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

Final Arbitration Award

I. Introduction

a.
On 10 March 2014, the Secretariat (the "Court Secretariat") of the International Court of Arbitration of the ICC (the "ICC Court") acknowledged receipt of a Request for Arbitration (the "Request") filed by Del Monte against INPROTSA on the basis of the Pineapple Sales Agreement ("Contrato de Compraventa de Piña") dated 9 May 2001, to which Corporación de Desarrollo Agrícola Del Monte S.A. ("CDADM"), a Del Monte affiliate, and INPROTSA are parties (hereinafter the "Agreement"). On 12 December 2002, with the consent of INPROTSA, CDADM assigned its rights under the Agreement to Corporación Bandeco CR, S.A. ("Bandeco"), an affiliate of Del Monte. On 17 August 2004, with the consent of INPROTSA, Bandeco assigned its rights under the Agreement to Del Monte Fresh Produce International Inc. ("DMFPI"), an affiliate of Del Monte. On 18 June 2010 DMFPI, with the consent of INPROTSA, assigned its rights and obligations under the Agreement to Del Monte.
b.
This arbitration has been commenced on the basis of clause 19 of the Agreement1, which according to the certified English translation provided by the Claimant, recites as follows:

"Arbitration : Any dispute, difference or claim arising from, related to, or in connection with this agreement, including but not limited to any matters related to its existence, validity, or termination, or regarding breach of the same, shall be resolved through arbitration in law under and in accordance with the Rules of Arbitration (the "ICC") and shall be administered by the International Chamber of Commerce (ICC). The arbitral tribunal (the "Tribunal") shall be comprised by three arbitrators. One arbitrator shall be designated by the party initiating the arbitration (the "Plaintiff") in the Plaintiff’s Request for Arbitration. The second arbitrator shall be designated by the party sued (the "Defendant") in the Defendant’s Response. The arbitrators designated by the parties shall select a third arbitrator, who shall preside over the Tribunal. If, within thirty days following the designation of the arbitrator by each party, said arbitrators have not reached an agreement regarding the third arbitrator, then said third arbitrator shall be designated by the ICC. The location of the arbitration shall be the city of Miami, State of Florida, U.S.A. The arbitration minutes shall be recorded in English and all arbitrators shall be fluent in the English language. All submissions must be made in English or with an English translation. Witnesses may testify in a language other than English as long as simultaneous translation into English is provided. Each party shall cover the translation costs corresponding to its own witnesses and documents. Any award by the Tribunal shall be final, and compliance with the same shall be mandatory for the Parties, their successors and assignees without further appeal, recourse or review. Any such decision may be enforced, if necessary, by any court of competent jurisdiction. Costs of arbitration, including reasonable attorney’s fees, costs and expenses, shall be borne by the losing party or prorated in accordance with the Tribunal’s award, in the case of a decision through settlement".

c.
The Claimant is Del Monte International, GmbH, a corporation existing under the laws of Switzerland, located at 74 Boulevard d'Italie, MC 98000, Monaco.
d.
The Respondent is Inversiones y Procesadora Tropical S.A., a corporation formed under the laws of Costa Rica, located at Alajuela-San Carlos Pital de la Iglesia, 4 km hacia Veracruz, La Carretera Principal, Costa Rica.
e.
The Claimant is represented by Brian J. Stack, Esq. and Lázaro Fernández, Jr., Esq. Stack Fernandez Anderson & Harris, P.A, Brickell Bay Tower,1001 Brickell Bay Drive, Suite 2650, Miami, Florida 33131-4940, U.S.A. Telephone: 305 371 0001.Facsimile: 305 371 0002. E-mails: bstack@stackfernandez.com ; lfernandez@stackfernandez.com
f.
The Respondent is represented by Richard C. Lorenzo, Esq., Luis Enrique Graham, Esq., Alan Bonfiglio, Esq.,and Roland Potts, Esq., Hogan Lovells US LLP,600 Brickell Avenue, Suite 2700, Miami Florida 33131, U.S.A. Telephone: 305 459 6500.Facsimile: 305 459 6550.E-mails: Richard.lorenzo@hoganlovells.com ; Luis.graham@hoganlovells.com ; Alan.bonfiglio@hoganlovells.com ; Roland.potts@hoganlovells.com
g.
By letters of 10 March 2014, the Court Secretariat acknowledged receipt of the Request, dated 6 March 2014 and received on 7 March 2014, noted the nomination in the Request of Humberto H. Ocariz as co-arbitrator, and transmitted the Request to the Respondent;
h.
By letter of 8 April 2014, the Court Secretariat acknowledged the nomination by the Respondent of Alejandro Ogarrio Ramírez España as co-arbitrator, and granted the Respondent an extension of time for answering the Request;
i.
By letter of 22 April 2014, the Court Secretariat informed that the Secretary General confirmed Humberto H. Ocariz as co-arbitrator upon the Claimant’s nomination, and Alejandro Ogarrio Ramírez España as co-arbitrator upon the Respondent’s nomination;
j.
By letter of 12 May 2014, the Court Secretariat advised the Parties that the co-arbitrators were unable to jointly nominate the President of the Arbitral Tribunal within the granted time limit and, as such, that the ICC Court would appoint the President.
k.
By letter of 15 May 2014 the Court Secretariat acknowledged receipt of the Respondent’s answer to the request and counterclaim, and noted that the Claimant’s reply to the counterclaim was due on 16 June 2014.
l.
After the appointment by the ICC Court of Horacio A. Grigera Naón as President of the Arbitral Tribunal upon proposal of ICC’s Argentine National Committee, the arbitral file was transmitted to the Arbitral Tribunal by letter of the Court Secretariat dated 22 May 2014.
m.
The Arbitral Tribunal is constituted as follows:

Dr. Horacio Alberto Grigera Naón
5224 Elliott Road
Bethesda, Maryland 20816
Telephones: 1-301-229 1985, 1-202-436-4877
Facsimile: 1-301-320 3136
E-mails: hgnlaw@gmail.com, hgrigeranaon@yahoo.com.

Humberto H. Ocariz, Esq.,
Shook, Hardy & Bacon, LLP
201 South Biscayne Blvd, Suite 3200
Miami Florida 33131-4332
Telephone: 305-358-5171
Facsimile : 305-358-7470
E-mail: hocariz@shb.com

Alejandro Ogarrio Ramírez España, Esq.,
Ogarrio Daguerre, S.C.
Avenida Constituyentes 345, Piso 7
Colonia Daniel Garza, Delegación Miguel Hidalgo
México D.F., México C.P. 11830
Telephone: + (52)(55) 52 71 32 22/52 72 96 33 Facsimile: + (52)(55) 52 71 36 65
E-mail: aogarrio@ogarrio.com.mx

n.
On 11 September 2014, the Court Secretariat acknowledged receipt of the Terms of Reference executed by the Parties and the members of the Arbitral Tribunal.
o.
On 30 June 2014, in accordance with Article 24 of the 2012 Rules of Arbitration of the International Chamber of Commerce (the "ICC Rules"), the Arbitral Tribunal issued a Procedural Order No. 1 setting forth procedural rules and the procedural timetable for this arbitration.
p.
On 13 January 2015, the Arbitral Tribunal issued a Procedural Order No. 2 resolving certain issues arisen in connection with the production of documents by the Claimant.
q.
On 30 January 2015, the Parties simultaneously filed and exchanged their Claim Memorials.
r.
On 17 April 2015, the Arbitral Tribunal issued a communication to the Parties further addressing production of documents issues.
s.
By a Procedural Order No. 3 of 29 June 2015, the Arbitral Tribunal denied a Claimant’s Motion to Strike Respondent’s Unpled Counterclaims and for Summary Adjudication as to all Respondent’s Counterclaims.
t.
By a Procedural Order No. 4 of 30 June 2015, the Arbitral Tribunal decided various document production issues raised by the Parties.
u.
By a Procedural Order No. 5 of 5 July 2015, the Arbitral Tribunal decided further document production issues raised by the Parties.
v.
On 17 July 2015, the Parties simultaneously filed and exchanged their Reply Memorials.
w.
On 3 August 2015, the Arbitral Tribunal issued a communication ordering the Claimant to produce a certain confidential settlement agreement and mutual release dated 12 April 2002 in and between Del Monte Fresh Produce Company and Del Monte Fresh Produce N.A., Inc. on the one hand, and Dole Food Company, Inc. and Dole Fresh Fruit Company on the other hand.
x.
On 28 August 2015, the Parties simultaneously filed and exchanged Rebuttal Memorials.
y.
On 12 October 2015, the Arbitral Tribunal denied a Claimant’s application to argue or apply for the exclusion of evidence when a fact or expert witness is tendered for examination during the hearing on the merits.
z.
On 26 October 2015, the Arbitral Tribunal issued a Procedural Order No. 6 which granted, on the basis of Articles 23 (4) and 22 (4) of the ICC Rules, the Claimant’s Motion to Strike Respondent’s Sherman Act Counterclaim.
aa.
On 2-11 November 2015, a Hearing on the merits took place in Miami, Florida, U.S.A.
bb.
In addition to hearing the Parties’ respective oral statements, the Arbitral Tribunal heard the following witnesses during the Hearing: Claimant : Rodrigo Jimenez, Jose Antonio Yock Fung, Sergio Vargas Pagan, José Nixon Jiménez Castillo, Luis Gerardo Arias Hidalgo, Max Aragon Arrieta, Rodrigo Segura, Hans Sauter, Alfredo Volio, Zoltan Pinter, Hani El-Naffy and Patrick Gannon (expert). Respondent: Jorge Luis Gurría Hernández, Manuel Gurría Ordóñez, Alvaro Sáenz Fernández; Roberto Hernández Ampié, Gustavo Espinosa and Garrett W. Rush (expert).
cc.
In accordance with the directions of the Arbitral Tribunal, on 13 November 2015 the Parties stated in writing their respective claims and relief sought; and on 16 November 2015 the Parties made specific written post-hearing submissions regarding certain updated figures presented by the expert Garrett W. Rush in his Second Expert Report.
dd.
In accordance with the Arbitral Tribunal’s directions, on 15 January 2016, the Parties filed simultaneous post-hearing briefs.
ee.
The original time limit for rendering the Final Award was 29 February 2016, as set by the ICC Court in its correspondence dated 24 July 2014. This time limit was regularly extended by the ICC Court until 30 June 2016 (last extension granted at the ICC Court’s session of 12 May 2016).
ff.
By communication dated 22 March 2016, the Arbitral Tribunal declared these proceedings closed (Article 27 of the ICC Rules).
gg.
Exclusively in order to allow the Parties to file their respective statements of legal representation and defense fees and costs, by communication dated 13 April 2016 the Arbitral Tribunal re-opened these arbitral proceedings and invited the Parties to submit the said statements.
hh.
In accordance with the directions of the Arbitral Tribunal, on 22 April 2016 the Parties submitted their respective statements of legal representation and defense fees and costs.
ii.
By communication of 26 April 2016, the Arbitral Tribunal again declared these proceedings closed (Article 27 of the ICC Rules).
jj.
When making its findings or determinations or reaching its conclusions, the Arbitral Tribunal refers to specific evidence or pleadings. However, the Arbitral Tribunal has studied and considered the entire record of this arbitration, including argument and evidence not expressly referred to in this Final Award.

II. The Parties’ Respective Positions

a) The Claimant’s Claims.

