then be back charged to [Respondent].

164.

In the following weeks, the relationship between the Parties escalated into reciprocal claims. On the one hand, [Claimant 1 and Claimant 2] expressed increasing dissatisfaction with the delays in the works; on the other hand, [Respondent] complained about delays in the payment of the invoices, while declining responsibility for the delays in the performance of the works.101

165.

On 14 January 2017, [Respondent] confirmed that it had agreed to pay to [Claimant 1 and Claimant 2] the back charges for the [Company 2] services in the amount of EUR 90’000, indicating that part of that amount had already been withheld from one of the invoices it had issued to [Claimant 1 and Claimant 2], while the rest would be deducted subsequently.102 In the words of the Respondent:

"JE VOUS RAPPEL QU’[Respondent] A ACCEPTER DE CEDE LE MONTANT A LOUER AU TRAVAUX SUPPLEMENTAIRE, SOIT 90 000 EUROS HT DONT 33KEUROS DÉJÀ FACTURE SOUS LA FACTURE N° [Redacted] EN DATE DU 04/12/2016 ET LE RESTE SERA FACTURE PLUS TARD, AU PAYEMENT DE LA PRESTATION QUE [Company 2] A ASSURE POUR LE COMPTE D’[Respondent]. [sic]"103

166.

The Parties then met on 18 January 2017 to seek to resolve the outstanding divergences. Among other issues, the "minutes of meeting" record the following in respect of the "backcharge costs from [Claimant 1 and Claimant 2] to [Respondent]":

"[Claimant 1 and Claimant 2] informed that there are several backcharge costs occurred since [Respondent] started their work on site. [Claimant 1 and Claimant 2] will prepare therefore the following cost summaries to be final discussed with [Respondent]:

• Overview about all used manpower and equipment resources from [Company 2] in [Respondent] scope of works areas (that still checked and discussed with [Claimant 1 and Claimant 2]).

• Overview about the 200ton crane costs from 05/11/ 2016 (already accepted from [Respondent] 2 400 000 MRO)

• Report of the provided consumable costs from [Claimant 1 and Claimant 2] to [Respondent] (fuel, welding electrodes, etc.) [Respondent] request all this materials.

These cost summaries should be prepared until the 30/ 01/2017 for final discussion. [sic]"104

167.

Thus, at the meeting, it was agreed that [Claimant 1 and Claimant 2] would prepare cost summaries of all the additional expenses it had incurred on behalf of [Respondent]. The minutes record that [Respondent] already agreed to the amount of some of the back charges (so for the 200-ton crane costs up to a certain amount).

168.

Thereafter, the Parties exchanged further correspondence in which they made claims against each other.105 In particular, regarding the [Company 2] back charges, the Parties were in disagreement on a number of costs that [Claimant 1 and Claimant 2] was requesting from [Respondent], to which [Respondent] objected. For instance, in the correspondence exchanged between 11 and 13 February 2017, [Claimant 1 and Claimant 2] insisted on the fact that [Respondent] was to reimburse certain costs,106 while it agreed that certain other additional expenses should not be back charged to [Respondent].107

169.

On 28 February 2017, the Parties held a meeting in which they sought to resolve the outstanding issues. This meeting is evidenced by the correspondence exchanged between [Claimant 1 and Claimant 2] and [Respondent] thereafter.108 The Respondent summarized the meeting as follows:

"suite a notre réunion de ce matin je vous confirme ce qui suit:
1. [Respondent] accepte de cede 90 000 Euros de leur plus value des travaux des structures pour la bonne collaboration avec [Claimant 1 and Claimant 2].
2. [Respondent] va mobilisé les personnels necessaire pour terminer les travaux de montage des structures après la validation de cette proposition et la date pour la quelle nos factures échues seront payes [Respondent] informe [Claimant 1 and Claimant 2] qu'il na jamais demander a [Company 2] d'intervenir dans le bâtiments broyeur plus fort raisons de lui payer un montant qui dépasse le monant de notre contrat des structures et mécaniques. [sic]"109

170.

In the same email, the Respondent also enclosed the "overdue invoices".110

171.

On the same day, [Claimant 1 and Claimant 2] replied that it would "check internal this proposal and back to you soon according to our contract [sic]".111 On 2 March 2017, [Claimant 1 and Claimant 2] followed up and provided the following answer to [Respondent]:

"I discussed with my colleagues on site concerning your meeting you had on Tuesday, the 28/02/2017.
Your proposal is well noted and I already informed Mr. [Person 9] and Mr. [Person 10].
Acc. your proposal we agree to the following points:
- [Respondent] announced extra costs for the steel structure works in the height of € 153.766,00,-- net (without VAT)
- [Respondent] accept the back charge costs from [Claimant 1 and Claimant 2] in height of € 90.000,00,-- net (without VAT)
Accordingly we will prepare an contract ammendment with the following points:
1 .) [Respondent] contractual scope of works will be extended by:
a. Finalisation of the complete steel structure erection works of the grinding building (without Cladding and roof works)
2 .) The contract price will be increased to:
a. + Steel structure erection price € 153.766,00,--
b. - [Claimant 1 and Claimant 2] back charge costs € 90.000,00,--
c. Finally € 63.766,00,--
New contract value => € 282.555,00,-- + € 63.766,00,-- = € 3 46.321,00,-
3 .) This amount will be the final price and nothing else will be announced from both sides as extra costs, additional costs, etc.
4 .) [Respondent] will mobilize the from [Claimant 1 and Claimant 2] requested resources and tools to finish the steel structure at the grinding building immediately
a. Main structure (main columns, main beams, diagonal bracings, main structure where equipment is located) of building with correct bolt torque tightening latest at the 05/03/2017
b. Secondary structure of building with correct bolt torque tightening latest at the 19/03/2017
5 .) [Claimant 1 and Claimant 2] will not hire an additional company to finalize the steel structure works at the grinding building, if [Respondent] fullfill the committments above.
6 .) [Respondent] will prepare proper non-conformity reports (additional work reports) in accordance with [Claimant 1 and Claimant 2] concerning all adaptation works at the steel structure caused by the manufacturer, to enable [Claimant 1 and Claimant 2] to backcharge to the steel structure supplier
7 .) To enable [Claimant 1 and Claimant 2] to pay all coming payments including the VAT, [Respondent] has to bring immediately the certificate from the government about the allowance to collect the VAT from his clients/costumers.
The next payment related to invoice „Facture N° [Redacted]" will be released within this week, once we receive the promissed [Company 1] income. Once we solved our general payment income problem with [Company 1] we will be able also starting the payments for the steel structure erection works. [sic]".112

172.

To the extent relevant here, it is clear to the Sole Arbitrator that in the 28 February 2017 meeting, the Parties agreed as to the total amount of additional expenses that [Respondent] was to reimburse to [Claimant 1 and Claimant 2]. In particular, [Claimant 1 and Claimant 2]’s communication of 2 March 2017 confirms that such agreed amount totaled EUR 90’000, i.e. the same sum that had already been acknowledged by the Respondent on 14 January 2017 (see supra para. 165, discussing Exh. R-57) and on 28 February 2017 (see supra para. 169, discussing Exh. R-71).

173.

The agreement reached between the Parties on 28 February 2017 put an end to the various claims against each other. In particular, it settled the divergence as to whether [Claimant 1 and Claimant 2] could claim the [Company 2] back charges only in respect of the specific items mentioned in Exh. C-41 ([Respondent]’s position) or also for other additional works whose performance [Claimant 1 and Claimant 2] had considered necessary to remedy the alleged shortcomings in the Respondent’s performance ([Claimant 1 and Claimant 2]’s position).

174.

Furthermore, it is clear that the Parties’ agreement covered all of the back charges claimed by [Claimant 1 and Claimant 2], i.e. both the [Company 2] costs and the additional expenses for machinery, equipment, and so on. Indeed, there is no indication in the agreement or in other contemporaneous documentary evidence on record that the scope of the EUR 90’000 amount was limited to any specific category of charges or excluded any such category. To the contrary, all of the additional costs incurred by [Claimant 1 and Claimant 2] had been on the table for discussion until that date (see, e.g., the meeting minutes of 18 January 2017), and it is obvious that the Parties intended to cover them in the comprehensive agreement they reached on 28 February 2017. This is unequivocally confirmed by [Claimant 1 and Claimant 2]’s statement in its email of 2 March 2017 that "[t]his amount [i.e. comprising both the higher price for the works and the EUR 90’000 back charges] will be the final price and nothing else will be announced from both sides as extra costs, additional costs, etc.".113

175.

Although [Claimant 1 and Claimant 2] does not deny that the agreement reached on 28 February 2017 is "relevant" "as a matter of quantum" for [Respondent]’s acknowledgment of the debt due, [Claimant 1 and Claimant 2] argues that such agreement "never reached the contractual level", became obsolete and is without any contractual effect between the Parties, because it was subject to two conditions precedents that have not been fulfilled. The Sole Arbitrator is unpersuaded that this is the case.

176.

First, the Sole Arbitrator does not consider that [Claimant 1 and Claimant 2]’s communication of 2 March 2017 contains any conditions precedent for the effectiveness of the agreement reached between the Parties. By contrast, such communication first records the Parties’ unconditional acknowledgment of the sums they owed to each other ("we agree to the following points"). The communication then sets out [Claimant 1 and Claimant 2]’s offer to prepare a written amendment to the Contract, as well as enumerates additional obligations for the Parties, including [Respondent]’s obligation to "mobilize the from [Claimant 1 and Claimant 2] requested resources and tools to finish the steel structure at the grinding building immediately". There is no language in the Parties’ correspondence to suggest that the agreement reached between the Parties as to the quantum they owed to each other was in any manner conditioned upon the fulfilment of the other points mentioned in the Agreement. Rather, the agreement lists the various items independently one from the other, without instituting any relationship of conditionality between those various items. Indeed, what matters is the acknowledgement of the sums owed by the Parties to each other or, as put by [Claimant 1 and Claimant 2] in respect of the agreement, it is "relevant that, as a matter of quantum, [Respondent] clearly acknowledged that it owed back charges of at least EUR 90’000".114

177.
Second, the fact that the agreement reached on 28 February 2017 was not subsequently formalized in a signed contractual amendment is in any event irrelevant as the written exchanges clearly evidence that an agreement, in the sense of the meeting of the minds, had been reached between the Parties and Swiss law does not require any particular formality to that effect.
178.

