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Addendum

DEFINED TERMS

m Paragraphs)
§ (§) Section (s)
P (P). Pages)
Response to the Request Counter-Memorial to the Request for Arbitration submitted by the Respondent on May 28, 2018
Court International Court of Arbitration of the International Chamber of Commerce
Dominicana Renovables, Company, Concessionaire or Claimant Dominicana Renovables, SL
State or Respondent The sovereign State of the Dominican Republic
Award Final Award rendered in Case 23364 / JPA dated January 20, 2021
Opposition to the Request for Correction or Opposition Opposition to the Correction Request presented by Dominicana Renovables, SL dated March 5, 2021
La Isabela Wind Farm, Wind Farm, Park, or Project Renewable energy project to be developed by Dominicana Renovables in the Province of Puerto Plata, Dominican Republic, authorized by the Dominican State through the Definitive Concession granted on January 4, 2013
Parties Dominicana Renovables, SL and the Dominican Republic jointly
Regulation Rules of Arbitration of the International Chamber of Commerce effective as of March 1, 2017
Secretariat Secretariat of the International Court of Arbitration of the International Chamber of Commerce
Request for Arbitration Request for Arbitration presented by Dominicana Renovables, SL dated January 16, 2018
Request for Correction of the Award or Request for Correction Request for Correction to the Award presented by the Dominican Republic, dated February 22, 2021

Note: The terms with an initial capital letter that are not defined in this section or in the text herein, will have the meaning assigned to them in the Award issued on January 20, 2021.

I. THE PARTIES

1.
In this Addendum the Claimant and the Respondents will be referred to hereinafter jointly as the "Parties" and individually as indicated below:

A. Claimant

2.
The Claimant is DOMINICANA RENOVABLES, SL (hereinafter "Dominicana Renovables", "Company", "Concessionaire" or the "Claimant"), a company incorporated under the laws of the Kingdom of Spain, duly registered in the Dominican Republic as a foreign company, with offices at Calle Magallanes, number 30, lera. Derecha, Madrid, Spain; and at Calle el Cayao 11, 10125, Santo Domingo Dominican Republic.
3.
The legal representation of Dominicana Renovables is performed by:

Francisco A. Rodriguez
Luis A. Pérez
Rebeca E. Mosquera
AKERMAN LLP
Three Brickell City Centre
98 Southeast Seventh Street, Suite 1100
Miami, Florida 33131-1714
United States
francisco.rodriguez@akerman.com
luis.perez@akerman.com
rebeca.mosquera@akerman.com

Luis Soto
SOTO ABOGADOS
Calle C (El Cayao) No. 11
Ensanche Serrallés
Santo Domingo, Dominican Republic
luis@sotolaw.com

B. Respondent

4.
The Respondent is the Dominican Republic, a sovereign State (hereinafter the "State" or the "Respondent").
5.
The State is represented in this arbitration by:

Antoliano Peralta
Noelia Rivera
Nathalie Hernandez
Sara Patnella
Legal Consultant to the Executive Branch
Legal Consultancy of the Executive Branch (CJPE)
National Palace, Avenida México esq. Dr. Delgado
Gascue, Santo Domingo DN
Dominican Republic
antolianoperalta@consultoria.gov.do
noeliarivera@consultoria.gov.do
nhernandez@consultoria.gov.do
spatnella@consultoria.gov.do

Eduardo Silva Romero
Catalina Echeverri Gallego
DECHERT (PARIS) LLP
32, rue de Monceau
75008 Paris
France
eduardo.silvaromero@dechert.com
catalina.echeverrigallego@dechert.com

Juan Felipe Merizalde
DECHERT LLP
1900 K Street, NW
2006 Washington DC
United States
juanfelipe.merizalde@dechert.com
alldominicanarenovables@dechert.com

Alvaro Galindo
114 Franklin St.
Alexandria
Virginia 22314
United States
ahg5@georgetown.edu

II. THE ARBITRAL COURT

6.
In the Request for Arbitration, the Claimant notified the Court of the appointment of Mr. Oscar M. Garibaldi as arbitrator.1 Mr. Garibaldi accepted his appointment, which was confirmed by the Secretary General of the Court on June 19, 2018. The contact details for Mr. Garibaldi are the following:

Oscar M. Garibaldi

809 Wincrest Place

Great Falls, Virginia 22066

United States

ogaribaldi@garibaldiarbitrator.com

7.
The Respondent, in the Response to the Request, appointed Professor Juan Pablo Cárdenas Mejia as arbitrator.2 Additionally, the Dominican Government proposed to the Claimant to modify the method for appointing the President of the Tribunal, provided for in the arbitration agreement contained in the Final Concession Contract.3 The Respondent suggested that the President of the Tribunal be appointed by the Co-arbitrators appointed by the Parties.
8.
Mr. Juan Pablo Cárdenas Mejia accepted his appointment, which was confirmed by the Secretary General of the Court on June 19, 2018. The contact information for Mr. Cárdenas Mejia for the purposes of this arbitration is as follows:

Juan Pablo Cardenas Mejia

Avenida Calle 72 No. 6-30 Floor 11

Bogota, D.C.

Colombia

jpcm2001@yahoo.com

9.
The Claimant accepted the proposal made by the Respondent for the appointment of the President of the Tribunal. Consequently, the Co-arbitrators jointly appointed Mr. Stanimir A. Alexandrov as third arbitrator and President of the Tribunal, an appointment that was confirmed on July 27, 2018 by the Secretary General of the Court. The contact information for Mr. Alexandrov is as follows:

Stanimir A. Alexandrov

STANIMIR A. ALEXANDROV PLLC

1501 K Street NW

Suite C-072

Washington D.C., 20005

United States

salexandrov@alexandrovlaw.com

III. PROCEDURAL BACKGROUND

10.
On December 15, 2020, the Court approved the draft award submitted for its consideration by the Tribunal.4
11.

On January 20, 2021, the Tribunal rendered the Final Award (hereinafter the "Award").

12.

In accordance with Article 35 (1) of the Arbitration Regulations of the International Chamber of Commerce in force as of March 1, 2017 (hereinafter the "Regulations") and the agreement reached between the Parties on November 18, 2020, the Secretariat notified the Award electronically and sent a digital copy of it on January 22, 2021.5

13.

On February 24, 2021, the Secretariat informed the Parties that on February 22, 2021, the Respondent had submitted a request under Article 36 of the Regulations, which the Secretariat attached for the attention of the Claimant and the Tribunal (hereinafter the "Request for Correction of the Award" or "Request for Correction").6

14.

On the same date, the Tribunal informed the Claimant that it would have until March 5, 2021 to rule on the Request for Correction presented by the Respondent, in accordance with the provisions of Article 36 (2) of the Regulations.

15.
On March 5, 2021, the Respondent spoke out regarding the Request for Correction of the Award, opposing it (hereinafter "Opposition to the Request for Correction" or "Opposition").
16.

On March 16, 2021, the Tribunal submitted the draft Addendum for the Court's approval, within the term provided in Article 36 (2) of the Rules of Procedure.

IV. THE REQUEST SUBMITTED BY THE RESPONDENT

17.
In the Request for Correction of the Award, the Respondent requested the correction of the Award issued on January 20 of this year in case No. 23364 / JPA, in reference to "a typographical or similar error".7
18.

The "typographical error" whose correction is requested consists in amending an alleged calculation error in paragraphs 957 (ii), 959 and 981 (f) of the Award, so that in said paragraphs "instead of the figure "US $ 2,343,832.39" the figure "US $ 2,046,224.14" should be included.8

19.

The Dominican Government considers that the Request for Correction is appropriate because it addresses errors related to the calculation of damages, which have been recognized by the doctrine and by the ICC Arbitration Guide as events covered by Article 32 of the Regulations.910

20.
The Respondent considers that, due to the alleged calculation error contained in the Award, Dominicana Renovables is being overcompensated in the amount of US $ 297,608.25.
21.

The Dominican Government argues that the Tribunal, when referring to the Claimant's expert conclusions in paragraph 957 (ii) of the Award, "made a calculation error by indicating that 77.39% of US $ 2,644,021.44 would be US $ 2,343,832.39, when, as confirmed by the Claimant's expert and the Award itself (in its footnote number 605), the correct figure is US $ 2,046,224.14."11

22.

