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

Final Award

COMMONLY USED TERMS

TermMeaning
2009 Amendment Amendment of the Supply Agreement, dated 28 July 2009 (Exhibit C-7)
Claimant DOOSAN HEAVY INDUSTRIES & CONSTRUCTION CO., LTD. (aka "DOOSAN")
Container Cranes Container handling gantry cranes for a ship-to-shore supply
DAB Dispute Adjudication Board pursuant to the standard conditions of the International Federation of Consulting Engineers (FIDIC)
FIDIC General Conditions Part I of the Tender document, incorporated by reference from FIDIC's Conditions of Contract for Plant and Design-Build (1999)
Hearing A hearing which took place on 20, 21 and 22 September 2017 at the ICC Hearing Centre in Paris
ICC Court The International Court of Arbitration of the International Chamber of Commerce
ICC Rules The ICC Rules of Arbitration in force as of 1st January 2012
ICC Secretariat The body of the ICC Court charged with the administration of cases under the direction of the ICC Secretary General
Parties Claimant and Respondents collectively
Respondent 1 DAMIETTA INTERNATIONAL PORT COMPANY S.A.E. (aka "DIPCO")
Respondent 2 KGL International for Ports, Warehousing and Transport K.S.C.C. (aka KUWAIT GULF LINK PORTS INTERNATIONAL or "KGLPI")
Respondents Respondent 1 and Respondent 2
collectively
Supply Agreement Contract dated 13 April 2007 for the supply of Container Cranes, including ten annexes (Exhibit C-1)
Tender A tender which has been specified in the tender document, dated November 2006, and which includes the Conditions of Contract, consisting of Part I - General Conditions (incorporated by reference from FIDIC's Conditions of Contract, Plant and
Design-Build ("General Conditions") (1999)) and Part II - Particular Conditions
ToR Terms of Reference signed by the President and the Co-arbitrators, by Claimant and by Respondent 1
Tribunal Dr Christian Dorda (President), Philippe Pinsolle (Co-Arbitrator) and Pr Nabil N. Antaki (Co-Arbitrator), collectively
Arbitration Agreement Arbitration agreement pursuant to Clause 20.6 of the General Conditions

The following chart contains a summary of the substantive submissions filed by the Parties and the abbreviations used for each submission throughout this Final Award.

PartyTitle of SubmissionDateAbbreviation
Claimant Request for Arbitration 18 April 2016 C-RfA
Respondents Answer to the Request for Arbitration and Respondent 1's Counterclaim 23 August 2016 R-ANSWER
Claimant Reply to Respondent 1's Counterclaim 26 September 2016 C-REPLY
Claimant Request for Interim Measures 2 February 2017 C-Request Interim
Respondent 1 Answer to Claimant's Request for Interim Measures 23 February 2017 R1-Answer Interim
Respondent 1 Statement of Defense 10 May 2017 R1-SoD
Claimant Reply to Respondent 1's Full Statement of Defense 14 June 2017 C-SECONDREPLY
Respondent 1 Rejoinder 26 July 2017 R1-REJOINDER
Claimant Rebuttal to Respondent 1's Rejoinder 30 August 2017 C-REBUTTAL
Claimant Claimant's First Post- Hearing Brief 13 October 2017 C-PHB1
Respondent 1 Respondent 1's First Post-Hearing Briefs 13 October 2017 R1-PHB1-CR (by Co-Counsel Crowell & Moring)
R1-PHB1-KH (by Co-Counsel Wadih Philippe
Khalaf)
Claimant Claimant's Second Post-Hearing Brief 6 November 2017 C-PHB2
Respondent 1 Respondent 1's Second Post-Hearing Briefs 6 November 2017 R1-PHB2-CR (by Co-Counsel Crowell & Moring)
R1-PHB2-KH (by Co-Counsel Wadlh Philippe Khalaf)
Claimant Claimant's Cost Submission 17 November 2017 C-COST
Respondent 1 Respondent 1's Cost Submission 17 November 2017 R1-COST

A. THE PARTIES

1. Claimant

1.
Claimant in this arbitration is

DOOSAN HEAVY INDUSTRIES & CONSTRUCTION Co., LTD.

22 Doosan Volvo-ro, Seongsan-gu,
Changwon-si, Gyeongsangnam-do (51711)
Republic of Korea

2.
Claimant is a Korean limited company, registered under Business Registration Number 609-81-04684.
3.
Claimant is represented by

KING & SPALDING International LLP
Attn: Mr James E. Castello
Mr Rami Chahine
12 Cours Albert 1er
75008 Paris, France
Tel: +33 1 73 00 39 00
Email: jcastello@kslaw.com
rchahine@kslaw.com

KING & SPALDING LLP
Attn: Mr Jan K. Schäfer
TaunusTurm
Taunustor 1
60310 Frankfurt am Main, Germany
Tel: +49 69 257 811 000
Email: jschaefer@kslaw.com

2. Respondents

4.
Respondent 1 in this arbitration is

Damietta International Port Company S.A.E.
Damietta Port Road
Kafr El-Battikh
Casablanca Hotel, 2nd Floor
Damietta, The Arab Republic of Egypt

5.
Respondent 1 is a company incorporated under the laws of The Arab Republic of Egypt, registered with the Investment Commercial Registry under n° 2139.
6.
Respondent 2 in this arbitration is

KGL International for Ports, Warehousing and Transport K.S.C.C.
P.O. Box 42438
Shuwaikh 70655, Kuwait

7.
Respondent 2 is a company incorporated under the laws of Kuwait. Respondent 2 is also interchangeably referred to as Kuwait Gulf Link Ports International or KGLPI.
8.
Respondents are represented by

CROWELL & MORING LLP
Attn: Mr George D. Ruttinger
Mr Ian A. Laird
Mr David C. Hammond
Ms Ashley R. Riveira
Ms Joanna Coyne
1001 Pennsylvania Avenue, NW
Washington, DC 20004-2595, USA
Tel: +1 202 624-2500
Email: g ruttinger@crowell.com
ilaird@crowell.com
dhammond@crowell.com
ariveira@crowell.com
jcoyne@crowell.com

CROWELL & MORING LLP
Attn: Ms Rand Adra
590 Madison Avenue
New York, NY 10022-2544, USA
Email: radra@crowell.com

CROWELL & MORING LLP
Attn: Mr John Laird
Tower 42
London, UK EC2N 1HQ
Email: jlaird@crowell.com

ALOTHMAN & KHALAF ATTORNEYS & COUNSELLORS-AT-LAW
Attn: Mr Wadih Philippe Khalaf
Kuwait Free Trade Zone, Phase 1
Building No. 3, Office No. 31
Shouwaikh Port
P.O Box 884 Dasman, 15459 Kuwait, The State of Kuwait
Tel: +965 24845262/24821612
Email: attorneys@WDhklaw.com
wk@wphklaw.com

B. THE TRIBUNAL

9.
The Tribunal consists of three arbitrators who are Christian Dorda, Philippe Pinsolle and Pr Nabil N. Antaki.

1. President - Dr Christian Dorda

DORDA Rechtsanwälte GmbH1
Universitätsring 10
1010 Vienna, Austria
Telephone: (+43-1) 5334795-14
Fax: (+43-1) 5334795-5014,
Email: Christian.dorda@dorda.at

10.
Christian Dorda was directly appointed by the ICC pursuant to Art 13(4) of the ICC Rules on 12 January 2017.

2. Co-Arbitrator appointed by Claimant - Philippe Pinsolle

QUINN EMANUEL URQUHART & SULLIVAN LLP
6 rue Lamennais
75008 Paris, France
Telephone: (+33) 1 73 44 60 00266886
Email: philippepinsolle@quinnemanuel.com

11.
Philippe Pinsolle was nominated by Claimant and confirmed by the Secretary General of the ICC Court on 14 September 2016 pursuant to Article 13(2) of the ICC Rules.

3. Co-Arbitrator appointed by Respondent - Pr Nabil N. Antaki

401-90, Willowdale Avenue
Outremont, Qc.
H3T 1E9, Canada
Telephone: (+1) 514 2077371
Email: nnantaki@videotron.ca

12.
Nabil N. Antaki was nominated by Respondent and confirmed by the Secretary General of the ICC Court on 14 September 2016 pursuant to Article 13(2) of the ICC Rules.

C. FRAMEWORK OF THE ARBITRATION

1. Arbitration Agreement

13.
Clause 20.6 of the General Conditions2 stipulates as follows:

20.6 Arbitration

Unless settled amicably, any dispute in respect of which the DAB'S decision (if any) has not become final and binding shall be finally settled by International arbitration. Unless otherwise agreed by both Parties;

(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce,

(b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules, and

(c) the arbitration shall be conducted in the language for communications defined in Sub-Clause 1.4 [Law and Language], as quoted in §15 below.

The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DAB, relevant to the dispute, Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the dispute,

Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the dab to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration.

Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Engineer and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works.

14.
Article 1.4 Of the General Conditions3 contains the following clause:

1.4 Law and Language

The Contract shall be governed by the law of the country (or other jurisdiction) stated in the Appendix to Tender,

If there are versions of any part of the Contract which are written in more than one language, the version which is in the ruling language stated in the Appendix to Tender shall prevail.

The language for communications shall be that stated in the Appendix to Tender. If no language is stated there, the language for communications shall be the language in which the Contract (or most of it) is written.

15.
The Revised Appendix to Tender4 supplements the following details on the applicable law and on dispute resolution:

Item: Governing Law

Sub-Clause: 1.4

Entry: Delete "Egypt" and insert "The law of the Arab Republic of Egypt"

Item: Arbitration

Sub-Clause: 20.6

Entry: Rules: International Chamber of Commerce

Venue: Paris, France

Language: English

16.
Article 20.6 of the FIDIC General Conditions - as supplemented by the Revised Appendix to Tender - constitutes the Arbitration Agreement.

2. Place of Arbitration

17.
Clause 20.6 of the Revised Appendix to Tender stipulates that the venue of the arbitration shall be Paris, France ("Venue: Paris, France").5

3. Language of Arbitration

18.
Clause 20.6 of the Revised Appendix to Tender stipulates that the language of the arbitration shall be English ("Language: English").6

4. Applicable ICC Rules

19.
Since the Request for Arbitration was made on 18 April 2016, the ICC Rules 2012 apply.

5. Applicable Substantive Law

20.
Clause 1.4 of the General Conditions7 provides as follows:

1.4 Law and Language

The Contract shell be governed by the law of the country (or other jurisdiction) stated in the Appendix to Tender.

[...]

21.
Clause 1.4 of the Revised Appendix to Tender stipulates that the governing law shall be "[t]helaw of the Arab Republic of Egypt".8

6. Relief Requested by the Parties

6.1 Claimant's Requested Relief

22.
Claimant's requested relief has evolved over the course of the arbitration. In its C-RfA dated 18 April 2016, Claimant sought the following relief:9

- Ordering DIPCO and KGLPI to pay to Doosan damages, with the amount to be quantified during the arbitration.