Third, with regard to [Respondent]’s mobilization, even if arguendo such mobilization could be seen as a condition precedent to the effectiveness of the agreement (quod non), [Claimant 1 and Claimant 2] has not established that after the agreement [Respondent] failed to mobilize in accordance with what is set out in [Claimant 1 and Claimant 2]’s correspondence of 2 March 2017.

179.

This being so, the Sole Arbitrator concludes that in the 28 February 2017 meeting, the Parties agreed that [Respondent] owed [Claimant 1 and Claimant 2] the amount of EUR 90’000 for the back charges, which sum covered all of the additional expenses that [Claimant 1 and Claimant 2] had to bear on behalf of [Respondent].

180.

The question is thus whether [Respondent] has paid the amount due to [Claimant 1 and Claimant 2]. In this respect, the Sole Arbitrator considers that [Respondent] has sufficiently established that it paid this amount to [Claimant 1 and Claimant 2] through set-off from payments it was to receive from [Claimant 1 and Claimant 2]. Indeed, [Respondent]’s invoices submitted in the arbitration as Exhs. R-75, R-76, R-77 show that the amounts of EUR 54’000, 18’000, 18’000 were deducted from the payments charged to [Claimant 1 and Claimant 2] as "Remboursement frais de retours". On 10 March 2017, [Claimant 1 and Claimant 2] took the view that it would only pay some (but not all of the invoices) due to cash flow problems ("this is all what we are able to pay for the moment, because we don’t have more on our Accounts")115. Beyond this explanation, the record does not reveal any objection from [Claimant 1 and Claimant 2] that [Respondent] had incorrectly computed the EUR 90’000 in the deductions it effected from its invoices.

181.

For the foregoing reasons, the Sole Arbitrator concludes that the amount relating to the additional expenses that were due from [Respondent] to [Claimant 1 and Claimant 2] was agreed between the Parties to be equal to EUR 90’000 and such amount has already been paid by [Respondent] to [Claimant 1 and Claimant 2] through set-off in the three above-mentioned invoices.

182.

Furthermore, the Sole Arbitrator considers that the Claimant and the Additional Party have not established that additional expenses were borne by [Claimant 1 and Claimant 2] on behalf of [Respondent] that would not be captured by the agreement reached on 28 February 2017. The evidence proffered by [Claimant 1 and Claimant 2] in this respect, in particular Exhs. C-90, C-98 or C-99, in no way change this conclusion.116 In fact, both the excel sheet produced by one of [Claimant 1 and Claimant 2]’s employees for the purposes of this arbitration (Exh. C-90) and the [Company 2] invoices produced as Exh. C-98 (and related payments proffered as Exh. C-99) relate for most parts to periods preceding the agreement of 28 February 2017-2 March 2017, and [Claimant 1 and Claimant 2] has not sufficiently shown that the alleged expenses summarized in the excel sheets were not captured by the settlement agreement. [Claimant 1 and Claimant 2] has also not sufficiently established which of the [Company 2] invoices post-dating the agreement of 28 February/2 March 2017 were related to the [Respondent] scope of the works, rather than the separate work [Company 2] was performing for [Claimant 1 and Claimant 2]. In the circumstance, any claim of entitlement to back charges beyond EUR 90’000 (which has already been paid by [Respondent]) has not been proven.

183.

In sum, [Claimant 1 and Claimant 2]’s claim for payment of additional expenses (both related to [Company 2] services and costs or otherwise related to equipment and machinery) is dismissed.

3. Liquidated damages for delays

184.

[Claimant 1 and Claimant 2] claims liquidated damages alleging that the Respondent is responsible for "inexcusable delays" in the works.

185.

It is undisputed between the Parties117 that the Purchase Order provided for deadlines for the completion of the works as follows:

"Delivery time:
Grinding building: 18/11/16
Mill shell lining: 11/11/16
Cement silos: 19/10/16
Conveyor bridge: 19/10/16
Pipes, duct and chutes: 18/11 /16
Compressed air and fire fighting system: 30/11/16"118

186.
Hence, the project should have been completed by 30 November 2019.
187.

It is also common ground that under Article 18 of the Terms and Conditions, [Claimant 1 and Claimant 2] (the "Principal" or "PR" in the Contract) was entitled to claim liquidated damages in the amount of 1% for each week of delay, up to a maximum of 10% of the "order total".119 Article 18 of the Terms and Conditions reads as follows:

"In the event that the delivery dates of the works and/or the as built documentation as agreed between the parties are not adhered to by the CO [Contractor], the PR [Principal] is entitled to claim liquidated damages as follows:
1 % for each begun week of delay, up to a maximum of 10% of the order total. No compensation shall be awarded for the first 5 working days (1 week) of delay."