The Respondent adds that said error was repeated in: (i) paragraph 959 of the Award, where the Tribunal again concluded that it would consider 77.39% of US $ 2,644,021.00 as proven, calculating said percentage at US $ 2,343,832.39; and (ii) in the operative part of the Award in which the Dominican Government was ordered to pay the sum of US $ 2,343,832.39.

23.

In consideration of the transcript of the presentation of the Claimant's expert cited in footnote number 605 of the Award, the Dominican Republic requests that the Tribunal correct the aforementioned errors and, instead, include the figure of US $ 2,046,224.14.

V. THE CLAIMANT'S OPPOSITION TO THE REQUEST FOR CORRECTION MADE BY THE DOMINICAN GOVERNMENT

24.
In the Opposition to the Correction Request, Dominicana Renovables denies that there is an overcompensation in its favor or any calculation error that needs to be corrected.12
25.
The Claimant states that the damages recognized by the Tribunal in the Award were based on the expert report prepared by the expert witness Juan Luis Sendin, who confirmed "that the full amount established as justified is, indeed, $ 2,343,832.39 dollars, as indicated by the Final Award."13
26.
The Claimant explains that the amounts recognized by the expert consisted of "$ 2,046,244.14 justified with supporting documentation as paid, and $ 297,608.27 justified with supporting documentation, accounted for as owed by Dominicana Renovables in reference to payment of pending rents and engineering services for which Dominicana Renovables is responsible".14
27.

For Dominicana Renovables, there is no doubt that the Tribunal decided to recognize the sum of US $ 2,343,832.39 as this is confirmed by paragraphs 977 and 978 of the Award, and there are no reasons why the Tribunal does not consider that this was really the amount confirmed.15

28.
Notwithstanding the foregoing, Dominicana Renovables recognizes that there is an immaterial error in the percentage indicated by the Tribunal, which according to the Claimant does not correspond to 77.38% but to 88.65%. However, it considers that this inconsistency is minor and irrelevant.
29.
In accordance with all of the foregoing, the Claimant requests that the Request for Correction formulated by the Dominican State be rejected and the decision to grant Dominicana Renovables the sum of US $ 2,343,832.39 as compensation be maintained.16

VI. TIMELINESS OF THE APPLICANT'S REQUEST FOR CORRECTION

30.

Article 36 (2) of the Regulation establishes:

Any request for correction of an error of the type provided for in Article 36 (1) or for the interpretation of the award made by a party, must be addressed to the Secretariat within 30 days of receipt of the award by said party in as many copies as provided for in Article 3 (1).

31.
The Respondent received the Award on January 22, 2021 and submitted the Request for Correction on February 22, 2021, that is, within the term of 30 subsequent days referred to in the article of the Regulations just transcribed.
32.
In accordance with the foregoing, the Request for Correction of the Award made by the Dominican Government was presented in a timely manner.

VII. TRIBUNAL CONSIDERATIONS

A. Scope of the Correction Request formulated based on the article 36 of the regulation

33.

The Regulation in numerals 1 and 2 of article 36 establishes:

1. The arbitral tribunal may correct any calculation or typographical error, or of a similar nature contained in the award ex oficio, as long as said correction is submitted to the Court for approval within 30 days following the date of said award.

2. Any request for correction of an error of the type provided for in Article 36 (1) or of the interpretation of the award made by a party, must be addressed to the Secretariat within 30 days of receipt of the award by said party in as many copies as provided for in Article 3 (1). After communication of the request to the arbitral tribunal, the tribunal will grant the other party, in order for it to present its comments, a brief period of time, in principle no more than 30 days, counted from the receipt of the request by said party. The arbitral tribunal shall submit its decision on the request, in the form of a draft, to the Court no later than 30 days after the expiration of the period granted to the other party to express its comments or within any other period that the Court has set.

34.
The scope of application of the provisions of the Regulation transcribed above is limited, both with respect to the Parties, which are not empowered to file an appeal, and for the Tribunal, which is not allowed to review the basis of its reasoning or to treat additional claims or arguments, once the award has been rendered.17
35.
Taking into account the aforementioned restricted scope, the Tribunal will now refer to the request made by the Respondent.