1.
Del Monte is suffering ongoing severe competitive and financial harm due to INPROTSA's ongoing breach of the Agreement, wherein INPROTSA expressly agreed to sell certain pineapples exclusively to Del Monte and further agreed not to sell those certain pineapples to Del Monte's competitors upon termination of the Agreement.
2.
The term of the Agreement ran from 9 May 2001 to 8 May 2013. Pursuant to the Agreement, INPROTSA agreed to grow, sell, package, and deliver certain "MD-2" variety pineapples on an exclusive basis to Del Monte. The MD-2 pineapple is widely known throughout the world as the "Del Monte Gold" pineapple.
3.
Under the Agreement, Del Monte supplied, at no cost to INPROTSA, the seeds INPROTSA used on its plantation to propagate the MD-2 plant stock and pineapples it grew. Throughout the term of the Agreement Del Monte also provided INPROTSA, at no cost to INPROTSA, with extensive technical expertise and assistance concerning, among other things, the planting, cultivation, and harvesting of MD-2 pineapples to assist INPROTSA in achieving optimum growth and development of these MD-2 pineapples. Del Monte contends that at least 95% of the MD-2 plants on INPROTSA's land today are derived from the tens of millions of MD-2 seeds received by INPROTSA under the Agreement from 2001 to 2007.
4.
In turn, INPROTSA expressly acknowledged in the Agreement that Del Monte owned all MD-2 seeds used on its plantation. INPROTSA further acknowledged that "[t]he sole purpose of [the Agreement] is the production of the MD-2 variety for its exclusive sale to [Del Monte]" (Agreement, clause Second). INPROTSA thus expressly agreed "not to sell MD-2 pineapples or to use in any way this seed or plant stock to benefit third parties" and that "if for any reason [INPROTSA] were to stop selling this [MD- 2] pineapple to [Del Monte], or in the event that this Agreement is terminated for any reason at any time, either as a result of early termination or upon its expiration, [INPROTSA] will immediately cease production of this [MD-2] variety, and it is obligated to destroy or return to [Del Monte] the plant stock which is [Del Monte's] property" (Agreement, clause Second).
5.
Under the Agreement, INPROTSA obtained much more favorable terms to access and cultivate the MD-2 variety (designated as "73-114" by the Pineapple Research Institute) - a hybrid exclusively developed through Del Monte's research and efforts for many years - than those offered to INPROTSA by Dole (Standard Fruit Company of Costa Rica S.A.). INPROTSA obtained these terms after Dole sent a termination letter dated 19 July 2000 to INPROTSA putting an end to a contract between INPROTSA and Dole dated 7 July 1997 for the production and sale of the Champaka pineapple variety, which no longer enjoyed market and consumer acceptance, and could not compete with the MD-2 variety. Among other things, at that time, the MD-2 seeds were very scarce and Dole could not undertake to supply the MD-2 seed to INPROTSA according to INPROTSA's needs. The MD-2 seeds could only be obtained at a unit price in the range of US$ 1.00, while under the Agreement the MD-2 seeds were supplied to INPROTSA at no charge. As a result, on 24 April 2001, Dole and INPROTSA executed an agreement called "Finiquito", which put an end to Dole and INPROTSA contractual relationship, thereby enabling INPROTSA to enter into the Agreement with Del Monte.
6.
The MD-2 variety would have been released to Del Monte Hawaiian Operations in 1981 and improved thereafter to adapt it to large scale farming through the efforts of Corporación de Desarrollo Piñero de Costa Rica ("Pindeco"), a division of Corporación Agrícola Del Monte S.A.. This MD-2 variety was known as Maui Gold® since 1988, and is known now as Del Monte Gold®. In 1994 Del Monte decided to ship MD-2 stumps to Costa Rica, where Del Monte continued its efforts to adapt the MD-2 variety to the climate and other conditions existing in Costa Rica.
7.
On 27 March 2000, Del Monte Fresh Produce Company and Del Monte Fresh Produce N.A. Inc. filed a complaint (the "Complaint") in the United States District Court for the Southern District of Florida against Dole Food Company, Inc. and Dole Fresh Fruit Company, inter alia for conversion and misappropriation of trade secrets relating to the MD-2 variety (Del Monte Gold®) because of the utilization by Dole of MD-2 plant material supplied by Cabo Marzo, a Costa Rican farm which, until approximately 1997, sold pineapple to Dole (the "Del Monte-Dole Litigation"). Cabo Marzo would have unlawfully obtained Del Monte MD-2 plant material from Del Monte Costa Rican plantations and provided it to Dole. Thus, Dole became able to propagate this plant material to compete with Del Monte in the pineapple market.
8.
The Claimant contends that this dispute and the fact that Del Monte's ownership of the MD-2 variety were in question were widely known in Costa Rica, the Dole/Del Monte litigation was much publicized and not ignored by INPROTSA during the 2000 and 2001 discussions that led to the execution of the Agreement between the Parties. Thus, the Claimant asserts, INPROTSA was fully aware of the challenge to Del Monte's ownership rights on the MD-2 variety when the Parties jointly stipulated in the Agreement and accepted that Del Monte was the exclusive owner of the MD-2 variety. Therefore, any allegation that Del Monte misrepresented a material fact that, if known, would have led INPROTSA not to enter into the Agreement, should be rejected. In any case, the Claimant argues that, under Florida law, any INPROTSA action for fraud or misrepresentation against Del Monte has prescribed.
9.
The Claimant further alleges that prior to the execution of the addendum dated 12 December 2002 (the "Addendum") mentioned in paragraph I(a) of the Introduction of this Final Award, the Respondent was generally aware of the 12 May 2002 Confidential Settlement Agreement and Mutual Release (the "Settlement Agreement") that put an end to the Del Monte/Dole litigation initiated with the Complaint and as a result of which the MD-2 variety became in the public domain and Dole or any third party could continue to freely grow and sell MD-2 pineapples. Therefore, the Claimant denies INPROTSA's argument that clause 2 of the Addendum providing that the Agreement remains in full force and effect would imply a reiteration of alleged misrepresentations as to ownership of the MD-2 variety already found in the Agreement. The Claimant asserts the same in connection with similar wording found in successive Addenda to the Agreement dated 17 and 30 August 2004, 1 February 2006 and 25 May 2007.
10.
Although the Claimant accepts that after the date of the Settlement Agreement it could not vindicate exclusive ownership rights on the MD-2 variety vis-à-vis third parties, it denies that such circumstance prevents Del Monte from enforcing its contractual rights in regard to INPROTSA under the terms of the Agreement. In particular, Del Monte relies to this effect on the following wording found in the Section 7.1 of the Settlement Agreement2:

"....Del Monte does not by executing the [Settlement Agreement] agree, admit, or acknowledge that it has no proprietary or protectable interest in, or origination credit for, the hybrid pineapple known variously as 73-114, MD-2, and MG-3; and Del Monte does not hereby covenant not to sue persons or entities other than the persons or entities specifically covered by this [Settlement Agreement]".

11.
The Agreement expired by its own terms on 8 May 2013. However, it was not until 6 December 2013 that INPROTSA provided Del Monte written notice that INPROTSA would not renew or extend the Agreement. Since that time INPROTSA has, in brazen and material breach of the Agreement, continued to sell hundreds of thousands of MD-2 pineapples grown from Del Monte's seeds and plant stock to Del Monte's competitors throughout the world at great competitive and financial harm to Del Monte.
12.
Consequently, Del Monte has not tortiously interfered, violated any law, or defamed INPROTSA. Del Monte is entitled to enforce its rights under the Agreement and is privileged to protect its competitive and economic interests that are being harmed by INPROTSA's ongoing breach of the Agreement.

b) The Respondent's Position Regarding the Claimant’s Claims.

13.
INPROTSA complied with all of its obligations under the Agreement and as such, Del Monte has no valid claim against INPROTSA. Notwithstanding, nine (9) months after the expiration of the Agreement and after INPROTSA refused to enter into a new contract to sell pineapples to Del Monte at significantly reduced prices, Del Monte brought the instant arbitration and proceeded to defame and tortiously interfere with INPROTSA's business.
14.
Del Monte's claims must be dismissed. First, Del Monte has no contractual right to INPROTSA's MD-2 pineapples as, among other reasons, the Agreement has expired.
15.
Second, Del Monte is not the exclusive owner of the MD-2 pineapple. Because Del Monte is not the exclusive owner of the MD-2 pineapple, Del Monte had no exclusive right to purchase MD-2 pineapples from INPROTSA and INPROTSA had the right to sell its pineapples as it desired. See Agreement, clause 2 (requiring MD-2 pineapples be sold solely to Del Monte only if Del Monte is the exclusive owner of the variety). Should there be any ambiguity in this or other provisions in the Agreement, under Florida law they should be construed against Del Monte as drafter of the Agreement (contra proferentem). INPROTSA emphasizes that, despite the wording found in the Agreement's clause 2, Del Monte could not have exclusive proprietary rights on the MD-2 hybrid by the time the Agreement was executed or thereafter, since Del Monte never patented or intended to patent it and, in any case, clause 2 of the Agreement can only be read in the sense that only if Del Monte held and maintained exclusive proprietary rights on the MD-2 hybrid variety did INPROTSA have the obligation to destroy or return the MD-2 plant stock to Del Monte.
16.
The Respondent also contends that, in any case, restrictive covenants found in clause 2 of the Agreement are unenforceable under Florida law since Del Monte has failed to assert a legitimate business interest justifying them and these covenants are not limited in time or in geographical scope. The Respondent also argues that the covenants violate Costa Rican law which would vest title on the MD-2 plants in INPROTSA and, for that reason, Del Monte may not validly vindicate ownership rights on the MD-2 plants.
17.
Third, INPROTSA no longer has Del Monte seed, plant stock, or vegetative material. As of 2007, Del Monte ceased providing INPROTSA MD-2 seeds. Accordingly, although Del Monte requests the destruction or return of Del Monte seed, plant stock, or vegetative material, there is nothing to destroy or return.
18.
Fourth, during the life of the Agreement (beginning as early as 2011), and thereafter, INPROTSA, with the knowledge and consent of Del Monte, regularly sold MD-2 pineapples to third parties. At no point in more than three (3) years of sales did Del Monte demand INPROTSA destroy or return any seed, plant stock or vegetative material, nor request INPROTSA stop selling MD-2 pineapples to third parties. Rather - the Respondent argues - Del Monte recognized INPROTSA's right to sell MD-2 pineapples to third parties and only raised such objection after it was unable to enter into a new contract, which would have required INPROTSA to sell its pineapples to Del Monte at depressed prices.
19.
In this respect, INPROTSA refers to a 26 February 2014 letter from counsel to Del Monte, indicating that pursuant to the Agreement Del Monte is the exclusive owner of the MD-2 pineapple variety, all the MD-2 seeds used in INPROTSA's plantation and demanding INPROTSA to immediately cease and desist any further sales of pineapples or vegetative materials to third parties and offering as accommodation by Del Monte, for Del Monte to buy the entire INPROTSA pineapple production at F.O.B prices in effect at the time of expiration of the Agreement. Similar letters to the same effect were sent on 26-27 February 2014 to INPROTSA's customers. INPROTSA did not accept the accommodation offered by Del Monte in Del Monte's 26 February 2014 letter mentioned above.
20.
INPROTSA further relies on a Del Monte intra-company memorandum dated 9 July 1993 and authored by M. Pereira, a Del Monte vice-president of sales, in which it is acknowledged that the MD-2 variety is not a proprietary variety and it is said that a press release would be developed to confuse the competition and make it believe that Del Monte had patented the MD-2. To the same effect, INPROTSA also relies on an internal e-mail dated 7 May 1999.
21.
INPROTSA is selling its own MD-2 pineapples to its own clients after the Agreement expired pursuant to its terms. Moreover, Del Monte has no right over or ownership interest in the land in which INPROTSA cultivates its pineapples. INPROTSA alone would suffer irreparable harm if it were restrained from selling its own pineapples and required to destroy all its MD-2 pineapples. Del Monte is not entitled to any relief and its claims must be dismissed.
22.
Fifth, Del Monte's damage claim is unreasonable since it exceeds by far the value of INPROTSA and would bankrupt INPROTSA.
23.
Rather, INPROTSA is entitled to relief as a result of actions taken by Del Monte, including Del Monte's breach of the Agreement, which has caused damages to INPROTSA. Moreover, Del Monte, following the expiration of the Agreement, defamed and disparaged INPROTSA's well-established reputation in the marketplace and disrupted and interfered with INPROTSA's business relationships. For example, Del Monte has threatened litigation against INPROTSA's customers, falsely asserting INPROTSA is selling MD-2 pineapples in violation the Agreement.
24.
Del Monte's actions also constitute violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"). Del Monte has engaged in unfair methods of competition and deceptive acts or practices by, among other actions: (i) misrepresenting to INPROTSA and others that Del Monte is the exclusive owner of the MD-2 pineapple; (ii) contacting INPROTSA's clients and falsely informing them that INPROTSA is selling MD-2 pineapples in violation of the Agreement; and (iii) sending letters to INPROTSA's clients threatening to take legal action against them if they purchase MD-2 pineapples from INPROTSA. Del Monte's actions are causing INPROTSA harm, including the loss of revenue and business opportunities.

c) The Respondent's Counterclaims

25.
On the basis of misrepresentations attributed to Del Monte regarding Del Monte exclusive ownership of the MD-2 variety, tortious interference in the relations of INPROTSA with its customers or clients and the violation of FDUPTA, the Respondent seeks damages against Del Monte.

d) The Claimant's Position Regarding the Respondent's Counterclaims

26.
The Claimant denies having committed any conduct or breach justifying the Respondent's counterclaims.

e) Relief Sought by the Claimant

27.
The Claimant requests:

(i) An award and judgment dismissing INPROTSA's Counterclaim in its entirety;

(ii) A declaration that INPROTSA has breached the Agreement;

(iii) A declaration that INPROTSA has tortiously converted Del Monte's property to its own use;

(iv) An order granting preliminary and permanent injunctive relief prohibiting INPROTSA from violating the terms of the Agreement, including, but not limited to, refraining from selling the MD-2 pineapples, seeds, and plant stock in its possession to third parties; and mandating the destruction of the MD-2 pineapples, seeds, and plant stock in its possession, or, alternatively, ordering their return to Del Monte, and granting Del Monte such other equitable relief as is necessary to effectuate and enforce INPROTSA's obligations under the Agreement;

or, alternatively,

in order to avoid the immediate destruction or return of the Del Monte MD-2 pineapples, seeds, seedlings and plants growing on INPROTSA's plantation (Del Monte vegetative materials or "Del Monte Plant Stock"), INPROTSA may, pursuant to clause Décimo Cuarta of the Agreement, sell to Del Monte all pineapples harvested from Del Monte Plant Stock on INPROTSA's plantation at the FOB prices in effect for Del Monte's other independent growers for the 14 month harvest cycle commencing on the date of this Final Award, on the understanding that as pineapples are harvested, INPROTSA shall destroy or return to Del Monte the Del Monte Plant Stock;

(v) An award and judgment requiring INPROTSA to specifically perform its obligations under the Agreement, including, but not limited to, refraining from selling the MD-2 pineapples, seeds, and plant stock in its possession to third parties; and mandating the destruction of the MD-2 pineapples, seeds, and plant stock in its possession, or, alternatively, ordering their return to Del Monte.