188.

It is clear from the record that delays in the finalization of the works occurred. The Respondent does not deny that such delays occurred, although it contests that it is entirely liable for them. In the course of the performance of the Contract, for instance, the Respondent acknowledged as follows:

"effectivement il y a des retards par rapport au contrat entre [Claimant 1 and Claimant 2] et [Respondent]. En effet ces retards sont dus a :
- Broyeur terminé a 98% il reste 120 boulonnes a torques sur 1500 boulonnes ([Respondent] est responsable de ce retard et [Claimant 1 and Claimant 2] a le droit de retenu des pénalités des retard sur les factures d4[Responent]). [sic]"120

189.

Subsequently, the Respondent even "invited" [Claimant 1 and Claimant 2] to apply the liquidation damages for certain delays:

"L’application des pénalités des retards sur l’exécution des travaux est de 1% par semaine est la demande de réceptions provisoires a été demandé le 27/12/2016 et le paiement de l’avance de démarrage a eu lieu le 03/11/2016 c à d une semaine de retard (voir pièce joint). En effet [Respondent] vous invite a appliquer les pénalités des retards suivant le contrat [...]".121

190.

In the arbitration, the Respondent has also conceded that delays in the performance of the works occurred, although it only took responsibility for some of them. For instance, in the SoD it acknowledged that it was "not totally" to blame for the delays:

"There were indeed delays in relation to the contractual deadlines but the person responsible for this delay is not, or at least not totally, [Respondent]".122

191.

In the same submission, the Respondent has provided a table, in which it has summarized its position on the delays that occurred on the project. This table addresses 5 main items (with a number of sub-items), namely: (1) "Ateliers de broyeur"; (2) "Blindage broyeur" (3) "Silos ciments" (4) "Long Convoyeurs"; and (5) "Erection of pipes, ducts and chutes (PDC) as well as compressed air system and fire fighting system".123 In respect of items (2), (3), and (4), [Respondent] accepts that it failed to respect the deadline ("[Respondent] n’a pas respecté le délai"). The following shows the relevant excerpt from the table produced by the Respondent (SoD, para. 48):

[Redacted image]

192.

The Respondent has then further particularized the table (SoD, para. 53), indicating in red the liquidated damages under Article 18 of the Terms and Conditions. The following shows the relevant excerpt from the table produced by the Respondent where the amounts in red are indicated in the column entitled "Pénalité des retards 10%":

[Redacted image]

193.

Hence, the Respondent acknowledges that it missed the deadlines for mill shell lining ("Blindage broyeur"), cement silos ("Silos ciments") and conveyor bridge ("Long Convoyeurs") and that the corresponding amount of the liquidated damages is EUR 5,700.00. For its part, [Claimant 1 and Claimant 2] has noted that "[Respondent] acknowledges" each of these delays and has not contested the amounts indicated by [Respondent] for the liquidated damages.124

194.
In sum, based on the evidence on the record and the Parties’ respective positions in this arbitration, it can be concluded that [Respondent] must pay EUR 5,700.00 in liquidated damages for delays in completing the above-mentioned works.
195.

In this respect, the fact that [Claimant 1 and Claimant 2] eventually accepted the works does not mean that these delays did not occur or that [Claimant 1 and Claimant 2] is not entitled to liquidated damages. [Claimant 1 and Claimant 2] is not making claims regarding the quality of the works or alleging defects, which are separate matters from liquidated damages for delays. Hence, the Respondent’s arguments regarding [Claimant 1 and Claimant 2]’s ultimate acceptance of the works does not affect the Sole Arbitrator’s conclusion regarding the delays and the quantification of the liquidated damages.

196.

In addition to the afore-mentioned delays, [Claimant 1 and Claimant 2] claims that the Respondent is responsible for further delays in respect of the remaining parts of the works. The Sole Arbitrator has reviewed the Parties’ allegations. He notes that the Respondent contends that these delays were due to [Claimant 1 and Claimant 2]’s own failures and in particular to [Claimant 1 and Claimant 2]’s delays in providing the required equipment and materials. [Claimant 1 and Claimant 2], for its part, denies that it bears any responsibility for those delays.

197.

In respect of these additional alleged delays, the Sole Arbitrator reaches the conclusion that [Claimant 1 and Claimant 2] has not sufficiently established that these delays were attributable to [Respondent] as opposed to its own failures.

198.