- Ordering DIPCO and KGLPI to pay interest at an annual rate of 6.5% on amounts due and during times to be specified during the arbitration, until full payment.

- Declaring that the Supply Agreement has been validly terminated on March 4, 2016.

- In the alternative, declaring that the Supply Agreement has been validly terminated upon the termination of the Respondent's concession for the Damietta port project.

- Any other relief that the Arbitral Tribunal considers fair and appropriate.

In its C-REPLY of 26 September 2016, Claimant additionally sought the following relief:10

On the above basis, Doosan respectfully requests that the Tribunal reject the First Respondent's Counterclaim in its entirety. Doosan further maintains in full its claims for relief as set forth in its Request for Arbitration and reserves its right to seek additional or other relief to which it may be entitled.

23.
In its letter of 2 June 2017, Claimant amended its Request for Relief to "request for an express ruling from the Tribunal declaring that Doosan does not owe to DIPCO any portion of the advance payment that it received".
24.
In its C-SECONDREPLY of 14 June 2017, Claimant sought the following relief:11

a) To find that KGLPI is a proper party to this arbitration and that the Tribunal has jurisdiction over KGLPI;

b) To declare DIPCO and KGLPI in material breach of the Supply Agreement;

c) To declare that DIPCO and KGLPI's breaches of the Supply Agreement are not excused by force majeure;

d) To declare that the Supply Agreement was validly terminated by Doosan for material breach on 4 March 2016 in accordance with Sub-Clause 16.2 of the FIDIC General Conditions;

e) To order DIPCO and KGLPI to pay to Doosan the amounts contemplated by Clause 16.4 of the FIDIC General Condition in case of valid termination for material breach pursuant to Sub-Clause 16.2 of the FIDIC General Conditions, with pre-award and post-award interest;

f) Alternatively, to declare the Supply Agreement terminated on the basis of impossibility pursuant to Sub-Clause 19.7 of the FIDIC General Conditions and Article 159 of the Egyptian Civil Code;

g) In such case, to order DIPCO and KGLPI to pay to Doosan the amounts contemplated by Sub-Clause 19.6 of the FIDIC General Condition in case of termination for impossibility pursuant to Sub-Clause 19.7 of the FIDIC General Conditions, with pre-award and post-award interest;

h) In any event, to declare that DIPCO and KGLPI are not entitled to any re-payment, partially or wholly, of the advance payment provided to Doosan of US$ 18.4 million; and,

i) To order DIPCO and KGLPI to pay all costs and expenses of this arbitration, including the ICC's administrative fees, the fees and expenses of the Arbitral Tribunal, the fees and expenses of Doosan's legal representatives and experts in respect of this arbitration, and any other costs of this arbitration; and finally

j) To grant any other relief that it deems just and proper.

25.
In its C-REBUTTAL of 30 August 2017, Claimant sought the following relief:12

a) To change the name of the Second Respondent or KGLPI in the caption for this arbitration to "KGL International for Ports, Warehousing & Transport K.S.C.C."; and to issue any award, order or other directive or communication that extends to KGLPI to "KGL International for Ports, Warehousing & Transport K.S.C.C."

b) To find that KGLPI is a proper party to this arbitration and that the Tribunal has jurisdiction over KGLPI;

c) To declare DIPCO and KGLPI to be jointly and severally liable under the Supply Agreement;

d) To declare that DIPCO and KGLPI have materially breached the Supply Agreement; or, in the alternative, if the Tribunal finds either that it lacks jurisdiction over KGLPI or that KGLPI did not so breach, to declare that DIPCO materially breached the Supply Agreement;

e) To declare that DIPCO and KGLPI's breaches of the supply Agreement are not excused by force majeure;

f) To declare that the Supply Agreement was validly terminated by Doosan for material breach on 4 March 2016 in accordance with Sub-Clause 16.2 of the FIDIC General Conditions;

g) To order DIPCO and KGLPI - or, in the alternative scenario described in (d) above, to order DIPCO to pay to Doosan the amounts contemplated by Clause 16.4 of the fidic General Conditions in case of valid termination for material breach pursuant to Sub Clause 16.2 of the FIDIC General Conditions, which amounts have been quantified so far at US$ 79,007,597;

h) To order that DIPCO and KGLPI - or, in the alternative scenario described in (d) above, to order DIPCO - to pay pre-award interest on the amounts ordered to be paid in (g), which interest has been quantified as of 30 August 2017 at US$ 4,856,827, and post-award interest on the amounts ordered to be paid under (g);

i) Alternatively to (d) through (h) above, to declare that the Supply Agreement terminated on the basis of impossibility pursuant to Sub-Clause 19.7 of the FIDIC General Conditions and Article 159 of the Egyptian Civil Code;

j) In such case, to order DIPCO and KGLPI to pay to Doosan the amounts contemplated by Sub-Clause 19.6 of the FIDIC General Conditions, which amounts have been quantified so far at US$ 75,765,593; in the alternative, if the Tribunal finds that it lacks jurisdiction over KGLPI, to order DIPCO to pay to Doosan said amounts;

k) To order that DIPCO and KGLPI - or, in the alternative scenario described in (j) above, to order DIPCO - to pay pre-award interest on the amounts ordered to be paid in (j), which interest has been quantified as of 30 August 2017 at US$ 4,652,781, and post-award interest on the amounts ordered to be paid under (j);

l) In any event, to declare that DIPCO and KGLPI are not entitled to any re-payment, partially or wholly, of the advance payment provided to Doosan of US$ 18.4 million; and

m) To order DIPCO and KGLPI to pay all costs and expenses of this arbitration, including the ICC's administrative fees, the fees and expenses of the Arbitral Tribunal, the fees and expenses of Doosan's legal representatives and experts in respect of this arbitration, and any other costs of this arbitration; and finally

n) To grant any other relief that it deems just and proper.

26.
In its C-PHB1 Brief of 13 October 2017, Claimant sought the following relief:13

a) To find that KGLPI is a proper party to this arbitration and that the Tribunal has jurisdiction over KGLPI;

b) To declare DIPCO and KGLPI to be jointly and severally liable under the Supply Agreement;

c) To declare that DIPCO and KGLPI have materially breached the Supply Agreement; or, in the alternative, if the Tribunal finds either that it lacks jurisdiction over KGLPI or that KGLPI did not so breach, to declare that DIPCO materially breached the Supply Agreement;

d) To declare that DIPCO and KGLPI's breaches of the Supply Agreement are not excused by force majeure;

e) To declare that the Supply Agreement was validly terminated by Doosan for material breach on 4 March 2016 in accordance with Sub-Clause 16.2 of the FIDIC General Conditions;

f) To order DIPCO and KGLPI - or, in the alternative scenario described in (d) above, to order DIPCO - to pay to Doosan the amounts contemplated by Clause 16.4 of the FIDIC General Conditions in case of valid termination for material breach pursuant to Sub-Clause 16.2 of the FIDIC General Conditions, which amounts have been quantified so far at US$ 79,007,597;

g) To order that DIPCO and KGLPI - or, in the alternative scenario described in (d) above, to order DIPCO - to pay pre-award interest on the amounts ordered to be paid in (g), which interest has been quantified as of 30 August 2017 at US$ 4,856,827, and post-award interest on the amounts ordered to be paid under (g);

h) Alternatively to (d) through (h) above, to declare that the Supply Agreement terminated on the basis of impossibility pursuant to sub Clause 19.7 of the FIDIC General Conditions and Article 159 of the Egyptian Civil Code;

i) In such case, to order DIPCO and KGLPI to pay to Doosan the amounts contemplated by Sub-Clause 19.6 of the FIDIC General Conditions, which amounts have been quantified so far at US$ 75,765,593; in the alternative, if the Tribunal finds that it lacks jurisdiction over KGLPI, to order DIPCO to pay to Doosan said amounts;

j) To order that DIPCO and KGLPI - or, in the alternative scenario described in (j) above, to order DIPCO - to pay pre-award interest on the amounts ordered to be paid in (j), which interest has been quantified as of 30 August 2017 at US$ 4,652,781, and post-award interest on the amounts ordered to be paid under (j);

k) In any event, to declare that DIPCO and KGLPI are not entitled to any re-payment, partially or wholly, of the advance payment provided to Doosan of US$ 18.4 million; and

l) To order DIPCO and KGLPI to pay all costs and expenses of this arbitration, including the ICC's administrative fees, the fees and expenses of the Arbitral Tribunal, the fees and expenses of Doosan's legal representatives and experts in respect of this arbitration, and any other Costs of this arbitration; and finally

m) To grant any other relief that it deems just and proper.

27.
In its C-PHB2 Brief of 6 November 2017, Claimant sought the following relief:14

a) To find that KGLPI is a proper party to this arbitration and that the Tribunal has jurisdiction over KGLPI;

b) To declare DIPCO and KGLPI to be jointly and severally liable under the Supply Agreement;

c) To declare that DIPCO and KGLPI have materially breached the Supply Agreement, or, in the alternative, if the Tribunal finds either that it lacks jurisdiction over KGLPI or that KGLPI did not so breach, to declare that DIPCO materially breached the Supply Agreement;

d) To declare that DIPCO's and KGLPI's breaches Of the Supply Agreement are not excused by force majeure, or, in the alternative, if the Tribunal finds either that it lacks jurisdiction over KGLPI or that KGLPI did not materially breach the Supply Agreement, to declare that DIPCO's breaches of the Supply Agreement are not excused by force majeure;

e) To declare that the Supply Agreement was validly terminated by Doosan for material breach on 4 March 2016 in accordance with Sub-Clause 16.2 of the FIDIC General Conditions;

f) To order DIPCO and KGLPI - or, in the alternative circumstance described in (c) above, to order DIPCO - to pay to Doosan the amounts contemplated by Clause 16.4 of the FIDIC General Conditions in case of valid termination for material breach pursuant to Sub-Clause 16.2 of the FIDIC General Conditions, which amounts have been quantified at US$ 79,007,597;

g) To order that DIPCO and KGLPI - or, in the alternative circumstance described in (c) above, to order DIPCO - to pay pre-award interest at the US Federal Reserve Discount Rate + 3% on the amount ordered to be paid in (f) until issuance of the award, which interest has been quantified as of 6 November 2017 at US$ 5,530,327, and post-award interest at the US Federal Reserve Discount Rate + 3% on the amount ordered to be paid under (f);

h) Alternatively to (c) through (g) above, to declare that the Supply Agreement terminated on the basis of impossibility pursuant to Sub-Clause 19.7 of the FIDIC General Conditions and Article 159 of the Egyptian Civil Code;

i) In such case, to order DIPCO and KGLPI to pay to Doosan the amounts contemplated by Sub-Clause 19.6(a) of the FIDIC General Conditions, which amounts have been quantified as US$ 78,980,879; in the alternative, if the Tribunal finds that it either lacks jurisdiction over KGLPI or that KGLPI is not liable to Doosan under the Supply Agreement, to order DIPCO to pay to Doosan the said amount;