(vi) An award and judgment in favor of Del Monte and against INPROTSA for monetary damages, as follows:

a) Damages for conversion of Del Monte's pineapples and seeds (calculated as of 15 January 2016 (not including prejudgment interest), such damages increasing by US$ 526,635.00 per week thereafter):

US$ 57,403,215.00

b) Alternatively, damages for conversion of MD-2 seeds provided by Del Monte to INPROTSA during the life of the Agreement (2001-2007):

US$ 21,219,825.00 (not including prejudgment interest).

c) Alternatively to damages for conversion, relief incidental to specific performance (breach of contract damages) for the amount of US$ 54,429,150.00 calculated as of 15 January 2016 (not including prejudgment interest), such damages increasing by US$ 499,350.00 per week thereafter:

US$ 52,232,181.00

(vii) An award and judgment in favor of Del Monte and against INPROTSA for pre-judgment and post-judgment interest;

(viii) An award and judgment in favor of Del Monte and against INPROTSA for punitive and exemplary damages.

(ix) An award and judgment in favor of Del Monte and against INPROTSA for all costs, expenses, and reasonable attorneys' fees incurred by Del Monte in this proceeding; and

(x) An award granting Del Monte any further relief the Arbitral Tribunal deems just and proper.

f) Relief sought by the Respondent

28.
The Respondent requests:

(i) That Del Monte's Request for Arbitration be dismissed;

(ii) A declaration that Del Monte breached the Agreement;

(iii) A declaration that Del Monte interfered with INPROTSA's business relationships;

(iv) A declaration that Del Monte engaged in acts or practices in violation of the Florida Deceptive and Unfair Trade Practices Act;

(v) An order requiring Del Monte to pay INPROTSA any and all damages recoverable as a matter of law, amounting to US$ 14,149,087.00 plus interest and punitive damages;

(vi) An order providing for a permanent injunction restraining Del Monte from contacting third party purchasers of INPROTSA's pineapples, including potential or actual purchasers;

(vii) An order that Del Monte reimburse INPROTSA for all advances, costs, expenses, and reasonable attorneys' fees incurred or paid by INPROTSA in connection with this arbitral proceeding; and

(viii) An order granting any further relief the Arbitral Tribunal deems just and proper.

III. Contractual Provisions

29.
The following provisions of the Agreement are often addressed by the Parties in their pleadings, arguments and evidence:

Primera: Área Contratada: (....) La Compañía es dueña exclusiva de la variedad conocida como MD-2, que ha desarrollado bajo su riesgo y costo en la zona de Buenos Aires de Puntarenas, obteniendo un producto de gran aceptación en el mercado, por lo que acepta y decide proveer a La Productora de su semilla para que ésta, conforme al plan de siembra que de común acuerdo establezcan y de acuerdo con la disponibilidad de semilla, proceda a sustituir y ampliar su plantación actual de la variedad Champaka por la nueva variedad MD-2, hasta un 75% del área de la plantación (....).

Segunda: Propiedad de la Semilla y Material Vegetativo:La Productora reconoce que la variedad de piña MD-2 es propiedad de La Compañía y en este sentido, reconoce que toda la semilla de esta variedad que haya sido utilizada en su finca es propiedad de La Compañía. En este sentido, mientras La Compañía/y o Del Monte gocen de la propiedad exclusiva de esta variedad La Productora garantiza que solo venderá la fruta MD-2 que produzca en su finca a La Compañía o a cualquiera de sus afiliadas, de conformidad con los términos de este contrato. La Compañía suministrará la semilla de la variedad MD-2 a La Productora en Buenos Aires de Puntarenas y sin costo alguno. Corre por cuenta de La Productora el transporte de la semilla hasta su finca. Así, La Productora reconoce que la semilla a recibir en su finca es propiedad exclusiva de La Compañía, sin que pueda disponer de ella o de cualquier otro material vegetativo derivado u obtenido de la plantación a desarrollar, si no cuenta con el permiso previo y por escrito de La Compañía.

En este sentido, el fin único del presente contrato de compraventa de piña es la producción de la variedad MD-2 para su venta exclusiva a La Compañía, por lo que, si por cualquier causa La Productora dejare de vender esta piña a La Compañía, o en el evento que este contrato se diere por terminado por cualquier causa en cualquier tiempo, sea en forma anticipada o por vencimiento de su plazo, La Productora deberá cesar en forma inmediata de producir esta variedad, obligándose a destruir o bien devolver a La Compañía el material vegetativo de su propiedad. Así, La Productora asume el compromiso y la obligación de no vender piñas MD-2 ni disponer en forma alguna de esta semilla o cualquier material vegetativo en favor de terceros, bajo pena de incurrir en responsabilidad civil por los daños y perjuicios que le ocasione a La Compañía. También, deberá cuidar y vigilar su plantación, y ofrecer la seguridad necesaria a fin de evitar robos y sustracciones de esta semilla.

Sétima: Derechos Exclusivos: La Productora conviene que, durante el período de vigencia del presente contrato, venderá a La Compañía de manera exclusiva, toda la fruta exportable de primera y segunda calidad cosechada en el área a que contrae el presente contrato de la finca descrita. En el caso de que La Productora vendiera piñas del área contratada a cualquier otra persona o compañía, excepto en los casos previstos en este mismo contrato, La Compañía, a su opción, tendrá el derecho de dar por resuelto unilateralmente y de pleno derecho este contrato, y La Productora será responsable ante La Compañía del pago de todos los daños y perjuicios resultantes y que surgieren como consecuencia de la ruptura del presente contrato por parte de La Productora o de su incumplimiento, o bien podrá exigir a La Productora el fiel cumplimiento de este contrato y su obligación de venderle exclusivamente la fruta a La Compañía por el resto del plazo. En el caso de que La Productora quisiera ampliar el área de cultivo en el área no cultivada de piña o que quisiera desarrollar otro proyecto de piña en algún otro sitio o finca, dará primera opción a La Compañía para ampliar las áreas amparadas al presente contrato y las áreas de cultivo adicionales que apruebe La Compañía se tendrán por incorporadas en los demás términos y condiciones al presente contrato de venta de piña. De no estar interesada La Compañía en ampliar las áreas de cultivo amparadas a este contrato, La Productora podrá hacerlo bajo su propio riesgo y cuenta como un proyecto separado, desarrollando otras variedades, sin que pueda utilizar la semilla o la variedad MD-2, ni los recursos, tecnología, instalaciones y demás beneficios que por este contrato le otorga La Compañía. En todo caso, La Productora se compromete a no utilizar la infraestructura existente en el área contratada para otros fines ajenos a este contrato, a no ser con la anuencia de La Compañía.

Décimo Segunda: Riesgo de Pérdida: Las partes convienen expresamente en que este contrato tiene por objeto la compra de piña exportable y cargada a bordo del transporte refrigerado en la planta empacadora EX-WORKS y en que La Productora conserva su condición de propietaria de la fruta hasta que esté debidamente cargada a bordo del furgón refrigerado. El riesgo de pérdida de fruta, total o parcial, que fuese ocasionado por cualquier razón, manera o causa, será absorbido y sufrido por La Productora, hasta el momento en que la fruta esté entregada y cargada a bordo del furgón refrigerado.

Décimo Cuarta: Término del Contrato : El plazo de este contrato es de doce años, a partir del día 09 del mes de mayo del 2001 y hasta el 08 de mayo del año 2013. Luego podrá ser prorrogado de mutuo acuerdo entre las partes por el plazo que convengan, a menos que una de las partes notifique a la otra su decisión de no renovarlo. Esta notificación debe ser hecha por escrito, por lo menos con seis meses de anticipación al vencimiento del plazo o cualquiera de sus prórrogas. En todo caso La Compañía siempre tendrá la opción preferente de compra de las cosechas remanentes sembradas durante la vigencia del contrato.

Vigésimo Sétima: Compromiso Especial : Las partes convienen en que, un año después d haber entrado en vigencia el presente contrato, La Productora venderá su fruta FOB-puerto costarricense y La Compañía le reconocerá $ 0,59 por caja de 42 libras y $ 0,44 por caja de 27 libras, que corresponden al costo de flete interno, estiba y gastos de embarque.

Vigésimo Novena: De la Resolución de Pleno Derecho : El incumplimiento por parte de La Productora de las obligaciones previstas en las cláusulas Segunda, Cuarta, Quinta, Sexta y Sétima de este contrato facultará a La Compañía a dar por resuelto de pleno derecho el mismo, debiendo en ese evento la primera reconocer a la segunda el pago de los daños y perjuicios ocasionados, además de destruir la plantación desarrollada con la semilla de propiedad de La Compañía. Según convenga mejor a sus intereses, La Compañía podrá, a su elección, exigir el cumplimiento forzoso de este contrato.

IV. The Pineapple Plant. The Pineapple Seeds

30.
Understanding the structure of the pineapple plant and how it reproduces itself allows for a better understanding of disputed issues in this arbitration. A pineapple plant yields a pineapple fruit with a crown or leaves at the top. The pineapple plant propagates itself (engenders new pineapple plants) asexually, i.e., by planting the leaves of the crown (crowns) or the seedlings (shoots, suckers or slips) growing out of different parts of the pineapple plant stem (vegetative reproduction), and not from the fertilization of seeds. The term "pineapple seeds" is generally used to collectively denominate the crowns or seedlings produced by the pineapple plant that in turn may be utilized to grow new pineapple plants by planting them in the soil3. It is in this sense that the term "seed" is used in this Final Award.

V. The Arbitral Tribunal’s Findings and Determinations

A. The Construction and Interpretation of the Agreement’s Provisions and their Impact on the Analysis and Determinations of the Parties’ Claims and Counterclaims.