For instance, the Respondent has referred to Exh. R-66 corresponding to the weekly report No. 55 dated 8 January 2017, prepared by [Claimant 1 and Claimant 2], in which it is stated that:

"Elevators Buckets erection : preparation work completed .
60L of CARTER SH 320 was required to start and complete its erection with samson feeder we received 20L of it today 8th of January we will start tomorrwo 9 of January 2017 with grinding building bucket elevators and samson feeder chiane grease and oil filling while we receive the remaining quantities of 40L of the same or equivalent it CARTER SH 320 is not available in week 2 to complete packing plant bucket elvators erection .
Seperators : erection with alignment completed except air slide its erection is ongoind and almost completd alos lubrication pipes missing pipes bending machine is not available in the local market we oredered from DAKAR will arrive within week 2. [sic]"125

199.

This weekly report shows that as of the date of the report (8 January 2017), certain equipment, accessories and parts were late for delivery by [Claimant 2]. The Sole Arbitrator is unpersuaded by [Claimant 1 and Claimant 2]’s explanations that "if 40L of CARTER SH 320 had been missing on 8 January 2017, they were delivered the very next day, on 9 January 2019",126 which confirm in fact that as of that date the relevant equipment was missing. The same is true for [Claimant 1 and Claimant 2]’s further statement that "the purportedly missing lubrication pipes [...] were delivered in the week starting from 9 January 2017 as well",127 which also indirectly confirms that those pipes had been missing until the date of the report.

200.

Similar observations can be made in respect of the meeting minutes of 18 January 2017, signed by both Parties, and which the Respondent invokes in its defense. These minutes record [Respondent]’s request "that [Claimant 1 and Claimant 2] need to put a press ion for the fabrication to respect that [i.e., the revised contractual dates for the works]",128 which indicates that certain machineries were still to be delivered by [Claimant 1 and Claimant 2] at the relevant time.

201.

The record in fact reveals that on numerous other occasions [Respondent] drew [Claimant 1 and Claimant 2]’s attention to the fact that missing equipment to be supplied by [Claimant 1 and Claimant 2] were hindering the timely completion of the works.129 On 22 November 2016, for instance, [Respondent] wrote to [Claimant 1 and Claimant 2] that "la fabrication des pieces manquante comme les coudes etc. ne sont pas dans notre scope [sic]".130 Further, two days later, [Respondent] complained about missing or incomplete deliveries from [Claimant 1 and Claimant 2] that, in [Respondent]’s view, were causing the delays in the works (" [Respondent] ne peut pas être tenir responsable des manque de vos fournitures comme les gains, les tuyauteries d’air comprimé, le dépoussiérages, le réseau anti-incendie, le caillebotis, les tôles striées et la boulonneries [...] Les fournitures sont incomplets (structures, gains, etc.) [sic]".131 On 11 February 2017, [Respondent] repeated that "[Respondent] n'est pas responsable du Fabrication des pièces manquantes comme les gains, les jetés etc.", to which [Claimant 1 and Claimant 2] agreed as follows: "You are right and we agree for this point".132

202.

Hence, while there are indications in the record that delays in the works occurred, the picture that emerges as to which party is to bear the responsibility for those delays is not entirely conclusive. There is in fact evidence to the effect that [Claimant 1 and Claimant 2] at the time did not dispute, and even agreed, that it contributed to the delays by failing to timely deliver equipment which pertained to its own scope of work.133 This being so, the Sole Arbitrator considers that [Claimant 1 and Claimant 2] has not sufficiently discharged its burden to prove the delays and the attribution of those delays to [Respondent], beyond those concerning the mill shell lining ("Blindage broyeur"), cement silos ("Silos ciments") and conveyor bridge ("Long Convoyeurs"), for which liquidated damages are due in the amount of EUR 5,700.00 (i.e., EUR 2,700.00 for the mill shell lining ("Blindage broyeur" + EUR 1,500.00 for the cement silos ("Silos ciments") + EUR 1,500.00 for the conveyor bridge ("Long Convoyeurs")).

203.

In sum, [Claimant 1 and Claimant 2] is entitled to be paid by [Respondent] liquidated damages in the amount of EUR 5,700.00.

4. Breach of the arbitration agreement

204.

In the Partial Award, the Sole Arbitrator found as follows:

"Given the existence of the arbitration agreement, the Respondent should have brought the claims concerning the Steel Structure Works before an ICC tribunal. By initiating proceedings before the Mauritanian courts instead, the Respondent breached the arbitration agreement and is thus liable for any damages that the [Claimant and the Additional Party] have incurred therefrom, to be quantified in the subsequent phase of the arbitration."134

205.
It thus fell on the Claimant and the Additional Party to quantify the damages arising from the Respondent’s breach of the arbitration agreement in the present phase of this arbitration.
206.

[Claimant 1 and Claimant 2] claims three categories of "expenses" in relation to [Respondent]’s breach of the arbitration agreement,135 namely cost and time spent by (i) [Claimant 1 and Claimant 2]’s staff, including its project director, project manager, site manager, and in-house counsel; (ii) its Austrian counsel; and (iii) its Mauritanian counsel.

207.