j) To order that DIPCO and KGLPI - or, in the alternative circumstance described in (i) above, to order DIPCO - to pay pre-award interest at the US Federal Reserve Discount Rate + 3% on the amount ordered to be paid in (i) until issuance of the award, which interest has been quantified as of 6 November 2017 at US$ 5,528,409, and post-award interest at the US Federal Reserve Discount Rate + 3% on the amount ordered to be paid under (i);

k) Alternatively to (i) through (j) above, to order DIPCO and KGLPI to pay Doosan the amount contemplated by Sub-Clause 19.6(c) of the FIDIC General Conditions, which amount has been quantified at US$ 75,765,593; in the alternative, if the Tribunal finds that it either lacks jurisdiction over KGLPI or KGLPI is not liable to Doosan under the Supply Agreement, to order DIPCO to pay to Doosan said amount;

l) To order that DIPCO and KGLPI - or, in the alternative circumstance described in (k) above, to order DIPCO - to pay pre-award interest at the US Federal Reserve Discount Rate + 3% on the amount ordered to be paid in (k) until issuance of the award, which interest has been quantified as of 6 November 2017 at US$ 5,297,591, and post-award interest at the US Federal Reserve Discount Rate + 3% on the amount ordered to be paid under (k);

m) In any event, to declare that DIPCO and/or KGLPI are not entitled to any re-payment, partially or wholly, of the advance payment provided to Doosan of US$ 18.4 million; and

n) To order DIPCO and KGLPI to pay all costs and expenses of this arbitration, including the ICC's administrative fees, the fees and expenses of the Arbitral Tribunal, the fees and expenses of Doosan's legal representatives and experts in respect of this arbitration, and any other costs of this arbitration; and finally

o) To grant any other relief that it deems just and proper.

6.2 Respondents' Requested Relief

28.
Respondents' requested relief has evolved over the course of the arbitration. In their R-Answer dated 23 August 2016, Respondents sought the following relief:15

(i) This arbitration shall not proceed against KGLPI, the 2nd Respondent, which is not bound to any Arbitration Agreement with the Claimant.

(ii) This arbitration cannot proceed due to Claimant's failure to quantify its claim as requested by the Rules.

(iii) This arbitration shall not proceed as no Arbitration Agreement existed at the date of the RFA.

26. Alternatively, the Tribunal should issue an award:

(i) Denying any of the relief requested by Claimant in its RFA;

(ii) Ordering that Claimant and Counter-Respondent Doosan pay back DIPCO's advance payment of approximately US $18.4 million for the undelivered Container Cranes;

(iii) Awarding to Respondents all of their costs and fees associated with this arbitration;

(iv) Awarding to Respondents pre-award and post-award interest, as appropriate in light of the other items of relief requested, at the highest lawful rate; and

(v) Awarding to Respondents such other relief as the Tribunal may deem appropriate.

29.
In its R1-SoD of 10 May 2017, Respondent 1 sought the following relief:16

(i) The Tribunal has no jurisdiction over Respondent 2;

(ii) Denying all of the relief requested by Claimant in its RFA;

(iii) Awarding to Respondent 1 all of its costs and fees associated with this arbitration;

(iv) Awarding to Respondent 1 pre-award and post-award interest, as appropriate in light of the other items of relief requested, at the highest lawful rate; and

(v) Awarding to Respondent 1 such other relief as the Tribunal may deem appropriate.

30.
In its R1-REJOINDER of 26 July 2017, Respondent 1 sought the following relief:17

(i) The Tribunal has no jurisdiction over Respondent 2;

(ii) Denying all of the relief requested by Claimant in its C-SECONDREPLY;

(iii) Awarding to Respondent 1 all of its costs and fees associated with this arbitration;

(iv) Awarding to Respondent 1 pre-award and post-award interest, as appropriate in light of the other items of relief requested, at the highest lawful rate; and

(v) Awarding to Respondent 1 such other relief as the Tribunal may deem appropriate.

31.
In the R1-PHB1-CR of 13 October 2017, Co-Counsel Crowell & Moring sought the following relief for Respondent 1:18

(i) The Tribunal has no jurisdiction over Respondent 2;

(ii) Denying all of the relief requested by Claimant in its C-REBUTTAL;

(iii) Awarding to Respondent 1 all of its costs and fees associated with this arbitration;

(iv) Awarding to Respondent 1 pre-award and post-award interest, as appropriate in light of the other items of relief requested, at the highest lawful rate; and

(v) Awarding to Respondent 1 such other relief as the Tribunal may deem appropriate.

32.
In the R1-PHB1-KH of 13 October 2017, Co-Counsel Wadlh Philippe Khalaf sought the following relief for Respondent 1:19

Therefore;.

1) This Arbitration may neither be accepted nor proceed and the Tribunal has no jurisdiction over either Respondent. And even if this Arbitration is to proceed.

2) KGLPI may not be joined to the Arbitration and, in all cases, may not be liable to Doosan.

3) The Doosan's relief sought shall be denied as :

a. No damages are due to be paid to Doosan, by either DIPCO or by KGLPI as neither breached the Supply Agreement or else.

b. No interest of any rate or amount is due to Doosan and Doosan should pay back the USD 18.4 Million advance payment to DIPCO with interest.

c. The Supply Agreement was terminated by Doosan itself on March 4, 2016 without following the Applicable Law termination stipulations, and may not be declared terminated by the tribunal upon any other reasons or occurrence as it has already been terminated by Doosan itself for its already alleged and declared reasons and such a termination already took effect since March 4, 2016.

d. No other relief to Doosan is justified or appropriate under this Arbitration.

And thereby the Tribunal is sought to:

e. Award to DIPCO all of its costs and interest incurred due this Arbitration.

33.
In its R1-PHB2-CR of 6 November 2017, Co-Counsel Crowell & Moring did not change the relief sought for Respondent 1 vis-à-vis the relief sought in R1-PHB1-CR.
34.
In its R1-PHB2-KH of 6 November 2017, Co-Counsel Wadlh Philippe Khalaf sought the following relief for Respondent 1:20

95 In view of all the foregoing, DIPCO hereby respectfully request the Tribunal to issue a decision or an award deciding that:

(i) This arbitration shall not proceed against KGLPI, the 2nd Respondent, that refrained from joining this Arbitration since its inception and is not bound to any Arbitration Agreement with the Claimant.

(ii) This arbitration cannot proceed due to Claimant's failure to quantify its claim as requested by the Rules.

(iii) This arbitration shall not proceed as no Arbitration Agreement existed at the date of the RFA.

96 Alternatively, the Tribunal should issue an award:

(i) Denying any of the relief requested by Claimant;

(ii) Awarding DIPCO all of its costs and fees associated with this arbitration;

(iii) Awarding to DIPCO pre-award and post-award interest, as appropriate in light of the other items of relief requested, at the highest lawful rate; and

(iv) Awarding to DIPCO such other relief as the Tribunal may deem appropriate.