31.
A matter of central importance for both Parties is the interpretation of certain provisions of the Agreement, particularly of its clauses Primera and Segunda. Since the Parties have conflicting views regarding the translation into English of these and other clauses, the Arbitral Tribunal is only relying on the Spanish original texts reproduced above and is not incorporating an English translation into this Final Award. The respective relevant English text relied upon by each Party is set forth in this Final Award's only Annex.
32.
On the basis of undisputed testimony, the Arbitral Tribunal finds that the phrase "vegetative materials" referred to in the Agreement's clause Segunda means MD-2 crowns, seedlings, pineapple plants and pineapple fruit found on INPROTSA's pineapple farm originating from MD-2 seeds supplied by Del Monte4.
33.
Essentially by relying on clauses Primera and Segunda, the Claimant claims that INPROTSA breached the Agreement by: (a) not ceasing production of the MD-2 variety and not destroying or returning MD-2 vegetative material allegedly belonging to Del Monte at the end of the Agreement; and (b) selling MD-2 pineapple to third parties. Mirroring the Claimant's claims, by also relying on these clauses, INPROTSA: (a) denies having breached the Agreement; and (b) asserts that the Claimant fraudulently induced INPROTSA to enter into the Agreement through misrepresentations by Del Monte that it exclusively owned the MD-2 variety.
34.
The Respondent contends that: (i) when entering into the Agreement, the Claimant misrepresented that it had exclusive ownership (clause Primera) or ownership (clause Segunda) of the MD-2 variety; (ii) because of that representation, the Respondent: accepted: (a) that the Claimant owned the MD-2 seeds/seedlings supplied by the Claimant or obtained from the MD-2 pineapple plants under the Agreement's terms and conditions; (b) subject to Del Monte remaining the exclusive owner of the MD-2 Variety, to exclusively sell MD-2 pineapples to the Claimant (clauses Segunda and Sétima) and to refrain from selling MD-2 pineapples, seeds or seedlings (material vegetativo or "vegetative material") to third parties; and (c) upon termination of the Agreement, to discontinue production of MD-2 pineapples and destroy or return to the Claimant all "vegetative material" belonging to the Claimant (clause Segunda).
35.
The Respondent’s textual analysis of clauses Primera and Segunda of the Agreement essentially relies on the terms En ese sentido ("In that sense"), found in the second line first paragraph and the first line, second paragraph of clause Segunda, as well as on the word Así ("Thus") found four lines from bottom up in the first paragraph of clause Segunda and in clause Segunda, second paragraph (sixth line from bottom to top).
36.
According to the Respondent, all these terms link or subordinate the Respondent’s obligations under these clauses, namely not to sell MD-2 pineapple to third parties and to destroy or return all "vegetative material" at the end of the Agreement, to the Claimant’s representation in the Agreement that it was the exclusive owner of the MD-2 variety. Because such representation was false, the Respondent contends that: (a) the Claimant committed a fraud for which it is liable; (b) the sale by the Respondent of MD-2 pineapple to third parties did not breach the Agreement; and (c) the Claimant is not entitled to have the MD-2 vegetative material returned or destroyed. The Claimant disagrees.
37.
The Arbitral Tribunal considers that the conflicting views of the Parties regarding the construction and interpretation of these and other provisions of the Agreement are to be evaluated against the backdrop of the general arguments of the Parties and supporting evidence on the merits.
38.
The Claimant contends that because of its investments, testing and technological resources - provided over ten years in Hawaii and Costa Rica - to transform the MD-2 hybrid into a pineapple seed and plant susceptible to being successfully commercialized in the international markets, it was entitled to exercise exclusive proprietary rights in the MD-2 variety and also ownership of the MD-2 vegetative materials supplied to Del Monte’s pineapple growers. For that reason, Claimant asserts it was entitled to protection of those rights under its contractual agreements with such growers and also to seek legal protection of such rights in the Del Monte-Dole litigation.
39.
The Claimant asserts that when entering into the Agreement it was justified in believing that it had exclusive ownership of the MD-2 variety since it had developed it using its own technical resources after long testing first in Maui, Hawaii and then in Costa Rica. In the words of Hans Peter Sauter, of Del Monte Fresh Produce Company, during cross-examination:

"Well, it depends on what you mean by "proprietary". I mean, we had not patented it, but we had all of the rights over it, because we had participated in its development, financed its development, and done all of the intellectual work to make it a commercial product".5

40.
After settling the Del Monte-Dole Litigation in 2001, the Claimant admitted that the MD-2 variety was in the public domain and, accordingly, it could not claim exclusive ownership rights on the variety vis-à-vis third parties. But, such was not the situation at the moment of executing the Agreement. Under Florida law - the Claimant contends - there is no fraudulent misrepresentation if there were good reasons to believe that represented facts are true and correct when the representation was made.
41.
Irrespective of whether the MD-2 variety is in the public domain, the Claimant asserts property rights or a proprietary interest in the MD-2 variety not only because of Del Monte's developmental efforts to transform the variety into a commercial product attractive to consumers, but also on the basis of specific contractual rights not resulting from a patent or a trademark. These rights are premised on Del Monte's development of the original MD-2 hybrid, or hybrid 73-114, for commercial purposes, and are primarily reflected in the Agreement's clauses Primera and Segunda. Such clauses are aimed at ensuring that, at the termination of the Agreement, the MD-2 seeds and their progeny (seedlings or parts of the MD-2 pineapple plant used to reproduce pineapple plants) provided by the Claimant to the Respondent are not used to propagate MD-2 seeds or produce MD-2 pineapples that might compete with Del Monte's MD-2 pineapple produce6.
42.
The core reason for Claimant's position is that all that vegetative material in INPROTSA's possession directly or indirectly originated from the MD-2 seeds provided by Del Monte, which were the result of its substantial investment and investigative efforts. From those efforts, it became possible to grow and sell valuable MD-2 pineapples, and Del Monte supplied its MD-2 seeds free of charge to INPROTSA. Because of that supply of seeds, its pineapple sales to the Claimant, and by producing MD-2 pineapple that it sold to Del Monte for 12 years under the Agreement's convenient price conditions,7 the Respondent was able to extricate itself from a negative economic and financial situation pushing it to insolvency.
43.
The variety was developed through research and testing by the Pineapple Research Institute of Hawaii (the "Institute"), created on 31 May 1941 for carrying out agricultural experimental work at its experiment station for the benefit of its members and the protection of the pineapple industry in the territory of Hawaii8. By the mid-1960s the Institute had developed a parent to hybrid MD-2. Although the Institute did not patent this hybrid (as it was authorized to do under the Agreement whereby it was created9), it is undisputed that it was the outcome of initial research and testing work carried out by the Institute for the benefit of its members10.
44.
According to the arbitral record, by 1970, the Institute only had three members: Del Monte, the Dole Fruit Company and the Maui Pineapple Company. On 23 October 1970, Dole withdrew from the Institute and Del Monte and the Maui Pineapple Company remained as the Institute' sole members, which meant that only these two members could undertake developmental work, research and testing regarding the MD-2 hybrid within the context of the Institute. Further, upon Dole's departure from the Institute, 60 percent share of the plant materials held by the Institute was assigned to Dole. Such distribution of materials to Dole was made prior to 31 May 1971. The 73-114 hybrid (or MD-2), however, was created in 1973 from seedlings corresponding to the 40% not distributed to Dole and which remained in the Institute. For that reason, Dole did not have a right to any of those 73-114 seeds or plants.11 This was indeed confirmed in the oral deposition of 21 June 2001 by Dr. Jorge Gonzales, Dole's Research Director of Latin America, submitted in the Del Monte-Dole Litigation and part of this arbitral record (the "Gonzales Deposition").12
45.
In practice, it was Del Monte that carried out the developmental work beginning in the 1970s that finally lead to the production of a MD-2 pineapple susceptible of being successfully commercialized.13 The Maui Pineapple Company does not seem to have played any substantial role, if any, in the development of the 73-114 hybrid, and there is no evidence in this proceeding that it has claimed any rights based on such development. In 1980, Del Monte personnel selected hybrid 73-114 (MD-2) for further research and testing and renamed it as "MD-2", modeling the acronym on the initials of the wife of a Del Monte executive. The MD-2 hybrid was released to Del Monte's Hawaiian operations in 1981.14 From then, Del Monte actively pursued its investigative work and testing of the MD-2, as described in a 27 May 1982 Calvin H Oda (Del Monte's Pineapple Research Director) Special Report evaluating hybrids for fresh fruit and processing.15 In 1988, the Maui Pineapple Company excluded the MD-2 from its varietal collection and there is no evidence in the record that it pursued growing pineapple MD-2 plants or the commercialization of pineapple out of such plants.16 Therefore, only Del Monte remained a member of the Institute. According to Article IV of the Institute’s Agreement, the Institute was the sole owner of the Institute’s assets including patents and patents rights.
46.
From the evidence before the Arbitral Tribunal, it may then be concluded that all rights in the plant material that had not been withdrawn from the Institute by an outgoing Institute member, including the corresponding commercialization rights, were under the exclusive control of Del Monte, the only remaining Institute member. Further, as already indicated, there is no evidence that any other Institute member undertook the development efforts regarding the MD-2 hybrid that had been pursued by Del Monte, which included a Pineapple Varietal Development Program essentially involving genetic testing and clonal selection aimed at addressing weaknesses or disadvantages of the MD-2 hybrid and adapting it to the Costa Rican environment.17 The evidence also shows that the MD-2 variety introduced in Costa Rica from Hawaii originated in Del Monte, which continued the variety’s development in that country. Del Monte was the first to plant the MD-2 in its Costa Rican farms under conditions allowing it to produce, in commercial quantities, an MD-2 pineapple that enjoyed wide market acceptance18. The evidence thus supports the Claimant’s allegation that it was the sole developer of the 73-114 hybrid with the ultimate result of transforming it into a product (the MD-2 variety or hybrid) allowing Del Monte to produce a pineapple susceptible of being successfully commercialized in the international market.
47.
It has then been proven that the Claimant, through its own efforts and investments since the 1970s, did undertake the development of the MD-2 hybrid and MD-2 pineapple plants with the final outcome of producing a pineapple that not only could be commercialized, but that also very quickly gained mass appeal in the international consumer markets, outdistancing itself from other pineapple varieties in the market.
48.
The Claimant also alleges that before signing the Agreement, the Respondent was aware that MD-2 pineapple plants were grown by third parties and that there was an ongoing dispute between Del Monte and Dole concerning their respective rights on the MD-2 hybrid.
49.
The evidence shows that when the Agreement was negotiated and finally executed, it was no secret, particularly in the Pittal San Carlos region where INPROTSA's pineapple farm is located, that the MD-2 variety, plants, seeds and seedlings were in the Costa Rican market or public domain, so that anybody could attempt to plant MD-2 pineapple plants and grow pineapples.19 In fact, it was no secret that anybody buying MD-2 pineapples in a supermarket could grow MD-2 pineapples by utilizing, for example, the pineapple crown, although the Arbitral Tribunal finds that mere access to different elements of the pineapple MD-2 plant (for example, the crown) is insufficient to develop, grow and commercialize MD-2 pineapples meeting quality and taste market requirements. Commercialization of the MD-2 pineapple requires the necessary specialized technical know-how (technical package) and financial resources.20 As far back as 1995, it had become obvious that the MD-2 pineapple was an important pineapple variety or hybrid that everybody wanted to get hold of,21 and it was Del Monte that developed it and brought it to market. Actually, the MD-2 variety was the most significant fresh variety pineapple introduced in the fresh market in the last 60 years (before 2001).22
50.
Further, prior to entering into the Agreement, even the Respondent was growing MD-2 pineapples, that obviously were not obtained from Del Monte.23 This fact means that either Respondent was aware of competing claims to ownership of the MD-2 variety and thus felt comfortable growing it, or Respondent believed Del Monte had a legitimate claim to the MD-2 variety but Respondent nonetheless improperly acquired and grew it. The Arbitral Tribunal will attribute proper motives to INPROTSA and, based on the evidence, concludes that Respondent was aware of competing ownership claims to the MD-2 variety when it was growing its own MD-2 pineapples.24 In fact, the evidence has shown that before signing the Agreement, INPROTSA was aware of the existence of the Del Monte-Dole litigation.25 This is further confirmed by an INPROTSA internal memo predating the execution of the Agreement comparing the Dole and Del Monte proposals regarding the supply of MD-2 seeds, in which it is said that "In favor of Del Monte, we should consider that a ruling of the Courts in which it is litigating with Dole over the exclusivity of the commercialization would eventually leave us without a market"26 and by witness testimony.
51.
The mere fact that INPROTSA was aware of the Del Monte-Dole Litigation while it was deciding to enter or not into the Agreement shows that issues regarding Del Monte's proprietary rights on the MD-2 hybrid were controverted. Under Florida law, representations "...subject to differing views...." may not form the basis of a fraud claim27. On the other hand, although the Settlement Agreement that put an end to the Del Monte-Dole litigation may have prevented Del Monte from asserting certain proprietary rights over the MD-2 variety before third parties, this does not mean that it could not vindicate and enforce contractual rights regarding MD-2 vegetative materials originating from MD-2 seeds provided by Del Monte. Therefore, Del Monte did not fraudulently misrepresent the exclusive nature of such rights, which Del Monte was asserting within the four corners of the Agreement, not as against the general public but only vis-à-vis INPROTSA. Properly understood in this context, Del Monte could legitimately invoke exclusive proprietary rights on the MD-2 hybrid against INPROTSA and pursue the enforcement of clause Segunda of the Agreement. For this reason, the mere fact that in 2002, 2004, 2006 and 2007 Del Monte executed different Addenda or Assignment of Contractual Rights agreements stating that all provisions in the Agreement remain true and valid cannot be understood - as the Respondent contends - as reaffirmations or restatements of original misrepresentations attributable to Del Monte when making the Agreement. Those representations (actually stipulations under the Agreement) were true as between Del Monte and INPROTSA as a matter of contract.
52.
Moreover, José Nixon del Castillo, INPROTSA's Production Manager from June 2001 to April 2012, testified that he was aware of the Del Monte - Dole litigation in which Del Monte pursued the enforcement of its rights in the MD-2 variety, that such legal proceedings were publicly known and followed with attention by the pineapple industry, and that he specifically discussed the litigation with other members of INPROTSA's management, including Fernando Baeza Meléndez, an INPROTSA shareholder and its general manager (hereinafter, "Mr. Baeza")28. Mr. Baeza signed the Agreement on behalf of INPROTSA. Mr. Rodrigo Jiménez Rímolo (hereinafter "Mr. Jiménez"), Pindeco’s (the Costa Rican pineapple division of Del Monte) General Manager, the person wholly responsible for Del Monte’s pineapple production in Costa Rica and who executed the Agreement on behalf of Del Monte’s predecessor, also testified having discussed the Del Monte-Dole litigation with Mr. Baeza.29 The Respondent did not call Mr. Baeza as a witness in this arbitration, although it submitted an unsworn 10 August 2015 letter from Mr. Baeza addressing issues concerning this arbitration in which Mr. Baeza states that he was unaware of the terms of the Settlement Agreement.30 Because Mr. Baeza has not submitted a written witness statement nor has he been proffered as a witness and, of course, not been subject to cross-examination in the Hearing, the Arbitral Tribunal has no reason to disregard Mr. Jiménez testimony or to assign any probative weight to Mr. Baeza’s letter.
53.
The evidence also shows that Dole was interested in the MD-2 variety as developed by Del Monte since their efforts to obtain MD-2 plants yielding marketable pineapples in Dole’s plants utilizing tissue culture or out of meristems was a failure because of highly mortality rates and mutation problems. These problems produced pineapples which were not growing well, leading to the destruction of 60-70 % of this material.31 Dole started to commercialize MD-2 pineapples in 2000.32 However, it efforts to secure Del Monte’s MD-2 know-how went back as early as 199333.
54.
The Respondent argues that, even before the Dole Settlement, the Claimant’s assertion of exclusive ownership of the MD-2 variety - namely from securing patent protection and exclusive rights over the MD-2 variety that it could assert vis-à-vis third parties -proved to be inexistent or known by Del Monte to be futile because the MD-2 hybrid was already in the public domain. For this reason, the Respondent contends that since the Claimant did not secure a patent on the MD-2 hybrid, the Claimant may not claim exclusive ownership on the hybrid or protect exclusive rights thereon against the general public or INPROTSA as it would be normally entitled to do were the Claimant to hold a patent on the hybrid.
55.
The Respondent also argues that the Claimant cannot vindicate any kind of trade secret protection for the MD-2 variety, since it obviously knew about the dissemination of MD-2 pineapple plants stolen from Del Monte or MD-2 pineapples grown out of such plants or their progeny and sold in the market yet Del Monte failed to pursue any type of legal remedies to protect its trade secrets. According to the Respondent, this is further confirmed by the fact that Del Monte itself was selling MD-2 pineapples in the open market without seeking or obtaining any protection. As the argument goes, the presence of MD-2 pineapples with their crowns in the market or in the public domain allowed third parties to access the MD-2 genetic code, thus rendering it impossible for Del Monte to claim or secure a trade secret on the variety.
56.
Although these facts are true and undisputed, they cut both ways for INPROTSA. It is equally true, as detailed in previous paragraphs of this Final Award, that INPROTSA could not have been ignorant of these very facts when it entered into the Agreement. Consequently, and also because of the Del Monte-Dole Litigation, which was also known to the Respondent, the Arbitral Tribunal finds INPROTSA knew (i) about the broad dissemination of the MD-2 seeds and the widespread cultivation of the MD-2 variety in Costa Rica by growers not controlled by Del Monte, and (ii) that Del Monte's rights in the MD-2 variety were contested, notwithstanding any claim of exclusive proprietary rights the Claimant rightly or wrongly asserted on the MD-2 variety. And, there is no evidence or allegation that Del Monte represented to INPROTSA that Del Monte held a patent or a trademark on the MD-2 hybrid. What is at stake in this arbitration is not whether Del Monte may assert rights in the MD-2 variety against third parties following the Dole Settlement, but whether it may assert its preexisting contractual rights under the Agreement vis-à-vis INPROTSA. It certainly can do so.
57.
The Claimant's view of its proprietary rights in the MD-2 variety and vegetative materials, based on its developmental work applied to the 73-114 hybrid, was clearly expressed in the Complaint filed on 28 March 2000 commencing the Del Monte -Dole Litigation. This complaint set out four counts on that premise: (1) a Lanham Act violation for unfair competition; (2) misappropriation of trade secrets; (3) conversion for wrongful appropriation of vegetative materials; and (4) FDUPTA violations.
58.
The facts asserted by the Claimant in its Complaint as a basis to support these counts34 are as follows:

Facts

5. Through many years of research and development, Del Monte Fresh Produce and its predecessors developed a new variety of pineapple, known as the MD-2 variety; starting in approximately early 1996, Plaintiffs sold this variety to the purchasing public under the "DelMonte Gold®" brand as an "Extra Sweet" pineapple (hereafter "Del Monte Gold Extra Sweet")

6. The "Del Monte Gold Extra Sweet" pineapples quickly became an enormous success. The MD-2 variety of pineapple has many advantages over the varieties previously sold in the United States, including higher vitamin C content, a sweeter taste, more fiber, brighter color, nicer smell and a milder texture. It quickly became, and has remained, the pineapple of choice in this country and throughout the world.

7. At present, the "Del Monte Gold Extra Sweet" brand accounts for approximately 45% of the pineapple market in the United States. The "Del Monte Gold Extra Sweet" brand achieved this substantial market share even though it is sold at a premium price over the competition.

8. The MD-2 variety was tested and developed in Hawaii. Thereafter, Del Monte Fresh Produce sent plant materials of the MD-2 variety to Costa Rica for further study at its nurseries in that country.

9. With further effort, Del Monte Fresh Produce ascertained that the MD-2 variety was well-suited for the Costa Rican climate, and began to multiply or propagate out the number of plants of the MD-2 variety at its plantations in that country, so that it would have enough MD-2 pineapple plants to satisfy the anticipated market for "Del Monte Gold Extra Sweet" pineapples ".

59.
These facts, invoked by the Claimant approximately a year before the execution of the Agreement on 9 May 2001 are the same facts that amply support the Claimant’s "representations" in the Agreement about its proprietary rights in the MD-2 variety and MD- 2 vegetative materials as reflected in the language of clauses Primera and Segunda of the Agreement. Claimant obtained at least an early vindication of its position in the 22 February 2001 U.S. District Court, S.D. Florida decision, which also predates the Agreement. Addressing the Complaint and Dole’s objection to it,35 Judge Alan S. Gold clearly found that Del Monte, on the basis of the facts described in the Complaint (as set forth above), sought "... to protect [Del Monte’s] proprietary interest in the MD-2 variety of pineapple"36, despite the fact that Del Monte did not have a patent. Although, as shown by the Respondent, the Claimant modified its Complaint37 in response to Judge Gold’s ruling for more granular information regarding the facts on which the misappropriation of trade secrets claim was premised, the additional information complemented - but did not change - the description of facts set forth above and invoked by Del Monte to support of all the claims in the Complaint against Dole. Thus, even if deemed "representations", Del Monte had sufficient basis to make "representations" in the Agreement about its exclusive ownership interest in the MD-2 variety.
60.
That the parties to the Del Monte-Dole Litigation finally stipulated on 5 November 2001 to withdraw Del Monte's trade secret misappropriation claims38, or that all claims in such litigation were finally settled by Del Monte and Dole on 12 April 200239 (or even if it were deemed that those claims had doubtful perspectives of success) is irrelevant for purposes of characterizing Del Monte's perception - right or wrong - of its exclusive proprietary rights in the MD-2 variety at the time of entering into the Agreement. It should not be forgotten that, unlike the claims in this arbitration, Del Monte was not asserting contractual rights in the Del Monte-Dole Litigation. Thus, Dole - unlike INPROTSA here - was not subject to contractual conditions like those stipulated in the Agreement. Moreover, as discussed above, the 12 April 2002 Settlement Agreement contained an express clause in which Del Monte: (a) refused to admit or agree or acknowledge that it did not have a proprietary or protectable interest in the MD-2 variety; and (b) indicated that it retained the right to sue persons or entities other than those covered by the Settlement.
61.
From the facts set forth in paras. 42-60 of this Final Award, the Arbitral Tribunal concludes that: (a) Del Monte pioneered the introduction of the MD-2 variety in Costa Rica and developed it through its technical knowledge and know how - with the ultimate result of adapting the MD-2 variety to the Costa Rican environment and successfully cultivating MD-2 pineapple plants yielding pineapples in commercial quantities that found prompt and very significant acceptance in the international consumer market; (b) even if Dole had MD-2 seeds or seedlings, the MD-2 vegetative materials in Dole's possession most likely originated in and were stolen from Del Monte's plantations, and the same is true for other MD-2 pineapples grown in other properties not controlled by Del Monte in Costa Rica40; (c) whatever campaigns to confuse the market may have been undertaken by Del Monte regarding its exclusive rights in the MD-2 variety or Del Monte's own arguments about such exclusive rights as advanced in the Del Monte-Dole litigation (as pleaded by the Respondent), that campaign could not have confused or been detrimentally relied on by INPROTSA prior to entering into the Agreement,41 and (d) there is no evidence of actual conduct by Del Monte toward INPROTSA aimed at fraudulently inducing Respondent to enter into the Agreement or causing it to accept clauses Primera, Segunda, Sétima or Vigésimo Novena thereof.
62.
In fact, the Respondent signed the Agreement and, as the Agreement recites, Del Monte and INPROTSA "...hemos convenido en celebrar un Contrato de Venta de Piña [have agreed to enter into a contract for the sale of pineapples], que se regirá por las siguientes estipulaciones..." [that will be governed by the following stipulations]. In other words, both parties jointly proposed and accepted the Agreement’s stipulations. Therefore, assertions or statements in the Agreement are not "representations" and/or warranties unilaterally proffered by Del Monte. Rather, those stipulations recite facts or conditions presumed and accepted as true by the Parties, both indisputably experienced and sophisticated players in the pineapple business.42 Put simply, these were the stipulations of the deal according to the Parties themselves.43
63.
Also, clause Primera states that Del Monte is the exclusive owner of the MD-2 variety that Del Monte "....ha desarrollado bajo su riesgo y costo en la zona de Buenos Aires de Puntarenas, obteniendo un producto de gran aceptación en el Mercado." which unequivocally shows that the "exclusive ownership" referred to in this sentence, does not depend on a patent on the MD-2 hybrid but on the developmental efforts of Del Monte, at Del Monte's risks and costs, which allowed Del Monte to create a MD-2 pineapple enjoying wide market acceptance. This is indeed consistent with the facts invoked by the Claimant in support of its Complaint in the Dole litigation (reproduced above).
64.
In the same vein, the first sentence of clause Segunda no longer refers to "exclusive" ownership but just to "ownership" of the MD-2 variety, and it is in that sense (en ese sentido) that the Respondent expressly acknowledges that the MD-2 seeds corresponding to that variety belong to Del Monte. Although the expression "exclusive ownership" reappears in the next sentence to the effect of providing that so long as (mientras) Del Monte is the exclusive owner the Respondent undertakes to exclusively sell pineapples to the Claimant, there is no reason to understand that the terms "ownership" or "exclusive ownership" have a different meaning or that a contextual interpretation of these stipulations refers to a proprietary interest other than any interest in the MD-2 variety resulting from Del Monte's time, costs and efforts in developing MD-2 pineapples in quality and quantity permitting their successful commercialization in the international markets. There is no reason to circumscribe the meaning of the term "exclusive" to the kind of exclusivity ensured by a patent. According to the Webster's Third New International Dictionary, "exclusive" means:

"excluding or having the power to exclude (as by preventing entrance or debarring from possession, participation or use)"

Under the Agreement, Del Monte certainly bargained for "the power to exclude" INPROTSA from "possession, participation or use" of the MD-2 variety. So, in this sense, one can say that Del Monte had "exclusive ownership." The Parties could have changed those circumstances by renegotiating clause Segunda at any time when other provisions were renegotiated but they never did so.