The Sole Arbitrator has reviewed each of these items. In respect of (ii) (Austrian counsel) and (iii) (Mauritanian counsel), the Sole Arbitrator notes that their fees and expenses are supported by invoices, in the amounts of EUR 120.00 for Austrian counsel136 and EUR 4,952.25 for Mauritanian counsel.137 Having reviewed these invoices, the Sole Arbitrator considers them related to the Mauritanian court proceedings at issue here. Both sets of invoices were issued at a contemporaneous time to the Mauritanian court proceedings. The invoices issued by Mauritanian counsel also provide detailed explanations as to the activities performed by the lawyers in connection to such court proceedings. The Sole Arbitrator also notes that the Respondent has not disputed that these invoices were related to the Mauritanian court proceedings. Thus, [Claimant 1 and Claimant 2] is entitled to be compensated for these amounts it has expended to defend itself in those proceedings.

208.

By contrast to the external counsel’s fees, the amounts claimed for (i), i.e. the time and costs of [Claimant 1 and Claimant 2]’s staff, are unsupported by any evidence. [Claimant 1 and Claimant 2] has merely alleged an hourly rate for four members of its staff and indicated the number of hours these individuals have allegedly spent in connection with the Mauritanian court proceedings. The chart reproduced from the SoC reads as follows:

[Redacted image]

209.

The Sole Arbitrator considers that [Claimant 1 and Claimant 2] has not sufficiently established the above listed items relating to the costs and time spent by its staff. Furthermore, the amount claimed by [Claimant 1 and Claimant 2] in this respect (a total of 47,400 EUR) appears disproportionate if compared to the fees and expenses claimed for the Austrian/Mauritanian lawyers, which are almost 10 times lower.

210.

Nevertheless, the Sole Arbitrator accepts the principle that [Claimant 1 and Claimant 2]’s staff must have spent some time on the Mauritanian court proceedings and that, absent [Respondent]’s breach of the arbitration agreement, such time would have likely been spent on other matters. He also accepts that it is difficult to estimate with precision the financial loss deriving from the allocation of time of [Claimant 1 and Claimant 2]’s staff to these court proceedings, in particular because these individuals are likely paid a regular salary which would have in any event been paid notwithstanding the breach.

211.

This being so, Article 42(2) of the Swiss CO provides that "[w]here the exact value of the loss or damage cannot be quantified, the court shall estimate the value at its discretion in the light of the normal course of events and the steps taken by the injured party". Applying this provision, and taking into account (i) the nature of the court proceedings at issue and (ii) the fact that [Claimant 1 and Claimant 2] was assisted by external counsel (which thus must have performed part of the work and whose fees have been separately taken into account in the overall calculation of the loss), the Sole Arbitrator considers that each of the individuals listed above would, in the normal course of events, have spent 20 hours each on the proceedings, by collecting evidence, liaising with external counsel, reviewing documents, attending telephone meetings, etc. At the rate provided by [Claimant 1 and Claimant 2], which the Sole Arbitrator considers reasonable in light of the individuals’ seniority (project director: EUR 200/h, project manager: EUR 130/h, site manager: EUR 100/h, inhouse counsel: EUR 150/h), the Sole Arbitrator estimates the damages to be equal to EUR 11,600, i.e. EUR (20 x 200) + (20 x 130) + (20 x 100) + (20 x 150).

212.
In sum, the Sole Arbitrator considers that the Claimant and the Additional Party are entitled to damages resulting from the Respondent’s breach of the arbitration agreement in the amount of EUR 16,672.25 (i.e., EUR 120.00 + EUR 4’952.25 + EUR 11’600).

IX. INTEREST

213.

[Claimant 1 and Claimant 2] claims interest of 5% "on all amounts it owes as of the date these amounts became due".138 It has not made more specific submissions on the dies a quo from which interest is due.

214.

The Sole Arbitrator finds that [Claimant 1 and Claimant 2] is entitled to interest, as it must be placed in the position it would have been had the Respondent not breached the Contract. This entails that [Claimant 1 and Claimant 2] is entitled to all moneys it should have received at their present value, which means the sums plus interest.

215.
Under Swiss law, interest is normally set at the rate of 5%,139 and accrues from the date when the principal sum was due.140
216.

Starting from the liquidated damages which [Claimant 1 and Claimant 2] is entitled to in accordance with the Sole Arbitrator’s findings supra at section VIII.B.3, the Sole Arbitrator considers that, absent any more specific indications for the dates on which the liquidated damages became due, the most appropriate date is the one indicated as the "date de réception" in the Respondent’s table evidencing the relevant delays, as in fact such date shows the amount of days of delay. Hence, interest shall accrue from the following dates:

  1. 15 February 2017 for the liquidated damages established in the amount of EUR 2,700 for the "blindage broyeur";
  2. 28 February 2017 for the liquidated damages established in the amount of EUR 1,500 for the "Silos ciments"; and
  3. 1 March 2017 for the liquidated damages established in the amount of EUR 1,500 for the "Long Convoyeurs".
217.