D. PROCEDURAL HISTORY

18 April 2016 3 August 2016 Claimant submitted its "Request for Arbitration" ("C-RFA"). This is the date the ICC Secretariat received the C-RFA and the date on which the arbitration commenced under Art 4(2) of the ICC Rules. In response to an earlier request for an extension of time for submitting the R-ANSWER, Claimant did not oppose Respondents' request but noted its objection to what Claimant alleged to be delay tactics of Respondents.
23 August 201.6 Respondents submitted their "Answer to the Request for Arbitration and Counterclaims" ("R-ANSWER").
On the same day Respondents (i) replied to Claimant's objection of 3 August 2016, (ii) objected against including Respondent 2 as a party to the arbitration, requesting the ICC Secretariat to refer the matter to the ICC Court for a decision pursuant to Article 6(4) ICC Rules, and (iii) noted that Claimant had not
yet complied with the ICC Secretariat's request to estimate the monetary value of its claim,
26 August 2016 The Secretariat informed the Parties that Respondents' Objection to the inclusion of Respondent 2 as Party was not referred to the ICC Court for a decision pursuant to Article 6(4) ICC Rules.
26 September 2016 Claimant submitted its "Reply to Counterclaim" ("C-RFPLY") together with a letter to the Secretariat of the same date.
15 December 2016 The ICC Court set the advance on costs at EUR 575,000.
13 January 2017 The ICC Secretariat transmitted the file to the Tribunal.
On the same day The ICC Secretariat informed the Parties of the advance on costs of EUR 575,000, but also clarified that based on the amount in dispute, the ICC Cost Calculator would suggest an advance in excess of EUR 683,000.
17 January 2017 The Tribunal circulated an introductory letter to the Parties, laying out the intended first steps for the arbitration. Furthermore, the Tribunal nominated Mr Philip Exenberger to be the administrative secretary to the Tribunal,
27 January 2017 The Tribunal circulated draft Procedural Order No 1 and draft Terms of Reference.
31 January 2017 Respondents proposed to hold the Case Management Conference in person while Claimant proposed to hold it via telephone.
1 February 2017 The Tribunal informed the Parties of the availability of the Tribunal for the Case Management Conference. 7 February 2017 Apart from addressing certain issues with respect to proceedings on an interim measure, Respondents announced that they would "seek a schedule for a hearing of their bifurcation request to determine whether Respondent 2 is a proper party to these proceedings",
12 February 2017 Claimant addressed issues raised by Respondents on 7 February 2017 and, inter alia, opposed bifurcation of the proceedings and any hearing on whether to order bifurcation, arguing that such trifurcation would not realize any significant efficiencies.
10 February 2017 Claimant and Respondents submitted their respective comments to the draft Terms of Reference and to the draft Procedural Order No 1.
16 February 2017 The Tribunal circulated updated versions of the draft Terms of Reference and of the draft Procedural Order No 1 as well as a draft Provisional Timetable. The Tribunal explained that it envisaged an inverse order in that Respondent shall start with a "Full Statement of Counterclaim" due to Claimant
having already gone quite far into the details of its narrative in its C-RfA and in its C-REPLY, whereas Respondents had rather confined themselves to global contestations. Given that a Case Management Conference in person could most likely only be held in April 2017, the Tribunal invited Respondents to reconsider their request for a Case Management Conference in person and asked the Parties to keep certain dates clear for a possible telephone conference.
21 February 2017 The Tribunal informed the Parties that the Case Management Conference would be held on 28 February 2017, 15.30 CET.
22 February 2017 Counsel for Claimant confirmed their availability for the Case Management Conference.
23 February 2017 Counsel for Respondent 2 confirmed their availability for the Case Management Conference.
28 February 2017 Respondent 2 informed that it was unwilling to sign the Terms of Reference due to its view that it should not be included as a party to the arbitration.
On the same day The Case Management Conference took place on the telephone from 15.30 to 17.00 CET.
6 March 2017 The Tribunal circulated the final Terms of Reference as well as the signed Procedural Order No 1 and asked the Parties to sign the Terms of Reference. Two versions of the Procedural Timetables were also circulated, one in the event a request for document production should be made and admitted, the other without document production. Furthermore, the Tribunal set the deadline for document production requests at 13 March 2017.
7 March 2017 Respondents requested an extension of three days for making a document production request.
8 March 2017 Claimant stated that it did not object to Respondents' request for extension of time, presuming that such extension would apply to all Parties.
On the same day The Tribunal extended the deadline for making document production requests for all Parties until 16 March 2017.
16 March 2017 Respondent 1 submitted its Request for the Production of Documents.
On the same day Claimant stated that while not filing a document production request at this stage of the proceedings, it would reserve its opportunity to request production until such time as Respondents would have provided adequate further detail as to their defences and counterclaims.
19 March 2017 Claimant informed the Tribunal that the Parties agreed on
an extension of time until 23 March 2017 for Claimant's submission of its observations concerning Respondent 1's document production request.
21 March 2017 Respondent 1 submitted clarification requests on ProceduralOrder No 1 and asked for Mr John Laird to be added to the counsel list for Respondent 1.
22 March 2017 The Tribunal replied to Respondent 1's clarification requestsand invited Claimant to comment by 29 March 2017.
23 March 2017 The Parties - by email of Respondent 1, confirmed byClaimant informed the Tribunal of their agreements on a three-day extension to all remaining deadlines with regard to the document production process.
On the same day Claimant submitted its Objections to Respondent 1’sRequest for the Production of Documents.
24 March 2017 The Tribunal confirmed the amendment of the ProceduralTimetable as agreed between the Parties on 23 March 2017.
29 March 2017 Claimant submitted its comments to Respondent'sclarification requests of 21 March 2017.
30 March 2017 Respondent 1 submitted its Response to Claimant'sObjections to Respondent 1's Request for the Production of Documents.
4 April 2017 Apart from addressing topics with respect to proceedings onan interim measure, Claimant extended its objections to Respondent 1's document production request no 21.
On the same day The Tribunal confirmed receipt of the Terms of Reference -bearing all signatures with the exception of Respondent 2-and announced to forward the Terms of Reference to the International Court of Arbitration for approval (Art 23(3) of the ICC Rules). Furthermore, the Tribunal circulated a slightly amended Procedural Order No 1.
10 April 2017 Apart from addressing topics with respect to proceedings onan interim measure, Respondent 1 Confirmed that it would decline to pay the deposit on costs last requested by the ICC Secretariat on 20 March 2017, stating that it recognized the potential consequences of this decision for its counterclaim. In addition, Respondent 2 reiterated its position that it would not be a party to the Arbitration Agreement and that it would not sign the Terms or Reference or participate in the arbitration in general. Respondent 2 also reiterated that the issue of the Tribunal's jurisdiction over Respondent 2 should be addressed first.
12 April 2017 The Tribunal Issued Procedural Order No 2, ruling onRespondent 1’s Request for the Production Of Documents
4 May 2017 and ordering Claimant to produce the documents by 21 April 2017. Respondent 1 withdrew its Counterclaim, stating that this withdrawal would bear no reflection on its views regarding the legal propriety of its Counterclaim.
8 May 2017 Respondent 2 informed the ICC that it would be unwilling to sign the Terms of Reference and, hence, would return the original copy of the Terms of Reference to the ICC.
10 May 2017 Respondent 1 submitted its "Statement of Defense" ("R1-SoD").
16 May 2017 The Tribunal confirmed that - given Respondent 1's Request for the Production of Documents - the further arbitration shall be governed by Procedural Timetable B and circulated a slightly amended version of the Procedural Timetable.
26 May 2017 Apart from addressing topics with respect to proceedings on an interim measure, the tribunal invited (i) Respondent 1 to clarify whether the Counterclaim was withdrawn with or without prejudice and (ii) Claimant to comment on the withdrawal of the Counterclaim.
1 June 2017 Respondent 1 stated that the Counterclaim was withdrawn without prejudice.
2 June 2017 Apart from addressing topics with respect to proceedings on an interim measure, Claimant amended its Request for Relief to "include a request for an express ruling from the Tribunal declaring that Doosan does not owe to DIPCO any portion of the advance payment that it received".
8 June 2017 The Parties - by email of Claimant, confirmed by Respondent 1- informed the Tribunal of their agreements on an extension for submitting the remaining pleadings prior to the Hearing.
12 June 2017 The Tribunal confirmed the extension of time agreed between the Parties on 8 June 2017.
14 June 2017 Claimant submitted its Reply to Respondent 1's Statement of Defense ("C-SECONDREPLY").
15 June 2017 Claimant provided FTP-login data for access to supporting exhibits and legal authorities to its C-SECONDREPLY and addressed certain errors in their numbering.
On the same day The ICC Court fixed 29 December 2017 as the time limit for the final award.
22 June 2017 The ICC Court increased the advance on costs to EUR 655,000.
26 June 2017 Following the Parties' agreement of 8 June 2017, the Tribunal circulated an update Procedural Timetable B
(Version 3).
28 June 2017 Respondent 1 requested an extension of time for filing its R-REJ01NDER from 12 July 2017 to 9 August 2017. In particular, Respondent 1 argued that (i) prior to Claimant's second submission, Respondent 1 had not been able to assess Claimant’s full case and to plan its own defence accordingly; that (ii) expert evidence was not discussed at the Case Management Conference and that Claimant had not otherwise previously indicated the form of any expert evidence it intended to produce; that (iii) the range of exhibit evidence presented by Claimant placed a burden on Respondent 1 to assess and consider potential witness testimony in rebuttal; that (iv) Respondent 1’s potential witnesses included extensively travelling executives; that (v) given the order of pleadings, Respondent 1 would have been given only one opportunity to respond to Claimant's fully particularised case; that (vi) the conclusion of the month of Ramadan and Eid al-Fitr would have already delayed the ability for counsel to take instructions on the range of issues presented in the C-SECONDREPLY; and that (vii) exhibit C-9 would no longer be the basis of Claimant's damages claims at all. Furthermore, Respondent 1 suggested that Claimant could submit its C-REBUTTAL by 30 August 2017. Finally, Respondent 1 requested that its expert be permitted to submit a short responsive report immediately prior to the hearing.
30 June 2017 Claimant opposed Respondent 1's application for an extension of time until 9 August 2017, arguing that an extension would only be acceptable until 21 July 2017 arid that even such extension would already shift the bulk Of the drafting for its C-REBUTTAL into August 2017, the peak summer vacation season. According to Claimant, all key elements of the claims set forth in C-SECONDREPLY were identified and foreshadowed in its C-RfA and C-ANSWER; exhibit C-9 would be a list of various cost and loss items suffered by Claimant, which would now have to be examined and quantified within the framework of the contract's termination provisions. The Procedural Timetable B would have always foreseen that C-SECONDREPLY would be the first point in the arbitration at which Claimant would submit an expert report. Furthermore, Claimant opposed Respondent 1's request for an additional responsive expert report but stated that if the Tribunal were to grant such responsive expert report, such report would have to be submitted far enough in advance of the Hearing so that the
4 July 2017 Claimant and its expert could review and digest this new report before the Hearing. The Tribunal granted extensions for Respondents R-REJOINDER until 19 July 2017 and for Claimants C-REBUTTAL until 23 August 2017 and granted Respondents the opportunity to file a short responsive expert report by 4 September 2017. Against this background, the Tribunal circulated an updated Procedural Timetable B (Version 4).
6 July 2017 10 July 2017 13 July 2017 Respondent stated that the extension for its R-REJOINDER granted by the Tribunal until 19 July 2017 would be insufficient for Respondent 1 to prepare its submission due to the conclusion of the month of Ramadan and Eid al-Fitr. Members of Respondent 1's counsel would also be due to prepare for and attend a hearing in another matter on 19 July 2017. Respondent, hence, requested an extension of time of two weeks until 26 July 2017 for filing its R-REJOINDER, arguing that while this would still be an inadequate extension to prepare its case, this would be the base minimum time in which Respondent 1 would even be able to finalize its submission. Finally, Respondent 1 stated that in light of the above and as the Parties would have found it difficult to maintain the original timetable, it would be best to delay the hearing dates for the week commencing 18 September 2017 to one of the weeks commencing 2 October or 9 October 2017. Claimant argued that Respondent 1's alleged justifications for an extension of time would have no merits due to (i) neither the legal claims presented nor the damages sought in C-SECONDREPLY substantially differing from the points set forth by Claimants in its prior pleadings, due to (ii) Respondent 1 having seven named counsel of record and due to (iii) Eid al-Fitr always having been scheduled to occur within the timeframe for the preparation of Respondents' R-REJOINDER. The Tribunal extended the deadlines for Respondents' R-REJOINDER, Claimant's C-REBUTTAL and Respondents' Expert's Short Responsive Report.
21 July 2017 Co-Arbitrator Philippe Pinsolle informed the Parties that the Hearing could not commence before 20 September 2017.
On the same day 22 July 2017 Claimant informed the Arbitral Tribunal of certain corrections and amendment to the expert report of Mr Sequeira, submitting additional translations of a number of exhibits. Respondent 1 argued that "adding additional time into the schedule is the fair and proper course to allow Respondent 1
an adequate opportunity to respond to Claimant's C-SECONDREPLY and the Navigant expert report" and that, hence, Respondent 1 would prefer to have the Hearing rescheduled to December 2017. Furthermore, Respondent 1 reiterated its request for an extension of the deadline for its R-REJOINDER to 9 August 2017.
26 July 2017 Respondent 1 submitted its Rejoinder ("R1-REJOINDER).
30 August 2017 Claimant submitted its Rebuttal to Respondent 1's Rejoinder ("C-REBUTTAL").
2 September 2017 Claimant submitted translations of Exhibits C-189 and C-191 to C-200 to C-REBUTTAL.
4 September 2017 Respondent 1 submitted the names of the witnesses it intended to cross examine during the Hearing.
On the same day The Parties - by email of Respondent 1, confirmed by Claimant - requested the Tribunal to have additional time to confer with respect to a joint hearing schedule and asked for clarifications on other issues related to the Hearing.
On the same day claimant submitted the names of the two English Korean interpreters for the Hearing.
On the same day The Tribunal granted an extension of time for submitting a joint hearing schedule and a consolidated list of documents until 7 September 2017. Furthermore, the Tribunal clarified some Issues related to the hearing, invited Respondents to comment on the English-Korean interpreters and advised the Parties that the Pre-Hearing Telephone Conference would be held on 11 September 2017.
5 September 2017 The Tribunal acknowledged receipt of Respondent 1’s list of witnesses and noted that no such list had been submitted by other Parties, in particular by Claimant.
6 September 2017 Claimant submitted the names of the witnesses it intended to cross examine during the Hearing.
7 September 2017 Respondent 1 stated that it had no comments on the English-Korean interpreters proposed by Claimant.
On the same day The Parties - by email of Claimant - submitted a joint chronological index of factual exhibits for the Hearing.
On the same day The Parties - by email of Respondent 1- informed the Tribunal that they expected to have the joint hearing
schedule ready on the following day.
8 September 2017 The Parties - by email or Claimant, confirmed by Respondent 1 - submitted the Joint hearing schedule.
11 September 2017 The Pre-Hearing Telephone Conference was held. During the Conference, the Arbitral Tribunal inter alia confirmed the joint hearing schedule submitted by the Parties.
17 September 2017 Respondent 1 submitted the Second Expert Report of Capt Wolfhard H. Arlt and Hans Otto Bistram.
14 September 2017 Claimant confirmed that it intended to cross examine (only) Captain Wolfhard H. Arlt as expert witness during the Hearing.
18 September 2017 The Parties submitted their lists of attendees for the Hearing.
19 September 2017 After having identified a number of issues requiring clarification, Respondent 1 submitted a new version of its Second Expert Opinion.
20 to 22 September 2017 The Hearing was held in Paris, France.
13 October 2017 The Parties submitted their First Post-Hearing Briefs (C-PHB1, R1-PHB1-CR and R1-PHB1-KH).
24 October 2017 The Tribunal invited Respondent 1 to comment on differing prayers for relief in R1-PHB1-CR and R1-PHB1-KH in Respondent 1's Second Post-Hearing Brief.
2 November 2017 The Parties - by email of Claimant, confirmed by Respondent 1 - informed the Tribunal of their agreement to extend the deadline for submitting the Second Post-Hearing Briefs to 6 November 2017.
On the same day The Tribunal acknowledged the Parties agreement on extending the deadline for the Parties' Second Post-Hearing Briefs.
On the same day The ICC Secretariat informed the Parties that the ICC Court would examine whether to readjust the advance on costs.
6 November 2017 The Parties submitted their Second Post-Hearing Briefs (C-PHB2, R1-PHB2-CR and R1-PHB2-KH).
9 November 2017 The Parties - by email of Claimant, confirmed by Respondent 1 - informed the Tribunal of their agreement to extend the deadline for their Cost Submissions to 17 November 2017.
On the same day The ICC Court increased the advance on costs to EUR 780,000.
17 November 2017 The Parties filed their Cost Submissions (C-COST and R1-COST).
5 December 2017 The Tribunal issued Procedural Order No 2, declaring the proceedings closed with respect to the matters to be decided in the award pursuant to Article 27 ICC Rules and informing the Secretariat and the Parties that it expected to submit its draft award to the Court for approval before 31 January 2018.
20 December 2017 The ICC Court set the deadline for submitting the draft award by 31 January 2018.