65.
Consequently, within the context of the Agreement’s stipulations, "exclusivity" is not limited to the type of use, possession or participation safeguarded by a patent and thus the Agreement may not be read as precluding its application to situations in which exclusivity is premised on unpatented proprietary rights or, as here, contractually stipulated in exchange for the supply of MD-2 seeds at no cost and technical assistance for growing the MD-2 pineapple plant and fruit. Therefore, there is no reason to believe that when the "exclusive ownership" wording was introduced in clause Segunda, Del Monte understood its rights on the MD-2 hybrid or variety as the kind of erga omnes rights that could be asserted pursuant to a patent, or going beyond its proprietary rights on the variety as set forth in its contractual arrangements, which in the case of the Agreement really boil down to: (a) the right to be the exclusive buyer of MD-2 pineapple grown by INPROTSA in its farm; and (b) the right to see the MD-2 vegetative material returned or destroyed at the end of the Agreement, and nothing else or more than that.44 Finally, the absence of a patent does not prevent parties from entering contracts under state law creating respective rights and obligations regarding an unpatented product, including restrictions on the product.45
66.
Further, according to unrebutted testimony referred to above, Mr. Baeza, who executed the Agreement on behalf of INPROTSA, understood and did not object to the exclusive ownership wording in the Agreement, and in discussions with Mr. Jimenez of Del Monte was aware that Del Monte’s ownership of the vegetative materials originated in MD-2 seeds supplied by Del Monte was not conditioned on Del Monte’s exclusive ownership of the variety as against the world, nor did such ownership condition INPROTSA’s obligation to immediately cease production of the MD-2 variety and to return or destroy such vegetative materials upon termination in order to prevent sales of MD-2 pineapple to Del Monte's competitors.46 Mr. Baeza again confirmed his understandings to Alfredo Volio in 2008, when Mr. Volio was evaluating the purchase of INPROTSA.47 Mr. Volio has no interest in this proceeding and his testimony was credible and unrefuted by INPROTSA.48
67.
Nor is INPROTSA interpretation of clause Segunda the only plausible one. The first sentence of the second paragraph of clause Segunda ties INPROTSA's obligation to return or destroy the vegetative materials to the first, third and fourth sentences of the first paragraph of clause Segunda, according to which INPROTSA acknowledges that the MD-2 seeds it receives from Del Monte are Del Monte's property as well as the vegetative material obtained from such seeds. The term Así ("Thus") at the beginning of the first sentence in the second paragraph of clause Segunda can be interpreted to directly link the obligation to return or destroy vegetative material with the supply of MD-2 seeds - at no cost - to INPROTSA, and not with the "exclusive ownership" language of this paragraph regarding the MD-2 hybrid. The term "exclusive" has been used elsewhere in the Agreement without a link to the phrase "exclusive ownership". See e.g., clause Sétima and clause Vigésimo Novena.
68.
It follows from the above that, as part of the bargain under the Agreement, and irrespective of whether the Claimant was right or wrong in asserting exclusive proprietary rights on the MD-2 variety, the Respondent freely accepted the stipulations found in cláusulas Primera and Segunda based on Del Monte's proprietary interest in the MD-2 variety as premised on Del Monte's developmental efforts. Such proprietary interest was not unilaterally asserted by Del Monte in the Agreement as a Del Monte's representation or warranty, but was jointly stipulated by - as indicated above -sophisticated players with good knowledge of the pineapple business. The Respondent cannot blow cold and hot at the same time: enjoy the benefits of the Agreement for 12 years in which it never raised Del Monte's supposed fraudulent conduct, particularly after the Settlement Agreement putting an end to the Del Monte Litigation in 2002 (see para. 49 above), but then seek to liberate itself under Florida law from contractual stipulations it freely and knowingly accepted to be bound by and enforce. 49
69.
Thus, on the basis of the analysis of the text of clauses Primera and Segunda against the backdrop of the facts taken into account when carrying out such analysis (see paras. 41-68 of this Final Award), the Arbitral Tribunal concludes that the Claimant may legitimately vindicate its rights against INPROTSA, and protect its economic and proprietary interest in MD-2 vegetative materials, premised on its long years of investments and development efforts, first in Hawaii and then in Costa Rica, to get to the MD-2 plant producing a pineapple in Costa Rica satisfying consumer preferences.
70.
Ad abundantiorem cautelam, the Arbitral Tribunal deems appropriate to address the Claimant’s allegation that in any case the Respondent’s fraudulent and negligent misrepresentation claims are time barred because they are predicated on alleged misrepresentations that took place in 2001. If correct, this argument also affects Respondent’s FDUPTA violation which is also premised on misrepresentations and its breach of contract claim.
71.
The Claimant relies on statute of limitations provisions in § 95.11(3) Fla. St. (INPROTSA had four years since discovery of the misrepresentation to bring a fraud or FDUPTA claim and five years to bring in a claim for breach of contract). After INPROTSA’s learned of the Dole Settlement Agreement in 2002, the Arbitral Tribunal finds that the Respondent could not ignore that Del Monte’s exclusive ownership of the MD-2 variety was subject to challenge or no longer enforced. Both statute of limitations had long expired by the time the Respondent filed its counterclaims based on fraudulent inducement or breach of contract in this arbitration. The Claimant also correctly points out that Florida’s 12-year statute of repose (§ 95,031 (2) (a)), which started on the date of the Agreement for purposes of INPROTSA’s fraud-based claims, had run out.50
72.
By essentially relying on Allie v. Ionata (503 So.2d 1237, 1239 (Fla. 1987))51 the Respondent contends that a compulsory counterclaim in recoupment permits the recovery of an affirmative judgment even though barred as an independent cause of action by the running of the statute of limitations. The Respondent further relies on Maynard v. Household Fin.Corp.III (861 So. 2d 1204, 1207 (Fla. 2d DCA 2003)52 and Orix Capital Mkts. LLC v. Park Ave Associates (881 So. 2d 646, 650 (Fla. 1st DCA (2004))53 to contend that recoupment claims have been replaced with the compulsory counterclaim. The Respondent asserts that a compulsory counterclaim is one that arises out of the transaction or occurrence that is the subject of the opposing party's claim. Since INPROTSA's defenses and counterclaims arise out of Del Monte's misrepresentations of exclusive ownership of the MD-2 variety in the Agreement (on which Claimant's claims are based), such counterclaims or defenses are compulsory and for that reason not barred by the statute of limitations54.
73.
As pointed out by the Claimant,55 the Allie v. Ionata rationale regarding recoupment and compulsory counterclaims applies to statutes of limitation but not to the statute of repose. According to § 95,031(2) (a) Fla. Stat.: "but in any event an action for fraud under § s. 95.11(3) must be begun within 12 years of the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered". By the date this arbitration was commenced (10 March 2014) or by which INPROTSA advanced its counterclaims and fraudulent misrepresentations defenses for the first time in this arbitration, the 12-year statute of repose period computed from the date of the Agreement (9 May 2001) had long run out. See Hess v. Philip Morris USA, Inc., 175 So.3d 687 (Fla. 2015) (statute of repose for fraud claim runs from the date of the commission of the alleged fraud and there is no tolling).
74.
, Therefore, the Respondent may not prevail on its claim that Del Monte fraudulently induced it to enter into the Agreement. These same limitations periods also render Respondent's FDUPTA and breach of contract counterclaims time barred (including those alleging the invalidity of covenants found in the Agreement's clauses Primera, Segunda, Sétima or Vigésimo Novena), and thus they are rejected without the need of delving into their merits.
75.
Consequently, the Arbitral Tribunal concludes that the Respondent: (a) was not fraudulently induced by Del Monte to enter into the Agreement; and (b) was bound by obligations under clauses Primera, Segunda, Sétima and Vigésimo Novena of the Agreement: (i) to acknowledge that seeds received in their farm exclusively belong to Del Monte; (ii) not to dispose of such seeds or vegetative material "...derivado u obtenido de la plantación a desarrollar " (utilized in the farm) without the previous written authorization of Del Monte; (iii) to produce for and sell exclusively to Del Monte all MD-2 pineapple; and (iv) in case the Agreement comes to an end for any reason, to destroy or return to Del Monte all vegetative material. It should be noted that INPROTSA’s obligations under (iii) and (iv) are also respectively set out in clauses Sétima and Vigésimo Novena as self-standing obligations delinked from the exclusive ownership of the MD-2 hybrid.
76.
The Respondent also claims that because the Respondent was induced to enter into the Agreement on the basis of the Claimant’s misrepresentation regarding exclusive ownership of the MD-2 variety, the Respondent did not enter into a contract with Del Monte’s competitor Dole (United Fruit Company of Costa Rica) for the supply of MD-2 variety seeds after termination of an existing contract between the latter and INPROTSA for the supply of Champaka pineapple. But on 19 July 2000, Dole -Standard Fruit Company of Costa Rica communicated its notice of termination of this contract, since the Champaka pineapple variety was no longer enjoying end consumer acceptance. Pursuant to this contract’s terms and conditions, termination took effect 450 calendar days after the date of termination on 19 July 2000.56 In the interim, INPROTSA and Dole initiated negotiations for a new contract essentially for the production of MD-2 pineapples by INPROTSA for their sale to Dole.
77.
The Claimant underscores that INPROTSA chose Del Monte over Dole due to the advantages in the Agreement, including that the Claimant would be: (i) assisting INPROTSA in expanding its plantation from 296 hectares to 640 hectares (clause Primera), (ii) supplying for free all the MD-2 seeds the Respondent needed to grow pineapple in its field as well the MD-2 seed (clause Segunda); (iii) providing its technical assistance for the cultivation of the MD-2 pineapple (clause Décima); (iv) undertaking to buy all the Champaka variety pineapple existing in the Respondent’s property (a variety that did no longer enjoyed market acceptance) (clause Undécima); and (v) agreeing to a 12-year non-cancellable contract (clause Décimocuarta). Dole was not willing to buy all of the the Respondent’s Champaka produce (it was willing to buy Champaka pineapples on a spot basis and in quantities depending on certain variable parameters) nor provide the MD-2 seeds for free or in the quantities required by the Respondent. Dole’s proposed contract was for 6 years cancellable upon a six-month advance notice.
78.
While it is true that Dole offered a higher price for the pineapple that would be produced out of the agreement it was proposing to INPROTSA than the one finally accepted by INPROTSA in its deal with Del Monte under the Agreement, and that Dole allowed INPROTSA to sell pineapples to third parties, there were strong commercial and technical reasons prompting INPROTSA to accept the Del Monte lower price, as reflected in an INPROTSA internal note57:

"Por otro lado Del Monte nos ofrece un precio notoriamente inferior, pero nos tomaría prácticamente todos los tamaños y las segundas clases, nos propocionaria de inmediato, y sin costo toda la semilla de variedad amarilla de la que seguiría siendo propietaria,. Dole nos ofrece suministrarnos básicamente material para producirla (meristemos) que debemos de pagarles con la semilla que posteriormente produzcamos o pagadera cuando se inicie la cosecha producto de ese material con un plazo extendido y sin intereses"

79.
In addition to the fact that Del Monte was supplying the MD-2 seed for free, the supply of MD-2 seeds by Dole depended on the availability of this seed from a third-party property identified as "Corsicana". The price and other terms for the sale of Corsicana MD-2 seed were subject to further negotiation with Dole or Standard Fruit participation, and would require payment in advance for the seed58.
80.
The Respondent also found it unacceptable that, unlike its former contract with Dole, Dole was now refusing to acquire the entire INPROTSA's Champaka pineapple produce. Indeed, in deciding whether or not it would contract with Dole, INPROTSA considered it essential to obtain from Dole specific written confirmation of volumes, price and sizes of Champaka pineapples that would be bought by Dole under a new contract with INPROTSA.59
81.
It is also true that in an internal INPROTSA memorandum comparatively evaluating the pros and cons of entering into a contract for the supply of MD-2 seeds with either Dole or Del Monte there is a reference to the Del Monte-Dole Litigation (para. 50 of this Final Award). However, that reference, not made by Del Monte, does not constitute any representation nor does it support any supposed representation by Del Monte that could have the effect of inducing INPROTSA not to contract with Dole and instead enter into the Agreement. Nor can that reference be read as a forecast of the outcome of such litigation.
82.
In any event, after considering the different factors taken into account by INPROTSA when deciding whether to contract with Del Monte or with Dole, there is no evidence that a potential Del Monte success in the Del Monte-Dole Litigation was determinative of INPROTSA's decision not to contract with Dole and to enter into the Agreement instead. Under Florida law, the elements constituting a fraud claim are: (1) a false statement concerning a material fact; (2) knowledge by the person making the statement that the representation is false; (3) the intent by the person making the statement that the representation that the representation will induce another to act on it; and (4) reliance on the representation to the injury of the other party60. There is no proof showing that Del Monte's conduct satisfied each of these requirements and thus no proof that INPROTSA's decision to contract with Del Monte instead of Dole was caused by any conduct of Del Monte.
83.
In sum, the Claimant did not fraudulently induce the Respondent to enter into the Agreement rather than a contract with Dole. Consequently, having determined in the previous conclusion of this Final Award that Del Monte did not fraudulently induce INPROTSA to accept the Agreement's clauses, including its clauses Primera, Segunda, Sétima and Vigésimo Novena, the Arbitral Tribunal finds that these clauses are valid and enforceable. By not complying with them, either because the Respondent has not abided by its obligations to exclusively sell pineapples to the Claimant or Respondent is in breach of the Agreement.