With regard to the damages for breaches of the arbitration agreement, the dies a quo shall be the dates of the invoices of Austrian and Mauritanian counsel. Hence, interest shall accrue from the following dates:

  1. 5 October 2018 for the amount of EUR 120.00;
  2. 3 August 2017 for the amount of EUR 618.32;
  3. 26 April 2018 for the amount of EUR 481.83;
  4. 10 October 2018 for the amount of EUR 2,807.00;
  5. 3 December 2018 for the amount of EUR 1,045.00.
218.

With regard to the damages for fees and costs of [Claimant 1 and Claimant 2]’s staff which have been quantified in the amount of EUR 11,600.00, in the absence of further indication as to when these amounts became due, for simplicity the Sole Arbitration decides that interest shall accrue from the date of the signature of the Award, which is 28 January 2020.

X. COSTS

219.

Both Parties request an award of costs in respect of the legal fees and expenses and the costs incurred in connection with this proceeding.141

220.

The Claimant’s and the Additional Party’s legal fees and expenses amount to USD 51,136.89.142 They submit that these fees and expenses are reasonable143 and have provided supporting documentation, i.e. invoices. In addition, the Claimant and the Additional Party have advanced to the ICC USD 60,000.00 on account of the fees and expenses of the Sole Arbitrator and the ICC administrative expenses.144 The Claimant and the Additional Party request that the Sole Arbitrator order the Respondent to bear all of their costs incurred during the arbitration.145

221.

More specifically, the Claimant and the Additional Party argue that a costs award is warranted because the Respondent has already been found to have breached the arbitration agreement and has conducted the arbitration in a manner which has led to delays and increased costs. In particular, [Claimant 1 and Claimant 2] contends that the Sole Arbitrator, in allocating costs in favor of the Claimant and the Additional Party, should take into account the fact that the Respondent: (a) did not consent to the application of the expedited procedure provisions; (b) sought the replacement of the Sole Arbitrator "in bad faith and without any valid reason"; (c) sought to reargue the same issues that had already been decided in the Partial Award; (d) filed its briefs in French, although the language of the arbitration was English, "providing nearly unintelligible machine-translations into English that took significant time to attempt to read or understand"; (e) made wholly unnecessary requests for documents already in its own possession; (f) brought counterclaims which it never intended to pay for, forcing [Claimant 1 and Claimant 2] nevertheless to respond to them; (g) breached the arbitration agreement by initiating local proceedings in Mauritania and refusing to pay its own costs of arbitration; (h) made a number of illegitimate procedural requests, such as requesting the name of the case to be changed for no good reason, or requesting diagrams of the chantier of no apparent relevance to issues in dispute, or requesting that memorials be stricken from the arbitration since they were submitted shortly after midnight; (i) made "very crude ad hominem attacks throughout the arbitration" against the Claimant and the Additional Party; (j) joined the Additional Party to the arbitration and then sought to withdraw it from the arbitration, even after this issue had been ruled upon.146

222.

The Respondent, for its part, claims a total of EUR 70,000 in respect of fees and expenses.147 It has advanced USD 5,000.00 on account of the fees and expenses of the Sole Arbitrator and the ICC administrative expenses.148 It has made no specific submissions in respect of costs, save to rebut [Claimant 1 and Claimant 2]’s costs submissions.149

223.

On 7 June 2018, upon the Claimant’s and the Additional Party’s request, the ICC Court fixed separate advances on costs in the amounts of USD 60,000 for the principal claims and USD 60,000 for the counterclaims (Article 37). At its session of 23 January 2020, the ICC Court, pursuant to Article 38(1) of the ICC Rules, fixed the total costs of the arbitration at USD 65,000.

224.

The Sole Arbitrator’s decision on the costs of the arbitration is governed by Article 38 of the ICC Rules which reads in relevant part as follows:

Article 38. Decision as to the Costs of the Arbitration

(1) The costs of the arbitration shall include the fees and expenses of the arbitrators and the ICC administrative expenses fixed by the Court, in accordance with the scale in force at the time of the commencement of the arbitration, as well as the fees and expenses of any experts appointed by the arbitral tribunal and the reasonable legal and other costs incurred by the parties for the arbitration.
[...]
(4) The final award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.
(5) In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.
[...]

225.

Article 38(4) and (5) of the ICC Rules gives the Sole Arbitrator broad discretion in deciding on the costs of the arbitration as defined at Article 38(1). A common method is to award costs to the prevailing party or, where no party clearly prevails, to allocate costs taking into account the relative success of the claims and defenses ("costs follow the event"). As mentioned in Article 38(5), arbitral tribunals also frequently take into consideration the parties’ respective conduct in the arbitration.

226.

In allocating costs between the Parties, the Sole Arbitrator has first considered the outcome of the Parties’ claims and requests. [Claimant 1 and Claimant 2] has partly prevailed on its claims. It has succeeded on its claims regarding the breach of the arbitration agreement.150 Moreover, its claim for liquidated damages for delays has been partly upheld. However, its claims in respect of the back charges and additional expenses have been dismissed. Hence, overall [Claimant 1 and Claimant 2] has partly succeeded on its claims, although it was awarded less than what it had claimed. In assessing the outcome, it bears noting that the Claimant and the Additional Party would not have been made whole had they not resorted to arbitration, which could not be done without incurring costs - whatever the amounts claimed and awarded.