B. Absence of typographical error in the amount recognized to the Claimant

36.

The Dominican Government has noticed in its Request for Correction an apparent contradiction in the Award in paragraphs 957 (ii), 959 and 981 (f), between the percentage indicated therein and the value ultimately recognized in favor of Dominicana Renovables as consequential damages.

37.
In this regard, the Tribunal considers that there is no error in relation to the value of the damages recognized in favor of the Claimant for the reasons indicated in the text of the Award itself.
38.
Indeed, the Tribunal considered the sum of US $ 2,343,832.39, identified by the Claimant's expert Juan Sendín, as proven.18 Thus, in paragraph 956 of the Award it was stated:19

According to the expert, during the 2008-2018 period, the Claimant incurred expenses for a total amount of US $ 2,343,832.39 related to the construction and commissioning of the Park.

39.

Then, in paragraph 959 of the Award it was stated:20

In view of the above observations, the Tribunal will only consider as proven those damages generated to the Concessionaire due to the breach of the CDEEE, in the amount of US $ 2,343,832.39, which represents 77.39% of the total amount of US $ 2,644,021.00 claimed by the Claimant.

40.
Although the Tribunal recognizes that there is an arithmetic inconsistency in the last sentence of the aforementioned paragraph, insofar as the amount recognized does not represent 77.39% of the value claimed by the Claimant, but rather 88.65%, said error does not modify the Tribunal's conclusions regarding the proven value of the investment made by Dominicana Renovables, as explained below.
41.
To determine the value of the consequential damage, the Tribunal began with the figure verified by the Claimant's expert, Juan Sendín, who concluded in his report:21

After reviewing the documentation provided, an amount equivalent to $ 2,046,224.16 has been justified. Likewise, there is an outstanding amount of $ 297,608.27, which makes a total of $ 2,343,832.39 related to the construction and commissioning of the La Isabela wind farm.

42.
Based on the foregoing conclusion, the Tribunal took as a basis the US $ 2,343,832.39 verified by the expert.22
43.
Next, the Tribunal mentioned certain questions to the expert's report that were the subject of discussion at the Hearing, including the lack of supporting documentation or proof of payment and the percentage of justified expenses.23
44.

However, in paragraph 958 of the Award, the Tribunal rejected said observations because it found that the information obtained by the expert had sufficient supporting documentation including the US $ 297,608.27 that the Respondent company owes to third parties.24

45.

Thus, based on everything expressed in the previous paragraphs of the Award, in paragraph 981 (f) the Dominican Government was ordered to indemnify Dominicana Renovables, in the following terms:25

Order the Dominican Government to pay the Claimant, as compensation for damages derived from its civil liability, the amount of two million three hundred forty-three thousand eight hundred thirty-two dollars and thirty-nine cents (US $ 2,343,832.39).

46.

From the foregoing, it is evident that there is no error in the value recognized in favor of Dominicana Renovables in paragraphs 959 and 981 (f), since their text reflects the decision adopted by the Tribunal.

C. Regarding typographical errors related to the percentage of the AMOUNT CLAIMED BY THE CLAIMANT

47.
The Respondent has rightly indicated in its Request for Correction that 77.39% of the US $ 2,644,021.44 claimed by Dominicana Renovables is US $ 2,046,224.14.26
48.
In this regard, the Tribunal determines that two immaterial typographical errors were actually incurred, which do not affect the conclusion reached by the Tribunal regarding the amount to be compensated by the Dominican Government to Dominicana Renovables.
49.

First , a transcription error was filed in paragraph 957 (ii) of the Award, since as shown in footnote number 605, the Tribunal's intention was to mention one of the assertions of expert Sendin regarding the amount justified by means of supporting documentation, which was initially estimated by Mr. Sendin at US $ 2,046,000.

50.
Therefore, it is agreed to correct said error and consequently paragraph 957 (ii) of the Award is amended in the following terms:

957 (ii) Recognized that of the US $ 2,644,021.00 claimed by Dominicana Renovables in its counter-memorial, only 77.39% of expenses are justified, that is, US $ 2,046,000 (in round numbers).