B. Remedies I: Specific Performance

84.
The Claimant seeks specific performance of the Respondent's obligation to destroy or return the MD-2 vegetative materials in INPROTSA's farm. Clause Vigésimo novena of the Agreement expressly vests Del Monte with the right to obtain the specific performance of INPROTSA's obligations under the Agreement including, without limitation, its clause Segunda. There is no doubt then that the Claimant is not only legally, but also contractually, entitled to this remedy. The Arbitral Tribunal finds that there is no other adequate remedy at law to make the Claimant whole, and that "justice" requires it"61. Further, to invoke specific performance, the complaint must prove the contract "...by competent and satisfactory evidence which is clear, definite and certain.." and must have shown that "it has performed under the agreement"62. The Claimant has properly satisfied both tests. Therefore, the Arbitral Tribunal concludes that the requirements under Florida law to grant specific performance have been met, and that the Claimant is entitled to specific performance of the Respondent's obligations under clause Segunda.
85.
The Arbitral Tribunal is mindful of the alternative remedy proposed by the Claimant and set forth in para. 27 (iv) of this Final Award. The above conclusion does not prevent the Respondent from opting for such alternative remedy. For the sake of clarity and to avoid any confusion regarding the enforceability of this Final Award (Article 41 of the ICC Rules), the Arbitral Tribunal shall grant 30 calendar days after the notification of this Final Award for the Respondent to elect whether it will destroy the MD-2 variety on its farm or accept the offer to return all MD-2 variety as proposed by the Claimant as an alternative remedy (this Final Award's para.27 (iv)).
86.
Nevertheless, the analysis or conclusions do not end here since the Respondent also claims that the destroy-or-return covenant is not enforceable because all the MD-2 plants were destroyed in 2011 and because such covenants would infringe the applicable law. Further, it is necessary to establish with precision the scope of the Respondent's obligation to destroy the MD-2 vegetative materials on its farm, were it to elect this alternative.
87.
The Respondent contends that: (a) any method utilized to destroy the MD-2 vegetative materials would run against Costa Rican environmental protection legislation; and (b) INPROTSA no longer has the duty to return or destroy vegetative materials because they were all destroyed before 2011, i.e., before the Agreement came to an end.
88.
As to (a), the Respondent must fail in its contention. During the Hearing, Mr. Alfredo Volio, a former Costa Rica's Minister of Agriculture, testified that there are methods to destroy vegetative materials that are entirely compatible with Costa Rican environmental law. For example, if the procedure chosen is burning with fire, only a permit from the Costa Rican Agricultural Ministry is required. However, if the procedure is to use tractor mulching to incorporate the vegetative materials into the ground, no such permit is needed.63 The Respondent did not produce evidence refuting Mr. Volio's testimony.
89.
As to (b), the Claimant has persuasively demonstrated (and the record shows) that pineapple plants reproduce themselves asexually, i.e, by vegetative reproduction operated by planting in the soil slips or suckers or crowns grown from the mother plant (see para. 30 of this Final Award). Once the plants so obtained in turn grow slips, suckers or crowns, they are planted in the soil to grow new pineapple plants. This process or cycle may be continued indefinitely (by planting slips, suckers or crowns thus obtained to engender new plants) so that new plant generations and pineapple fruit harvested from those plants is a progeny coming from the MD-2 seeds or seedlings originally provided to INPROTSA by Del Monte under the Agreement. Although pineapple plants are destroyed after completing their full life cycle of two, maybe three years, this does not mean that seedlings obtained from those plants are not planted in the soil to grow new pineapple plants.
90.
Surely, the Parties knowingly took this circumstance into account when entering into a 12-year contract at the end of which the issue of destroying the vegetative materials would normally arise. It goes against common sense to suggest, as INPROTSA does, that when pineapple plants are destroyed the seedlings originated in them are not then planted in order to engender new pineapple plants. Absent any evidence that the MD-2 descendant plants, seeds and seedlings in INPROTSA’s farm were actually and completely destroyed, as contended by the Respondent64, it can only be concluded that there still exists MD-2 vegetative materials in the farm which originated in MD-2 seeds or seedlings coming from Del Monte and therefore the obligation under clause Segunda of the Agreement to return or destroy them is and remains enforceable. As mentioned above, clause Vigésimo Novena unequivocally allows Del Monte to resort to specific performance to obtain the enforcement in kind of the stipulations set forth in clause Segunda.
91.
According to the first sentence of clause Segunda, because of the Respondent’s acknowledgement that the "MD-2 pineapple variety" is the exclusive property of Del Monte, the Respondent also acknowledged that all the seeds of this variety used in INPROTSA’s farm belong to Del Monte. However, the last two sentences of this clause and its last paragraph only refer to the ownership of the seed supplied by Del Monte. It is noteworthy underlining that, as the expression "En este sentido" (in this sense) at the beginning of the second paragraph of this clause indicates, both the obligation to exclusively sell pineapple to Del Monte and to destroy or return the vegetative material at the end of the Agreement are linked only to the simple fact that Del Monte supplied its MD-2 seed to INPROTSA. This differentiation is not without consequence since the ownership and destruction or return of the MD-2 seeds is thus not premised on the exclusive ownership of the MD-2 variety by Del Monte.
92.
At the Hearing, Mr. Jiménez, who executed the Agreement on behalf of one of Del Monte’s predecessors as party to the Agreement, testified as follows65:

Q. What, if anything, did that agreement have to do with exclusive ownership of the MD-2 variety?

"It is that these are two different things. One is the ownership of the variety, per se, and something different is the ownership of a plant material or the seedlings of a pineapple that Del Monte delivered to the producer, and the producer clearly accepts that this is Del Monte's property, this was given to them for free"

(...)

Yes. The spirit of that clause is clear, that is to say that Del Monte keeps the ownership of those plants. And in that contract clause, it is clearly indicated that Del Monte requires the exclusive sale of said pineapple, and that if at any time during the valid term of the contract, or at the time the term ends, the producer accepts that it should immediately stop, yes, stop the production of this variety, and it should either destroy it or return it to the company"

Q. Mr Jimenez, was that an important provision from Del Monte’s perspective?

"A. Well, first of all, Del Monte delivered the great asset, millions of dollars in plants. And Del Monte demanded, logically, that from those plants, that had at no cost turned over and thusly accepted by the producer, yes, that the competition would not benefit in the future from those plants. They were Del Monte's plants. They are Del Monte's plants"

(....)

"A. I repeat again, the substantial aspect of this contract, in this contract it was specifically stated that Del Monte, in 2001, assured that it owned this property, and we have already discussed that; but that did not condition that the plant material, the seedlings that Del Monte gave INPROTSA, that asset through which Del Monte was going to produce pineapples, was the property of Del Monte. Those are two independent things"

93.
It should first be noted that since the MD-2 seeds provided by Del Monte to INPROTSA through the years are movable and fungible assets, INPROTSA necessarily acquired title on such seeds. For that reason, the Claimant cannot assert ownership rights (rights in rem) on such seeds or their progeny. However, the Claimant is entitled to enforce its contractual (or in personam) rights under clause Segunda premised on the Claimant’s entitlement to the MD-2 seeds it provided for free to the Respondent, as acknowledged by the Respondent when becoming party to the Agreement and accepting its stipulations, including those found in the said clause Segunda. It is the enforcement of such contractual rights, not any rights depending on the ownership of the MD-2 variety that is pursued by the Claimant and is at stake in this arbitration.
94.
However, not all the MD-2 seeds or vegetative materials existing in INPROTSA’s farm when the Agreement was terminated were provided by Del Monte or are descendants from such seeds. It is undisputed that as from 2007 Del Monte ceased to supply MD-2 seeds to Del Monte.66 The evidence shows that between 2006 and 2008 a company then independent from Del Monte, Frutex, supplied important quantities of MD-2 seeds to INPROTSA.67 The MD-2 vegetative materials being a fungible chattel, there is no way to differentiate the plants or seedlings in INPROTSA’s farm originated in seeds provided by Del Monte from those acquired from other sources by inspecting the plantation. Del Monte should only be able to exercise its specific performance rights in connection with MD-2 vegetative materials that can be identified as originated in MD-2 seeds provided by Del Monte.
95.
Nevertheless, the evidence shows that the Frutex seeds were loaned to INPROTSA by Frutex (a neighboring farm), planted in INPROTSA's farm (since INPROTSA had available land and was in need of MD-2 seeds), and once harvested, the plants were destroyed and all vegetative materials were returned to Frutex.68 For this reason, no Frutex originated MD-2 vegetative materials existed at the moment of the Agreement's termination. The only supplier of MD-2 seeds to INPROTSA other than Frutex or Del Monte was Pinales de Santa Clara, a Del Monte pineapple grower, but the proportion of MD-2 seeds supplied by this grower to INPROTSA was considerably small.69 There is also undisputed testimony that: (i) every single seed planted in INPROTSA's farm in 2001-2003 came from MD-2 seeds supplied by Del Monte to INPROTSA70; and (ii) 93% of the vegetative materials in INPROTSA's farm and existing in 2012 originated in Del Monte's MD-2 seeds or seedlings supplied by Del Monte to INPROTSA. Although there is testimony that the proportion of MD-2 vegetative materials in INPROTSA's farm is 95 %,71 there is also evidence that such proportion would equal 93%.72 The Arbitral Tribunal observes that because this latter percentage is the one applied by the Claimant to calculate its claims for damages for breach of contract incidental to the Claimant's specific performance claim,73 the 93% percentage is the one to be used in this proceeding.
96.
Consequently, the Claimant is entitled to the specific performance of the Respondent's obligation to destroy MD-2 vegetative materials in INPROTSA's farm equal to (and not in excess of) 93% of all the MD-2 vegetative materials existing on INPROTSA's farm.74