227.

The Sole Arbitrator has also considered the Parties’ conduct in the arbitration and whether they conducted the proceedings in an expeditious and cost-effective manner. It is of the view that the Respondent has made numerous unmeritorious requests that have made the arbitration considerably more burdensome and costly. In particular, on repeated occasions the Respondent sought to re-open questions that had already been rule upon. For instance, even though the Additional Party was joined at the Respondent’s request, the Respondent later sought to withdraw the Additional Party from the proceedings.151 Similarly, it made repeated requests regarding the change of caption of the arbitration and the denomination of the two [Claimant 1 and Claimant 2] entities, which were entirely without merit.152 Finally, on two occasions, it sought to strike [Claimant 1 and Claimant 2]’s submissions from the record because they had been filed just a few minutes after the expiration of the relevant time limit and even though it alleged no prejudice from such minimal delay.153 All of these unnecessary procedural incidents required [Claimant 1 and Claimant 2] to provide its comments and the Sole Arbitrator to make decisions, all of which increased the time that had to be devoted to these issues and, as a result, the costs of the arbitration.

228.
By contrast, the Claimant and the Additional Party, as well as it counsel, conducted themselves in an expeditious, cost-effective and professional manner throughout the proceedings.
229.

Therefore, in the exercise of his discretion and having regard to all the circumstances of the case, in particular [Claimant 1 and Claimant 2]’s relative success on the claims and the Parties’ conduct during the proceedings, the Sole Arbitrator decides that the Respondent shall bear 70% and [Claimant 1 and Claimant 2] 30% of the costs of this arbitration.

230.
Consequently, taking into consideration that the Claimant and the Additional Party have advanced USD 60,000.00 and the Respondent has advanced USD 5,000.00, the Respondent shall refund to the Claimant and the Additional Party USD 40,500.00.
231.

With regard to the legal fees and expenses, in the exercise of his discretion and taking into account the same factors discussed above, the Sole Arbitrator decides that the Respondent shall bear 70% of the Claimant’s and the Additional Party’s legal fees and other expenses incurred in connection with the arbitration, while the Respondent shall bear its own legal fees and expenses. The Sole Arbitrator has reviewed [Claimant 1 and Claimant 2]’s costs statements and considers the costs incurred to be reasonable in light of the nature of the case. It bears noting that the Respondent has claimed a higher amount in respect of its own costs of the arbitration (EUR 70,000), which further corroborates the conclusion that [Claimant 1 and Claimant 2]’s (lower) fees and expenses are reasonable. Hence, in light of his decision that the Respondent shall pay 70% of [Claimant 1 and Claimant 2]’s legal fees and expenses, the Respondent shall refund to the Claimant and the Additional Party USD 35,795.00.

232.
This cost decision deals with the costs of all phases and aspects of this arbitration, including interim measures, joinder, jurisdiction, and merits.

XI. DECISION

233.

For the foregoing reasons, the Sole Arbitrator makes the following decision:

  1. The Respondent’s counterclaims are considered withdrawn without prejudice to their reintroduction in another proceeding;
  2. [Respondent] shall pay to [Claimant 1] and [Claimant 2] the following amounts in liquidated damages:
    i. EUR 2,700.00;
    ii. EUR 1,500.00;
    iii. EUR 1,500.00;
  3. [Respondent] shall pay to [Claimant 1] and [Claimant 2] the following amounts for the breaches of the arbitration agreement:
    i. EUR 120.00;
    ii. EUR 618.32;
    iii. EUR 481.83;
    iv. EUR 2,807.00;
    v. EUR 1,045.00;
    vi. EUR 11’600.00;
  4. [Respondent] shall pay to [Claimant 1] and [Claimant 2] simple interest of 5% per annum on each of the amounts indicated supra at paras. 233(b) and 233(c) from the following dates until full payment:
    i. From 15 February 2017 for the amount of EUR 2,700.00;
    ii. From 28 February 2017 for the amount of EUR 1,500.00;
    iii. From 1 March 2017 for the amount of EUR 1,500.00;
    iv. From 5 October 2018 for the amount of EUR 120.00;
    v. From 3 August 2017 for the amount of EUR 618.32;
    vi. From 26 April 2018 for the amount of EUR 481.83;
    vii. From 10 October 2018 for the amount of EUR 2,807.00;
    viii. From 3 December 2018 for the amount of EUR 1,045.00.
    ix. From 28 January 2020 for the amount of EUR 11’600.00.
  5. [Respondent] shall pay to [Claimant 1] and [Claimant 2] the amount of USD USD 40,500.00 as reimbursement of the costs of the arbitration;
  6. [Respondent] shall pay to [Claimant 1] and [Claimant 2] the amount of USD 35,795.00 as reimbursement of the legal fees and expenses;
  7. All other claims are dismissed.
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