E. UNDERLYING FACTS

1. Brief Narrative of the Case

36.
On the basis of a long-term governmental concession the Damietta Port Authority ("DPA"), a subsidiary of the Egyptian Ministry of Transport ("MoT"), assigned DIPCO, under the involvement of KGLPI who organized the bid tender, to design, build, finance and operate a new container terminal at Damietta, Egypt.
37.
In 2007, DIPCO negotiated and signed with Doosan the Supply Agreement for 22 Super Post-Panamax ship-to-shore container gantry cranes (the "Cranes") to be delivered in two phases, with 14 Cranes to be delivered during Phase 1 and the remaining 8 Cranes to be delivered during Phase 2.
38.
The project, however, became abortive for various reasons which, in the essence, were (i) the non-delivery of the entire Project's land free of obstacles; (ii) missing design approvals and costly design changes; (iii) the insufficient financing of DIPCO by its lenders; (iv) further delays in 2011 caused by political hurdles in the context of the "Arab Spring" including the forceful deposition of President Mursi in 2012 and, ultimately, (v) the termination of the governmental concession by Prime-Ministerial Decree in November 2015.
39.
As a result, none of the container cranes was ever delivered and installed, and Doosan is seeking in the present arbitration redress from DIPCO and KGLPI, whereas the Respondents oppose Doosan's roughly USD 79mio claim (plus interest) with the arguments of (i) force majeure and impossibility on their side, (ii) Doosan having assumed the delivery risk regarding the Container Cranes arid having waived all its Claims by virtue of an amendment of the Supply Agreement entered Into with DIPCO (the "2009 Amendment") and, at source, (iii) Doosan's missing delivery readiness signified by a missing formal delivery notice that should have been sent to DIPCO.
40.
Formally, DIPCO and KGLPI raised Jurisdictional objections, find KGLPI, in addition, opposed any liability jointly with DIPCO.

2. Contractual Provisions

2.1 Supply Agreement

The Employer and the Contractor agree as follows:

1. In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract hereinafter referred to.

2. The following documents shall be deemed to form and be read and construed as part of this Contract:

(a) the Revised Price Schedule dated 12 April 2007

(b) the Pre-Design Minutes of Meeting (MOM) dated 12 April 2007

(c) the Addenda no 1

(d) the Employer's Requirements dated October 2006

(e) the Revised Appendix to Tender and Particular Conditions dated April 12, 2007

(f) the Tender Documents (including General and Particular Conditions) dated November 2006

(g) the Letter of Confirmation dated 19 March 2007

(h) the Letter of Acceptance dated 5 March 2007

(i) the Letter of Tender dated 13 December 2006

(j) the Contractor's Proposal (Technical and Commercial) and Schedules [A1-A8 and B1-B7]

3. In consideration of the payments to be made by the Employer to the Contractor as hereinafter mentioned, the Contractor hereby covenants with the Employer to design, execute and complete the Works and remedy any defects therein, in conformity with the provisions of the Contract.

4. The Employer hereby covenants to pay the Contractor, in consideration of the execution and completion of the Works and remedying of defects therein, the Contract Price at times and in the manner prescribed in the Contract.

2.2 General Conditions

41.
The most relevant provisions of the FIDIC's Conditions of Contract, Plant and Design-Build (1999)21 with regard to the current dispute are:
42.
Clause 2.1 of the General Conditions | Right of Access to Site:

The Employer shall give the Contractor right of access to, and possession of, all parts of the Site within the time (or times) stated in the Appendix to Tender. The right and possession may not be exclusive to the Contractor. If, under the Contract, the Employer is required to give (to the Contractor) possession of any foundation, structure, plant or means of access, the Employer shall do so in the time and manner stated in the Employer's Requirements. However, the Employer may withhold any such right or possession until the Performance Security has been received.

If no such time is stated in the Appendix to Tender, the Employer shall give the Contractor right of access to, and possession of, the Site within such times as may be required to enable the Contractor to proceed in accordance with the programme submitted under Sub-Clause 8.3 [Programme].

If the Contractor suffers delay and/or incurs Cost as a result of a failure by the Employer to give any such right or possession within such time, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor's Claims] to:

(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and

(b) payment of any such Cost plus "reasonable profit, which shall be included in the Contract Price.

After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters.

However, If and to the extent that the Employer's failure was caused by any error or delay by the Contractor, including an error in, or delay in the submission of, any of the Contractor's Documents, the Contractor shall not be entitled to such extension of time, Cost or profit.

43.
Clause 15.5 of the General Conditions | Employer's Entitlement to Termination:

The Employer shall be entitled to terminate the Contract, at any time for the Employer's convenience, by giving notice of such termination to the Contractor. The termination shall take effect 28 days after the later of the dates on which the Contractor receives this notice or the Employer returns the Performance Security. The Employer shall not terminate the Contract under this Sub-Clause in order to execute the Works himself or to arrange for the Works to be executed by another contractor.

After this termination, the Contractor shall proceed in accordance with Sub-Clause 16.3 [Cessation of Work and Removal of Contractor's Equipment] and shall be paid in accordance with Sub-Clause 19.6 [Optional Termination, Payment and Release].

44.
Clause 16.2 of the General Conditions | Termination by Contractor:

The Contractor shall be entitled to terminate the Contract if:

(a) the Contractor does not receive the reasonable evidence within 42 days after giving notice under Sub-Clause 16.1 [Contractor's Entitlement to Suspend Work] i n respect of a failure to comply with Sub-Clause 2.4 [Employer's Financial Arrangements],

(b) the Engineer falls, within 56 days after receiving a Statement and supporting documents, to issue the relevant Payment Certificate,

(c) the Contractor does not receive the amount due under an Interim Payment Certificate within 42 days after the expiry of the time stated in Sub Clause 14.7 (Payment] within which payment is to be made (except for deductions in accordance with Sub-Clause 2.5 [Employer's Claims]),

(d) the Employer substantially falls to perform his obligations under the Contract,

(e) the Employer falls to comply with Sub-Clause 1.6 [Contract Agreement] or Sub-Clause 1.7 [Assignment].

(f) a prolonged suspension affects the whole of the Works as described in Sub-Clause 8.11 [Prolonged Suspension], Or

(g) the Employer becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under applicable Laws) has a similar effect to any of these acts or events.

In any of these events or circumstances, the Contractor may, upon giving 14 days' notice to the Employer, terminate the Contract. However, in the case of subparagraph (f) or (g), the Contractor may by notice terminate the Contract immediately.

The Contractor's election to terminate the Contract shall not prejudice any other rights of the Contractor, under the Contract or otherwise.

45.
Clause 16 .4 of the General Conditions | Payment on Termination:

After a notice of termination under Sub-Clause 16.2 [Termination by Contractor] has taken effect, the Employer shall promptly:

(a) return the Performance Security to the Contractor,

(b) pay the Contractor in accordance with Sub-Clause 19.6 [Optional Termination, Payment and Release], and

(c) pay to the Contractor the amount of any loss of profit or other loss or damage sustained by the Contractor as a result of this termination.

46.
Clause 17.6 of the General Conditions | Limitation of Liability:

Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract, other than under Sub-Clause 16.4 [Payment on Termination] and Sub-Clause 17.1 [Indemnities].

The total liability of the Contractor to the Employer, under or in connection with the Contract other than under Sub-Clause 4.19 [Electricity, Water and Gas], Sub-Clause 4.20 [Employer's Equipment and Free-Issue Material], Sub-Clause 17.1 [Indemnities] and Sub-Clause 17.5 [Intellectual and Industrial Property Rights], shall not exceed the sum stated in the Particular Conditions or (if a sum is not so stated) the Accepted Contract Amount.

This Sub-Clause shall not limit liability in any case of fraud, deliberate default or reckless misconduct by the defaulting Party.

47.
Clause 19.1 of the General Conditions | Definition of Force Majeure:

In this Clause, "Force Majeure" means an exceptional event or circumstance:

(a) which is beyond a Party's control,

(b) which such Party could not reasonably have provided against before entering into the Contract,

(c) which, having arisen, such Party could not reasonably have avoided or overcome, and

(d) which is not substantially attributable to the other Party.

Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied;

(i) war, hostilities (whether war be declared or not), invasion, act of foreign enemies,

(ii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war,

(iii) riot, commotion, disorder, strike or lockout by persons other than the Contractor's Personnel arid other employees of the Contractor and Subcontractors,

(iv) munitions of war, explosive materials, lonising radiation or contamination by radio-activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity, and

(v) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity.