C. Remedies II: Damages And Other Remedies Sought by the Claimant

97.
The Claimant seeks damages under different theories.
98.
The Claimant alleges that by not destroying or not returning the MD-2 vegetative materials at the end of the Agreement, the Respondent committed the tort of conversion75.
99.
For the tort of conversion to exist, Florida law requires: (i) an act of dominion wrongfully asserted; (ii) over another's property; and (iii) inconsistent with the ownership over such property of the party asserting the existence of this tort76. Nevertheless, title to the MD-2 seeds, a fungible movable, was conveyed to INPROTSA when it received for free the MD-2 seeds from Del Monte. Although Del Monte may vindicate a contractual right to have the MD-2 seeds destroyed, premised on Del Monte's proprietary interest in the MD-2 seeds, the real source of INPROTSA's obligation mirroring such right is a contractual stipulation governed by Florida law according to which INPROTSA acknowledged that the source of such right is the developmental work carried out by Del Monte in respect of the MD-2 hybrid. As seen above, it is INPROTSA and not Del Monte who owns, i.e., holds ownership rights in rem, on the MD-2 seeds and vegetative materials in INPROTSA's farm.
100.
Under Florida law, conversion is a tort independent of contractual undertakings,77 and in the instant case, the Arbitral Tribunal is unable to conclude, because no persuasive argument or proof has been proffered to show that INPROTSA did not acquire title to the seeds when delivered to it by Del Monte pursuant to the Agreement (or to the progeny of such seeds), that INPROTSA converted MD-2 seeds and vegetative materials existing in its farm which it already owns. Consequently, the Arbitral Tribunal may not conclude either that Respondent's conduct consisting of not returning or not destroying the MD-2 vegetative materials is conduct other than or going beyond a breach of the Agreement. Therefore, the Claimant may not prevail on its conversion claim.
101.
Precisely because the Respondent did not return or destroy the MD-2 vegetative materials in INPROTSA's farm when the Agreement came to an end, the Claimant also asserts a breach of contract claim. In parallel, the Claimant seeks the specific performance of the Respondent’s obligation to destroy those materials under clause Segunda. Undoubtedly, as already found by the Arbitral Tribunal, the Claimant is entitled to specific performance of INPROTSA’s obligations under such clause.
102.
Florida law allows relief incidental to specific performance which will return the parties to the status quo at the time of breach.78 In this case, the breach consists of: (a) the failure to destroy or return MD-2 vegetative materials at the end of the Agreement; and (b) continuing to sell MD-2 pineapple obtained from MD-2 vegetative materials (or use or dispose of such vegetative materials) that should have been, but were not, destroyed or returned upon termination of the Agreement.
103.
After automatic termination of the Agreement on 8 May 2013 pursuant to the Agreement’s clause Décimo Cuarta, a period of negotiations ensued between the Parties to see if the Agreement would be renewed. This negotiation process was unsuccessful and was terminated by letter of INPROTSA to Del Monte dated 6 December 2013.79 The last sales of MD-2 pineapples by INPROTSA to Del Monte under the Agreement took place on 15 December 2013 following Del Monte’s cancellation of any pending purchases of INPROTSA’s pineapple under the Agreement by communication of 10 December 2015.80 The Claimant computes damages for breach of the Agreement’s clauses Segunda, Sétima and Vigésimo Novena as from the 15 December 2015 date, by which the Respondent failed to fulfil its obligations under such clauses.
104.
The damages sought by the Claimant for breach of contract must be considered together with the remedy of specific performance of the Respondent’s obligation under clause Segunda. Both operate in tandem to provide full reparation to the Claimant for the grievance caused by the Respondent’s breach of clauses Segunda, Sétima and Vigésimo Novena.
105.
On the basis of Appendix 3 of the Respondent’s expert Garrett W. Rush’s First Expert Report, the Claimant’s expert Patrick F. Gannon indicates that during 2014 INPROTSA sold crownless MD-2 pineapples to non-Del Monte parties for US$ 28,100,000.00 that, according to Mr. Gannon’s report, represents approximately a US$ 500,566.00 weekly sum that Del Monte is entitled to recover as relief incidental to specific performance. Such amount was later reduced to US$ 499,350.00 per week.81 The Claimant claims as breach of contract the payment of a sum obtained by aggregating this weekly amount as of 15 December 2013 through the date of this Final Award. By 15 January 2015 (date of the Claimant’s Post-hearing Submission), this amount totaled US$ 54,429,150.00.
106.
The Arbitral Tribunal observes that calculating Del Monte’s damages for the sale of MD-2 pineapples and other MD-2 vegetable materials which should have been otherwise destroyed or returned to Del Monte by looking at the money made by INPROTSA out of sales of pineapple to third parties is justified because through such sales INPROTSA was intentionally defeating the main reason underlying the Agreement’s clauses Segunda and Sétima, namely, to prevent the utilization by INPROTSA of MD-2 vegetative materials developed by Del Monte to produce pineapple that competes with Del Monte’s other MD-2 pineapples in the market or to sell MD-2 pineapples that originated from MD-2 vegetative material that is the progeny of MD-2 seeds supplied by Del Monte. If sold in the market without its authorization, it is natural to consider that Del Monte was entitled to the revenue of such sales as if Del Monte itself had sold the MD-2 pineapple or vegetative materials itself.
107.
However, although the record shows the monies made by INPROTSA out of INPROTSA’s MD-2 pineapple sales for 2014 and established by Mr. Gannon’s expert report82, no such information has been provided for INPROTSA’s sales during year 2015 or specifically addressed by expert evidence (e.g., by an addendum to Mr. Gannon’s expert report). Nor has INPROTSA provided information regarding the expenses incurred to generate such sales. Since such data may change year after year, automatically projecting 2014 sales data to establish the sums eventually owing in future years may be too speculative. On the other hand, it also may be validly argued, for damage compensation purposes, that the Claimant should only be entitled to the disgorgement of profit made by INPROTSA from its MD-2 pineapple sales, and not an amount calculated on the basis of INPROTSA’s gross sales revenue. Although calculation of INPROTSA’s net profit out of MD-2 pineapple sales was not possible because INPROTSA refused to provide such information in discovery,83 establishing the amount of compensation for breach of contract by projecting into the future INPROTSA’s 2014 gross revenue figures is both unreasonable and excessive. Finally, any calculation of compensation for breach of clauses Segunda, Sétima and Vigésimo Novena in regard to the MD-2 vegetative materials existing in INPROTSA’s farm should take into account that 93 % of such materials originate in Del Monte, and not more than that.
108.
Under Florida law, courts and arbitrators may fashion an alternative remedy that fairly compensates a party from its loss.84 Disgorgement or restitution to Del Monte is appropriate because it bargained for this benefit by requiring that INPROTSA return or destroy all vegetative materials following termination of the Agreement. Having chosen not to destroy, INPROTSA must now account for the monies it improperly received. See e.g. Coppola Enterprises, Inc. v. Alfone, 531 So.2d 1334 (Fla. 1988) (affirming disgorgement in breach of contract action). Del Monte's expert, Patrick Gannon, analyzed the financial information provided by INPROTSA regarding sales of the MD-2 variety and concluded that this information was likely understated thus making his damages estimates conservative. See Gannon Report at p. 56.
109.
Pursuant to such authority vested in the Arbitral Tribunal under Florida law, and after taking into account the circumstances and findings set forth above, and the evidence of damages presented, the Arbitral Tribunal concludes that Del Monte is entitled to compensation for breach of contract (clause Segunda) amounting to US$ 26,133,000.00 (93% of US$ 28,100,000.00). The Claimant seeks pre-award and post-award interest on damages amounts assessed by the Arbitral Tribunal.85 The Claimant shall be entitled to pre- and post-award interest on this principal amount pursuant to Florida law at an annual simple rate of 4.75% from 15 December 2013 (see para. 103 above) until full payment of such principal amount to Del Monte.86
110.
The Claimant also seeks a permanent injunction from the Arbitral Tribunal ordering the Respondent not to sell or otherwise dispose to third parties MD-2 pineapples or vegetative materials.
111.
The Arbitral Tribunal considers that in view of the express terms of clauses Segunda, Sétima and Vigésimo Novena of the Agreement, the Claimant is entitled to this remedy. As long as the Respondent shall not have complied with its obligation to return or destroy the MD-2 vegetative materials in its farm originated in MD-2 seeds supplied by the Claimant, the Respondent is enjoined from selling and shall not be allowed to sell MD-2 pineapples to third parties except for MD-2 pineapples or vegetative materials not exceeding 7% of each of INPROTSA's pineapple harvest.87

D. INPROTSAS’ Counterclaims.

112.
Because of the findings and conclusions set forth in this Final Award's sections A, B, and C above, the Claimant's breach of contract and FDUPTA's counterclaims, which are premised on the Respondent's fraud or misrepresentations allegations, are rejected. Such counterclaims are the following: (i) fraud in the inducement; (ii) breach of contract; (iii) fraudulent misrepresentation; (iv) negligent misrepresentation; and (v) violation of FDUPTA (Florida's Deceptive and Unfair Trade Practices Act). The Respondent is no longer pursuing its defamation counterclaim88.
113.
The Respondent also claims that the Claimant tortiously interfered with the Respondent's business relationships89. This claim is premised on a number of letters sent in 2014 to different third parties who were purchasing INPROTSA's MD-2 pineapples to deter them from buying MD-2 pineapples from INPROTSA in violation of the Agreement.
114.
Relying on Florida law,90 the Claimant contends that since by sending those letters it was protecting its own established economic and contractual interests, the Respondent may not succeed in its tortious interference counterclaim91. Further, the Claimant indicates that the Respondent has not invoked nor intended to prove any pecuniary damages it would have suffered as a result of the alleged Claimant’s tortious conduct, has admitted not having suffered monetary damages resulting from such conduct and has confirmed that it is merely seeking injunctive relief in connection with the tortious interference claim.92 The Claimant further points out that under Florida law, to be entitled to injunctive relief, plaintiff must show, inter alia, irreparable harm,93 a requirement not proven to have been satisfied should the Respondent only seek injunctive relief and not pecuniary redress.
115.
The Arbitral Tribunal agrees with the facts and Florida law references just described as invoked by the Claimant to refute the Respondent’s tortious interference counterclaim and, accordingly, this claim is rejected. To the extent the Respondent asserts FDUPTA claims on the basis of the above facts and such claims are not time barred, such FDUPTA claims are also rejected.

V. Legal Fees and Costs.

116.
Pursuant to Article 37 (1) of the ICC Rules, in its session of 26 May 2016, the ICC Court fixed the costs of the arbitration at US$ 1,300,00.00 (this amount, which was paid in equal US$ 650,000.0 shares by the Parties, includes fees and expenses of the Arbitral Tribunal and the ICC administrative expenses).As indicated above, on 22 April 2016 the Parties submitted their respective statements of legal representation costs and fees. Such statements showed total amounts which included both each Party’s legal representation legal representation and defense fees and costs and their respective share in the payment of the costs of the arbitration set forth by the ICC. In the case of the Claimant, the aggregate of such costs totaled US$ 3,157,440.54, while in the case of the Respondent, such costs in the aggregate totaled US$ 3,562, 858.07. Therefore, in the case of the Claimant, its legal representation and defense costs amount to US$ 2,507,440.54 (US$ 3,157,440.54 - US$ 650,000.00), and in the case of the Respondent, such costs amount to US$ 2,912,858.07 (US$ 3,562,858.07 - US$ 650,000.00).
117.
The Arbitral Tribunal observes that, by agreeing that this arbitration is governed by the ICC Rules, the Parties also accepted to be bound by its Article 37 (3) (4) and (5), according to which it is for the Arbitral Tribunal to take any decisions on costs other than those taken by the ICC Court itself. In making such determination the Arbitral Tribunal is exclusively guided by the ICC Rules without being bound by national laws.
118.
The Arbitral Tribunal further observes that the Claimant has prevailed on substantially all its claims and defenses to counterclaims, and that the Respondent has not prevailed on almost any of its defenses or counterclaims. Pursuant to discretion vested in it under Articles 37 (3) (4) and (5) of the ICC Rules and clause 19 of the Agreement, the Arbitral Tribunal decides that the Respondent shall bear and pay to the Claimant all the Claimant’s legal representation and defense costs and fees.
119.
It is also the task of the Arbitral Tribunal, in use of the discretion vested in it under the said provisions of the ICC Rules, to determine whether the statement of costs and fees of the Claimant is reasonable or not. In determining such fees and costs, and in accordance with international arbitration practices, unless the Arbitral Tribunal would find prima facie that the stated fees and costs are exorbitant or disproportionate, or that they are not accompanied by satisfactory explanations, the Arbitral Tribunal shall not deem it necessary to request further documentary support. In this case, having regard to the complexity of the case, the professional work done and the fact that the total amounts stated by both Parties as their legal representation and defense fees and costs are very similar, the Arbitral Tribunal is satisfied that the Claimant’s statements of such fees and costs are proportionate, not exorbitant and sufficiently substantiated. After deducting from the total amount set forth in the Claimant’s costs and fees statement the sum of US$ 650,000.00 corresponding to advances to the ICC (which are dealt with separately), the Claimant’s legal representation fees and costs amount to US$ 2,507,440.54, which shall be paid by the Respondent to the Claimant.
120.
For the same reasons set forth in paragraph 118 above, the Respondent shall bear 100% of the costs of the arbitration fixed by the ICC Court and consequently shall reimburse to the Respondent the sum of US$ 650,000.00 (Article 37(1) of the ICC Rules), that was paid by the Claimant to the ICC; and (c) the Claimant shall bear its own arbitral costs and its own legal representation costs and fees.
121.
Co-arbitrator Alejandro Ogarrio Ramírez España is dissenting according to his separate note of dissent.

VI. Decision

122.
On the basis of the above findings, determinations and conclusions, the Arbitral Tribunal DECIDES, by majority, as follows94:

(i) to reject: (1) all the Respondent’s defenses to the Claimant’s claims; and (2) all the Respondent’s counterclaims;

(ii) to declare that the Agreement’s clauses Primera, Segunda, Sétima and Vigésimo Novena are valid and enforceable under their own terms;

(iii) to grant in favor of the Claimant and against the Respondent the remedy of specific performance regarding the Respondent’s obligations in clauses Segunda, Sétima and Vigésimo Novena including, without limitation, the Respondent’s obligation to return or destroy 93% of the MD-2 vegetative materials in the Respondent’s farm, provided, however, that :

(a) not later than 30 (thirty days) after the date this Final Award shall have been notified to the Respondent (this Final Award para.85; Article 41 of the ICC Rules), the Respondent shall notify Claimant in writing, with copy to the Arbitral Tribunal, whether it will accept the Claimant’s offer to return all MD-2 variety, as set forth in this Final Award (para. 27 (iv)), in order to avoid the immediate destruction of the Del Monte MD-2 pineapples, seeds, seedlings and plants growing on INPROTSA’s plantation (Del Monte vegetative materials); and

(b) the scope and limits of the Respondent’s right to sell MD-2 pineapples or vegetative materials to third parties shall be governed by the following subparagraph (iv);

(iv) to permanently enjoin the Respondent from selling MD-2 pineapples to third parties for as long as the Respondent shall not have fully complied with its obligation to destroy or return the MD-2 vegetative materials in its farm originated in MD-2 seeds supplied by the Claimant as provided in this Final Award, with the understanding, however, that while full compliance by the Respondent of the said obligation shall be pending, the Respondent is allowed to sell MD-2 pineapples to third parties in amounts not exceeding 7% of each INPROTSA’s MD-2 pineapple harvest;

(v) the Respondent shall pay the Claimant damages for the breach of the Agreement in the sum of US$ 26,133,000.00 plus pre -award and post-award interest on this principal amount from 15 December 2013 at the simple annual interest rate of 4.75% until satisfaction of the entire award is made to Del Monte for said principal amount plus interest;

(vi) the Respondent shall bear and pay to the Claimant: (a) the sum of US$ 650,000.00 equal to half of the arbitral costs fixed by the ICC Court in the sum of US$ 1,300,000.00 (Article 37 (1) of the ICC Rules); and (b) the sum of US$ 2,507,440.54 equal to the Claimant’s legal representation costs and fees (Article 37(3) (4) and (5) of the ICC Rules); and

(vii) each and any claim or counterclaim or request or remedy applied for in this arbitration not granted in this paragraph 122 is hereby rejected or has become moot.

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