51.

Second, as mentioned earlier, there is a typographical error in the percentage recognized in favor of Dominicana Renovables in paragraph 959 of the Award. Given that the sum that the Tribunal understands as proven is US $ 2,343,832.39, the correct percentage is 88.65% and not 77.39% as indicated.

52.

In order to dispel any doubts related to the interpretation of the Award, the Tribunal has chosen to implement some clarifications to paragraphs 956 to 959, in the following terms:

956 According to this expert, during the 2008-2018 period, the Claimant incurred expenses for a total amount of US $ 2,343,832.39 related to the construction and commissioning of the Park.27

957 At the hearing, the expert made the following admissions regarding his report:

(i) He admitted having included expenses of US $ 382,564 for which he has no proof of payment.28

(ii) He acknowledged that of the US $ 2,644,021.00 claimed by Dominicana Renovables in its counter-memorial, only 77.39% of expenses are justified, in other words, US $ 2,046,000 (in round numbers).29

(iii) He acknowledged that in his report he only attached thirteen invoices, which did not exceed US $ 90,000.30

(iv) He admitted not having the contracts or payment records of Normawind; the information was taken from the Company's accounting records.31

958 The Tribunal observes that, although the expert acknowledged that he did not have access to all the payment records and did not attach all the invoices to his report, said information was obtained from the Company's accounting and had some kind of supporting documentation..32 Consequently, the Tribunal considers that the calculation performed by the expert has sufficient documentary basis, in the absence of evidence to the contrary.

959 Therefore, the Tribunal will consider it proven that the damages generated to the Concessionaire by the breach of the CDEEE, amount to the sum of US $ 2,343,832.39.

53.

The Tribunal notes that these modifications to paragraphs 956-959 of the Award are intended to correct the typographical errors contained in original paragraphs 957 (ii) and 959 and to clarify their context to avoid any doubt. As such, these modifications are a necessary consequence of the Respondent's Request for Correction and do not represent an interpretation of the Award or a modification of the original reasoning.

VIII. ADDENDUM

54.

In accordance with the foregoing, the Tribunal resolves:

(a) To partially deny the request for correction of paragraphs 959 and 981 (f) of the Award, as there is no error in the calculation of the amount recognized as compensation in favor of the Claimant.

(b) Partially access the request for correction of the typographical error in paragraph 957 (ii) of the Award, in order to amend the transcription error. As a result, said paragraph will read as follows:

957 (ii) Recognized that of the US $ 2,644,021.00 claimed by Dominicana Renovables in its counter-memorial, only 77.59% of expenses are justified, in other words, US $ 2,046,000 (in round numbers).

(c) Complement the Award in terms of clarifying that the value of the consequential damage recognized to Dominicana Renovables is US $ 2,343,832.39, adopting the following as the final text of paragraphs 956 to 959:

956 According to this expert, during the 2008-2018 period, the Claimant incurred expenses for a total amount of US $ 2,345,832.39 related to the construction and commissioning of the Park.33

957 At the hearing, the expert made the following admissions regarding his report:

(i) He admitted having included expenses of US $ 382,564 for which he has no record of payment.34

(ii) He acknowledged that of the US $ 2,644,021.00 claimed by Dominicana Renovables in its counter-memorial, only 77.39% of expenses is justified, in other words US $ 2,046,000 (in round numbers).35

(iii) He acknowledged that in his report he only attached thirteen invoices that do not exceed US $ 90,000.36

(iv) He admitted not having the contracts or records of payment to Normawind; the information was taken from the Company's accounting records.37

958 The Tribunal observes that, although the expert acknowledged that he did not have access to all the payment records and did not attach all the invoices to his report, said information was obtained from the Company's accounting records and had some kind of supporting documentation.38 Consequently, the Tribunal considers that the calculation performed by the expert has sufficient documentary basis, in the absence of evidence to the contrary.

959 Therefore, the Tribunal will consider it proven that the damages generated to the Concessionaire, due to the breach of the CDEEE, amount to the sum of US $ 2,343,832.39.

(d) Deny correction request of paragraph 981 (f) of the Award.

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