48.
Clause 19.2 of the General Conditions | Notice of Force Majeure:

If a Party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, then it shall give notice to the other Party of the event or circumstances constituting the Force Majeure and shall specify the obligations, the performance of which is or will be prevented. The notice shall be given within 14 days after the Party became aware, or should have become aware, of the relevant event or circumstance constituting Force Majeure.

The Party shall, having given notice, be excused performance of such obligations for so long as such Force Majeure prevents it from performing them.

Notwithstanding any other provision of this Clause, Force Majeure shall not apply to obligations of either Party to make payments to the other Party under the Contract.

49.
Clause 19 .6 of the General Conditions | Optional Termination, Payment and Release in case of Force Majeure):

If the execution of substantially all the Works in progress is prevented for a continuous period of 84 days by reason of Force Majeure of which notice has been given under Sub-Clause 19.2 [Notice o f Force Majeure], or for multiple periods which total more than 140 days due to the same notified Force Majeure, then either Party may give to the other Party a notice of termination of the Contract. In this event, the termination shall take effect 7 days after the notice is given, and the Contractor shall proceed in accordance with Sub-Clause 16.3 [Cessation of Work and Removal of Contractor's Equipment].

Upon such termination, the Engineer shall determine the value of the work done and issue a Payment Certificate which shall include:

(a) the amounts payable for any work carried out for which a price is stated in the Contract;

(b) the Cost of Plant and Materials ordered for the Works which have been delivered to the Contractor, or of which the Contractor is liable to accept delivery: this Plant and Materials shall become the property of (and be at the risk of) the Employer when paid for by the Employer, and the Contractor shall place the same at the Employer’s disposal;

(c) any other Cost or liability which in the circumstances was reasonably incurred by the Contractor in the expectation of completing the Works;

(d) the Cost of removal of Temporary Works and Contractor's Equipment from the Site and the return of these items to the Contractor's works in his country (or to any other destination at no greater cost); and

(e) the Cost of repatriation of the Contractor's staff and labour employed wholly in connection with the Works at the date of termination.

50.
Clause 19.7 of the General Conditions | Release from Performance under the Law:

Notwithstanding any other provision of this Clause, if any event or circumstance outside the control of the Parties (including, but not limited to, Force Majeure) arises which makes it impossible or unlawful for either or both Parties to fulfil its or their contractual obligations or which, under the law governing the Contract, entitles the Parties to be released from further performance of the Contract, then upon notice by either Party to the other Party of such event or circumstance:

(a) the Parties shall be discharged from further performance, without prejudice to the rights of either Party in respect of any previous breach of the Contract, and

(b) the sum payable by the Employer to the Contractor shall be the same as would have been payable under Sub-Clause 19.6 [Optional Termination, Payment and Release] if the Contract had been terminated under Sub-Clause 19.6.

2.3 Appendix to Tender

51.
The most relevant provision of the Appendix to Tender22 with regard to the current dispute is Clause 2.1 of the Appendix to Tender:

Time for access to the Site 2.1...... 455 days after Commencement Date

2.4 Revised Appendix to Tender

52.
In the Revised Appendix to Tender, the Parties have amended the FIDIC General Conditions. The amendments, however, are not of relevance for the present Award.

2.5 2009 Amendment

53.
The most relevant provisions of the 2009 Amendment Agreement23 with regard to the current dispute are:
54.
Clause 3:

Subject to the satisfaction of all conditions mentioned under Clause 4 herein below, DIPCO agrees that DOOSAN may sell or supply the Disposal Cranes to a third party of parties and that the delivery date for said Cranes shall be amended by virtue of Clause 4(iv).

55.
Clause 4:

The Parties agree that the exercise of DOOSAN to the option referred to In Clause 3 above is conditional upon the following:

i. DIPCO shall not bear any additional cost from this transaction sale.

ii. DOOSAN agrees that the total price for the fourteen (14) cranes shall be 120,000,000 $ (only one hundred and twenty million US dollars) including all costs, fees, any claims such as transportation costs and claims for changes of oil, ropes, etc,.. and also the costs of fixation of any problem that may be discovered after the delivery,

DIPCO shall pay DOOSAN an amount equivalent to 60% of the price of the unsold STS Cranes that has already been constructed for DIPCO by DOOSAN with a minimum of ten (10) cranes (ie 60% of 85,000,000 $ (only nighty five million US dollars)) after the lapse of one week from the financial close (the financial close refers to the date of the acceptance of the new business plan of DIPCO by the shareholders and the lenders of DIPCO).

If DIPCO did not pay the 60% amount until the end of August, 2009, DIPCO shall pay an annual Interest rate of 6.5 % on the due amounts to be calculated starting from the 1st of September, 2009.

DIPCO shall pay to DOOSAN an amount of 9,000,000 $ (only nine million US dollars) by the end of December, 2009 provided that the KPA tender mentioned below is not won by the consortium led by DOOSAN.

The remainder of the total price of the cranes shall be paid in accordance with the Original Contract.

iii. DOOSAN shall produce and supply DIPCO with new STS Cranes in replacement of the Disposal Cranes (the "Replacement Cranes") and such replacement obligation shall automatically include any other number of STS Cranes which DIPCO might expressly permit DOOSAN to sell to third parties at a future date including the supply of STS cranes to KPA stipulated herein below.

iv. DOOSAN shall supply STS Cranes and/or the Replacement Cranes to DIPCO upon receipt of a notification to that effect from DIPCO. For the avoidance of doubt, the notification sent from DIPCO to DOOSAN shall include, inter alia, the number of the requested cranes for each delivery date and the requested delivery date(s) (which shall not be less than nine months for the first four STS Cranes and twelve months for the remainder of the STS Cranes/Replacement Cranes from the date the notification is sent by DIPCO).

v. DOOSAN shall co-operate with DIPCO and KGLPI in future sales activities and in particular DOOSAN shall co-operate with DIPCO and KGLPI to finalize the tender known as the "Kuwait Port Authority (KPA)" and shall participate as co-leader with KGLPI with regards to said tender for the supply of STS Cranes, related equipment and civil-and electrical works (DOOSAN responsibility is limited to only supplying STS cranes to KPA as they are built under contract with DIPCO).

vi. In case KGLPI and DOOSAN succeed in the tender mentioned under V. above, DIPCO shall have the right to request to DOOSAN and DOOSAN shall be obliged to supply an additional number of STS cranes to KPA under the KPA tender based on the same terms, conditions, Specifications and process stipulated under the Original Contract. Notwithstanding aforesaid, the price and delivery time shall be determined in separate according to mutual agreement between the Parties.

56.
Clause 5:

The Parties agree that all other terms and conditions of the Original Contract remain valid and enforceable without any amendment other than those stipulated under this agreement.

F. PRELIMINARY ISSUES

1. Identity of Respondent 2

57.
The identity and proper name of Respondent 2 was disputed between the Parties and, after unanimous statements of the Parties, was established by the Tribunal with KGL International for Ports, Warehousing and Transport K.S.C.C.24 The Tribunal also concluded and maintains that the legal entity which had been quoted interchangeably also with Kuwait Gulf Link Ports International in the prior submissions is the same and that only a specification of the proper name of Respondent 2 has occurred.

2. Jurisdictional Objections

58.
Respondent 1 and Respondent 2 raised jurisdictional objections. Respondent 2 declined to participate in the proceedings. It remained undisputed that Respondent 2 did not sign an arbitration agreement with Claimant (is a "non-signatory"). The Parties also dealt with the issue which set of principles and laws the Tribunal should base its findings on.

2.1 Claimant’s Position

59.
Respondent 2, albeit a non signatory, shall also be subjected to the present arbitration, for the following reasons:
60.
In the present proceeding the relevant parties hall from South Korea, Egypt and Kuwait, respectively, and the contract at issue is based on a form contract promulgated by FIDIC - which is, as its name confirms, an International federation whose model instruments are used globally.25
61.
Therefore, the present case "presents the archetypical example of a dispute in which transnational principles should apply", as shown in the "seminal Dow Chemical case", in which the tribunal explained that the decisions of ICC arbitral tribunals "create case law which should be taken into account, because it draws conclusions from economic reality and conforms to the needs of International commerce, to which rules specific to International arbitration should respond. "26
62.
Alternatively, French law should apply as the law of the seat of the present arbitration.
63.
Both transnational principles27 and French law hold that a party that has played an active role in the negotiation and performance of a contract containing an arbitration agreement is deemed to have consented to arbitrate any dispute arising out of that agreement.28
64.
In Compagnie tunisienne de navigation (Cotunav) v. société Comptoir commercial André, the Paris Court of Appeal upheld an arbitral tribunal's exercise of jurisdiction over a non-signatory that was even not in any way involved in the conclusion of the contract at issue, but that rather had subsequently become involved in the performance of the contract.29
65.
In ICC Case No. 6000, the tribunal explained that:30

It is largely admitted that by virtue of a usage of the International trade, where a contract, including an arbitration clause, is signed by a company which is a party to a group of companies, the other company or companies of the group which are involved in the execution, the performance and/or the termination of the contract are bound by the arbitration clause, provided the common will of the parties does not exclude such an extension, and even more so where the common will of the parties was to include a company of the group in the contractual relationship, even if such company did not formally sign the contract.151

66.
And also under Egyptian law, the Egyptian Court of Cassation has recognized that an arbitration agreement may be extended to a non-signatory where "one can establish that it took part in the execution of the contract or created confusion as to the party actually bound by the arbitration clause."31
67.
Proceeding from the foregoing, KGLPI became a party to the arbitration agreement for the following reasons:32
68.
First, KGLPI was the driving force behind the Damietta Project from the outset and in the Revised Tender Appendix, the term "Concession Agreement" is defined as "the contract for construction and operation of a new container terminal in Damietta Port [...] between the Damietta Port Authority, the Employer, and KGL Ports International Company, as amended from time to time."33 Moreover, it was KGLPI that was awarded the concession to construct a port at Damietta, created DIPCO specifically for the Damietta Project and remained the single largest shareholder in DIPCO, with roughly a 40% stake.
69.
Second, KGLPI appointed its own officers and employees to key positions within DIPCO.
70.
Third, most DIPCO employees used KGLPI email addresses and none was shown to use an address with the DIPCO domain.
71.
Fourth, KGLPI played an indispensable role in establishing the contractual relationship at issue in this case, as (i) it was KGLPI, and not DIPCO, that prepared the November 2006 Tender Document and reserved the right to cancel DIPCO's acceptance of Doosan's Letter of Tender;34 (ii) Doosan's Letter of Tender was addressed to KGLPI, and not DIPCO; (iii) KGLPI was the beneficiary of the Tender Security, as specifically requested in the Tender Document and was understood to be the true beneficiary of the Supply Agreement, as can be seen from the LOA conditioning 30% of Doosan's payment upon the "issue by KGL PI of Taking-Over Certificate."
72.
Fifth, KGLPI played a substantial role in the performance of the Supply Agreement, whereby the considerable overlap in key personnel between DIPCO and KGLPI created confusion as to which individuals were acting on behalf of each entity. For instance, certain meeting minutes between the Parties show DIPCO and KGLPI being treated as a single, interchangeable entity, and at other times KGLPI appeared to be the sole party interacting with Doosan.
73.
Sixth and finally, DIPCO's defense that KGLPI's role in the performance of the Supply Agreement was limited to that of an "Employer's Representative" is artificial given that KGLPI was also DIPCO's largest shareholder and had staffed DIPCO with its own officers.
74.
Given KGLPI's position as a member of a group of companies and, in particular, its involvement, as outlined above, in the negotiation and performance of the Supply Agreement, it implicitly agreed to be bound by that Agreement's arbitration clause. Moreover, it created confusion as to the party actually bound by the Supply Agreement and, thus, the arbitration clause so that it shall be subjected to the present arbitration also when applying Egyptian law.35

2.2 Respondents' Position

75.
Article 23 of Egyptian Arbitration Code considers an arbitration agreement independent from the contract it is contained in, However, pursuant to Chapter 1 Article 1 of the Egyptian Arbitration Code, this provision of law would apply only to arbitral cases which are either conducted in Egypt or where the parties submitted to Egyptian arbitration law, which they did not in the case at hand.
76.
The arbitration clause contained in the Supply Agreement became nonexistent when the Supply Agreement was terminated so that no arbitration agreement existed anymore for either Party when arbitration was initiated.36
77.
As regards Respondent 2, the fact that Paris is the place of arbitration "could mean the Tribunal may also use French law, as sometimes the law of the seat is seen appropriate for deciding questions of Jurisdiction under the arbitration agreement."37 But even then KGLPI was no more than a "representative, agent and servant of DIPCO"38, which could be clearly seen from the tender documents. In order to avoid any ambiguity, an exhaustive list of activities limiting KGLPl's responsibilities to "tarry Out all port development activities" was set out as well as being "responsible for all procurement related to the project construction / development." The role of the "representative" was made clear by using specific words in plain English such as, "no agent or servant of the Employer other than KGLPI or UPTC has any authority to make any representation or explanation to tenderers" (such as Doosan].39
78.
Also the bank guarantee was made in favour of DIPCO rather than KGLPI, and Doosan's Termination Letter was addressed and sent solely to DIPCO.40
79.
Doosan's Claim that it was "KGLPI that had final say with respect to whether or not DIPCO would enter into the Supply Agreement" is wrong. The letter of acceptance notes, on DIPCO letterhead and on its behalf: "[We] have accepted your offer Dated on December 2006." That KGLPI is stated therein as potentially cancelling the letter is "merely an artefact of its expressly intended function under the tender as the Employer's Representative."41
80.
As regards the 2009 Amendment, KGLPl's involvement was limited to its cooperation with Doosan to sell cranes to the KPA.
81.
Since KGLPI had made its legal position clear no implied consent to adhere to the arbitration clause can be assumed by whatever means, may these be transnational principles or national law.42
82.
Moreover, even under transnational principles or French law a non-signatory must have been "vital" or "integral" to a contract's existence,43 which was not the case. KPLIP's involvement was limited to the KPA Tender.
83.
Under Egyptian law, "the default position is that [it] will only bind a non-signatory which takes over a contract by express operation of law." In the Cassation Case Nos. 4729 and 4730 the Court depicted arbitration as "an exceptional way to resolve disputes characterized by deviating away from conventional litigation and the guarantees it ensures", and stated:44

Where one of the parties to a group of companies enters into an arbitration agreement, it does not prove that its mother company will be bound by the arbitration clause, unless one can establish that it took part in the execution of the contract or (emphasis added) created confusion as to the party actually bound by the arbitration clause, in a manner that the will of one company may be mistaken for that of the other, however, the existence of those conditions of intervention needs to be verified or the involvement in the arbitration dispute in accordance with its exceptional nature.

84.
In the case at hand, no confusion was generated that would justify, under Egyptian law, KGLPI's submission to the arbitration clause. In case of doubt, DOOSAN should have informed itself about the role of KGLPI's employees it was dealing with.
85.
Finally, according to Egyptian and Kuwaiti laws the validity of an arbitration agreement requires a "special power of attorney to decide an Arbitration, to arbitrate or to sign an arbitration agreement", which did not exist in the case of either Respondent. Under Kuwait case law, to arbitrate is not a management (administrative) act but a disposition that requires a special (internal) authorization to do so.45

2.3 Tribunal's Determination

86.
The Tribunal undertook to examine the procedural arguments under both French and Egyptian law. Yet it finds that French law should be given prevalence.
87.
The Arbitration Clause, as contained in Article 20.6 of the FIDIC General Conditions46 and as supplemented by the Revised Appendix to Tender,47 was made an integral part of the Supply Agreement. The Supply Agreement was signed by Mohammed Al-Mazeedi, Chairman and CEO of DIPCO, and by Seong-Eun Hong, Executive Vice President of Doosan.48

2.3.1 French law

88.
In the view of the Tribunal, French law is the law to be applied to resolve the issue of who is bound by the arbitration agreement, given that a wrong decision on the relevant parties to the arbitration agreement (ie, not including the right parties or including the wrong parties) may be reviewed by the Paris Court of appeal.
89.
This is an issue of jurisdiction ratione personae. The Paris Court of Appeal is entitled to fully review the Jurisdictional findings of an award. The principle of full review for jurisdictional issues, both in fact and in law is jurisprudence constante.49 If the Paris Court of Appeal finds that the decision is wrong, it will set aside the award. In this regard, it is important to note that the Court of Appeal does not go through a conflict-of-law analysis. Rather, it applies the so-called "méthode des règles matérielles", ie, a set of rules elaborated by French Courts for the purpose of international arbitration and applied to it. Among those rules are the principle of validity of the arbitration agreement in international matters and the rules governing the extension of the arbitration agreement to non-signatories.
90.
In essence, French courts take the view that a non signatory is bound by an arbitration agreement if it has participated i n the negotiation or in the performance of the contract in question.50 French courts require an analysis of the facts of the case.
91.
The Court of appeal of Paris applied this principle in the Suba case:51:

Considérant qu'il est donc établi que SUBA&UNICO a participé tant à la négociation qu'à l'exécution du contrat du 17 juillet 2005 liant SUBA France à PUJOL et qu'elle est donc directement impliquée dans cette exécution et dans les litiges qui peuvent en résulter ; qu'elle ne peut dès lors valablement soutenir avoir ignoré la convention d'arbitrage et ce, d'autant moins qu'elle affirme elle-même, dans un courrier qu'elle a adressé le 14 mai 2007 à PUJOL, intervenir depuis plus de 40 ans dans le secteur des semences potagères et qu'elle a été informée par cette dernière de ce qu'elle envisageait de recourir à la procédure d'arbitrage instaurée par la clause litigieuse dès Janvier 2007.

English unofficial translation: Considering that it is thus established that SUBA&UNICO participated both in the negotiation and in the performance of the contract of 17 July 2005 between SUBA France and PUJOL and that the company was thus directly involved in this performance and in the ensuing disputes ; that the company cannot succeed in arguing a lack of knowledge of the arbitration agreement, especially since it stated, in a letter sent to PUJOL on 14 May 2007, that it had been involved in the vegetable seed industry for more than 40 years and that it had been informed by [PUJOL] of its intention to resort to the arbitration proceedings provided for in the arbitration clause as early as January 2007.

92.
This decision followed the leading case of 2007, the so-called ABS case from the Cour de cassation:52

"Mais attendu que l'effet de la clause d'arbitrage s'étend aux parties directement impliquées dans l'exécution du contrat et les litiges qui peuvent en résulter; que la cour d'appel, qui a relevé que les deux sociétés françaises filiales de la société Amko étaient intervenues pour l'agrément par la société AME, des micro-processeurs électroniques, en a exactement déduit que ces sociétés étaient en droit de se prévaloir, à l'égard de la société ABS et de son assureur subrogé, de la clause d'arbitrage stipulée au contrat liant leur société mère à la société AME".

English unofficial translation: But considering that the effects of the arbitration agreement extend to the parties directly involved in the performance of the contract and to the disputes which can arise out of it; that the Court of appeals, which found that the two French subsidiaries of the Amko company had intervened regarding the approval of the electronic microprocessors by the AME company, has properly concluded that these companies were entitled to rely, with respect to ABS and its subrogated insurer, on the arbitration clause stipulated in the contract binding their parent company to AME.

93.
This solution was subsequently confirmed by the Cour de cassation in the 2012 Amplitude case:53

The effect of the international arbitration agreement stipulated in the initial contract [extends] to the parties directly involved in the performance of the contract.

94.
The crucial question for the Tribunal is therefore whether KGLPI has participated in the negotiation of the contract and in its performance to the point needed to trigger the extension of the clause.

2.3.2 Other laws

95.
The Parties have argued the position under Egyptian law, but Egyptian law, in the view of the Tribunal, could become relevant in the event of enforcement in Egypt only. Given DIPCO's (admitted) Financial situation, Doosan would most likely enforce the award against KGLPI in Kuwait or elsewhere where KGLPI has assets or receivables.
96.
In any event, the Egyptian Court of Cassation, in a 2004 decision (see §66 above) stated that extending the clause to non signatories would be justified in cases where a company took part in the execution of a contract or created confusion as to the party actually bound by an arbitration clause (Khatib petroleum Services International Co. v. Care Construction Co. and Care Services Co.):54

[...] Where one or the parties to a group of companies enters into an arbitration agreement, it does not prove that its mother company will be bound by the arbitration clause, unless one can establish that it took part in the execution of the contract OR created confusion as to the partyactually bound by the arbitration clause, in a manner that the will of one company may be mistaken for that of the other [...].

97.
Respondent 1 also argued that according to Kuwaiti laws, the validity of an arbitration agreement would require a "special power of attorney to decide an Arbitration, to arbitrate or to sign an arbitration agreement", which allegedly did not exist in the case of either Respondent. However, the Tribunal has held that French law applies to jurisdictional issues. Like Egyptian law, Kuwaiti law could only become relevant when it comes to the enforcement of the Award (in Kuwait).

2.3.3 Factual elements justifying extending the arbitration clause to KGLPI

98.
The criteria required under both the French and the Egyptian legal system are met in the light of KGLPI's intimate role in the negotiation (§§99 et seqq) and the performance of the Supply Agreement (§§109 et seqq) and in an attempt to settle the dispute (§§125 et seq).

2.3.3.1 Negotiation of the Supply Agreement

99.
KGLPI'S pivotal role during the negotiation of the Supply Agreement is illustrated by the following elements.
100.
First, KGLPI is the originator of the Damietta Port Project and DIPCO's largest shareholder.55 KGLPI created DIPCO specifically for the Damietta project.56
101.
As such, KGLPI's Chairman and Chief Commercial officer communicated about the project and their ambitions for the terminal to the press.57
102.
Further, KGLPI is a beneficiary of the concession granted by the Damietta Port Authority, before DIPCO's creation. In the Supply Agreement, the Parties have defined the term "Concession" as "the contract for construction and operation of a new container terminal in Damietta Port dated 8 May 2006 between the Damietta Port Authority, the Employer and KGL Ports International Company, as amended from time to time."58 Although DIPCO contends that KGLPI was replaced by DIPCO as a party to the concession agreement, DIPCO has not exhibited the concession agreement to demonstrate it.59
103.
Second, as indicated on the first page of the Tender Document, KGLPI, rather than DIPCO, prepared the Tender Document in 2006.60

- The Tender Document shows that KGLPI's employees were closely involved in the tender process. For instance, the Tender Document indicates: "Tenderers will be granted access to the Site during the tender period for the purpose of inspecting the Site, its facilities and the access thereto/therefrom. Tenderers should contact Dr. Ahmed Amin from KGL Ports International at Damietta Port in Egypt contact number +201 01516170 to make arrangements."61

- The "Instructions to tenderers" indicate that queries concerning the Tender Document should be directed to KGLPI.62

- KGLPI was initially listed as a party (the Employer) to the Contract Agreement sent to the tender participants63 and as the beneficiary of the contract's performance security.64

104.
Third, the letters of Tender, including Doosan's, were addressed to KGLPI, in accordance with the Tender Document.65
105.
Fourth, KGLPI's representatives conducted the negotiations with Doosan. As explained by Mr Jongsuk Park in his second witness statement:

[...] when we negotiated the Amendment Agreement in 2009, I recall that Mr. Sam Khatib intervened in the negotiation as a KGL employee to negotiate on behalf of DIPCO. On 21 July 2009, Mr. Khatib wrote to Mr. Choi of Doosan stating that, after their meeting of the same day, he would like to "summarize DIPCO's offer to solve the situation with Doosan." Mr. Khatib signed his email in the following way "Sam khatib -KGL Holding."66

106.
Fifth, the terms of the letter of acceptance sent by dipco (signed by Mr AL-Mazeedi, who was also KGLPI's chairman)67 to Doosan on 5 March 2007 (which is the Supply Agreement's effective date) shows KGLPI's central role:

- The LOA includes a caveat stipulating that KGLPI has the ability to cancel the LOA, thereby in effect overturning DIPCO's acceptance.68 As indicated by the Claimant,69 this tends to show that KGLPI was not merely acting on DIPCO's behalf during the negotiation phase, but on its own volition as a separate party involved in the contract.

- The LOA provides that any violation by Doosan of its confidentiality obligation will "automatically lead to LOA cancellation with no costs impact on KGLPI".70 The reference to KGLPI rather than to DIPCO shows its role in the contractual relationship.

107.
Last, KGLPI was the beneficiary of the Tender Security provided by Doosan, as requested in the instructions to Tenderers.71 The Tender Security, provided by the National Bank of Kuwait to KGLPI, indicates:

We have been informed that Doosan Heavy Industries & Construction Co., Ltd. [...] is submitting an offer for such contract in response to your invitation, and that the conditions of your invitation [...] require [t]his offer to be supported by a tender security.

[We] undertake to pay you [KGLPI] any sum or sums not exceeding in total the amount of USD 1,890,000 dollars".72

108.
Although DIPCO contends that KGLPI was acting as DIPCO's representative in the negotiation or the Supply Agreement,73 these elements reveal KGLPI's pivotal role in the contract's conclusion and, already, a certain level of confusion as to the respective roles between KGLPI and DIPCO in the contract's performance.74

2.3.3.2 Performance of the Supply Agreement

109.
The following elements, described by Doosan, show the extent of KGLPI's involvement in the performance of the Supply Agreement.
110.
First, the scope of KGLPI's role in the project was extensive, as described in the Tender Document:

[T]he Employer has appointed the Employer's Representative to carry out all port development activities under a separate management agreement. Accordingly, the Employer's Representative is responsible for all procurement related to the project construction / development.75

111.
Therefore, as "Employer Representative" (a role which, according to the Claimant, does not exist in the FIDIC Yellow Book),76 KGLPI was in charge of effectively all the project's development and could enter contracts with suppliers.77
112.
Illustrating the fact that KGLPI was considered a party to the Supply Agreement, on 16 April 2007, Doosan obtained a USD 20 million guarantee facility from HSBC. The guarantee facility indicates that it aims to "cover supply and installation of 14 gantry cranes to Egypt for KGL Port International of Kuwait. "78
113.
Second, the contract's payment mechanism was linked to certain actions of KGLPI. The LOA indicates that 30% of the price would be paid to Doosan under the Supply Agreement "upon issue by KGL PI of Taking Over Certificate" and a further 15%, constituting an advance payment, "will be payable with the issuance of a bank grantee [sic] by Doosan in favor of KGL PI for the same amount".79
114.
Third, as described by Claimant,80 the lines between KGLPI and DIPCO as distinct entities were blurred during performance of the contract.81 As a result, KGLPI's intentions could be mistaken for those of DIPCO's.82
115.
For example, DIPCO's representatives commonly used KGLPI's or its affiliates' letterheads, mail or email addresses to communicate with Doosan:

- A memorandum sent to Doosan in September 2007 describing the Damietta Port quays where the Cranes were to be offloaded was produced on the letterhead of Kuwait United Development ("KUD"), an affiliate of KGLPI, and the accompanying drawings listed KUD as project manager.83 As a result, Doosan corresponded in 2006 and 2007 with both KGLPI and KUD about the Cranes' shipment rather than with DIPCO.84

- Mr Jongsuk Park describes in his first witness statement the confusion arising from the fact that DIPCO's managers used KGL email addresses.85 For instance, Mr Bahbahani, DIPCO'S CEO, used email addresses of KGLPI or UITC (a company which is part of the KGL group), and Mr Alsarraf, DIPCO's technical director, used email addresses of KGLPI or IMC (a subsidiary of the KGL group). The same goes for Mr Khatib, Doosan's point of contact after 2012, Mr Al-Baghli, DIPCO's chairman, and a number of senior employees of DIPCO.86

116.
Further, as indicated by Captain Arlt during the hearing, his firm was required to send its reports, correspondence and invoices related to the Damietta Project to KGLPI.87
117.
DIPCO did not appear to have a dedicated email address or website and used the ones of KGLPI.88
118.
There was an overlap in personnel, with individuals involved in the project on DIPCO's Side acting simultaneously in managerial positions at KGLPI. For instance:

- Mr Albaghly served as chairman of both KGLPI and dipco.89

- Mr Al-Mazeedi acted as Chairman and CEO of DIPCO and KGLPI.90

- Mr Bahbahani acted as CEO of DIPCO, CEO of IMC and as Managing Director of UITC (both belonging to the KGL Group).91

- Mr Al Sarraf, acted as DIPCO's technical director and KGLPI's corporate technical director.92

- Mr All acted as KGLPI's corporate projects director and DIPCO'S project director.93

- Mr Al Baghli acted as KGLPI's vice-chairman and COO of KGLPI and as chairman of DIPCO.94

- Mr Khatib was director of business development at the KGL Group, and became, in 2009, a board member for DIPCO, appointed by KGLPI.95

119.
A level of confusion is likely to have ensued as to the distinction between KGLPI's and DIPCO's respective roles in the project.96 Mr Park comments in detail on this confusion:

I could not really tell what tasks KGLPI and DIPCO separately performed under the Supply Agreement. This is because I could not really tell when a person was acting as a KGLPI employee and when he was acting as an employee of DIPCO. As I mentioned in my First Witness Statement, most of the persons who worked on the Damietta Project were employees of both DIPCO and KGLPI and it was almost impossible for me to distinguish between their different capacities. For example, I knew that Mr. Khatib was a KGL employee but he was also significantly involved in the Damietta Port Project and in matters relating to the Supply Agreement. I understand that Mr. Khatib has emphasized in his witness statement that he acted as a board member of DIPCO when he was involved in the Damietta Project. However, his business card does not mention that he is board member of DIPCO and only says that he is a director. Even employees of DIPCO who did not officially hold any capacity in KGLPI used KGLPI email addresses. This is the case for Mr. Abdel-Khalek for example. Usually, when I start working on a project, there is a "kick-off" meeting where everyone is introduced, so that we can understand who is who and who is doing what. However, this did not happen for the Damietta Port Project.97

120.
Several discussions in relation to the Contract's performance took place between Doosan and KGLPI's representatives without DIPCO being present. For instance:

- In an email dated 19 November 2008, Mr Park (Doosan) wrote to Mr Ali (KGLPI-DIPCO) and Mr Alsarraf (DIPCO-KGLPI- IMC-UITC): "During the meeting in Kuwait on 12th of November, you confirmed that you would provide us with the final version of port construction schedule by 20th November. "98

- In a letter dated 15 December 2008, Mr Chung (Doosan) wrote to Mr Bahbahani (DIPCO-UITC-IMC): "[W]e, Doosan Heavy Industries & Construction Co., Ltd., hereby submit our letter of affidavit according to our previous corresponds [sic] and meeting result between KGLPI and Doosan. "99

- In a teleconference between Doosan and KGLPI on 9 July 2009 discussing Doosan's re-sale of the cranes, the minutes indicate that the only attendees were representatives of Doosan and KGLPI.100

- Mr Park also describes the role taken by Mr Khatib in the negotiations of the 2009 amendment "as a KGL employee".101

121.
KGLPI appeared to take certain strategic decisions alongside DIPCO (minutes of meetings indicate: "DIPCO/KGLPI and Doosan agreed...").102
122.
At times, KGLPI corresponded with Doosan on key issues of the contract's performance without DIPCO being mentioned.103 In particular, although the parties decided during a 9 July 2009 teleconference that DIPCO would provide an approval letter for the resale of the Cranes, Mr Jongsuk Park wrote to KGLPI Chairman Mr Albaghli that "after our conference call on last Thursday, KGLPI and Mr. Choi of our Kuwait branch had another meeting that afternoon. At the meeting, KGLPI confirmed that they will give us the approval letter for selling 4 STS cranes to 3rd party. "104
123.
DIPCO used KGLPI's offices for meetings with Doosan and KGL’s mail address for correspondence. For instance:

- A meeting between Doosan and DIPCO was set up "at KGL's offices in Rotterdam".105

- As explained by Mr Park, certain correspondence from Doosan dealing with key issues of contractual performance were sent to DIPCO at an address in Kuwait - for instance, a letter was sent on 15 December 2008 from Doosan to Kuwait, referring to the "previous corresponds and meeting result between Doosan and KGLPI"106 and a letter was sent on 16 April 2009 to Kuwait dealing with the damages incurred by Doosan to date.107

124.
The confusion between KGLPI's and Doosan's respective roles is illustrated by the fact that the company Portek issued a pre-shipment report in December 2008 "for Doosan and KGLPI", and, in May 2015, enquired to Mr Khatib whether he was "acting for DIPCO as their representative or as KGLPI? "108 During his cross-examination, Mr Khatic refuted any confusion on Portek's part and argued that the confusion was created by Doosan.109

2.3.3.3 Participation in the settlement discussions

125.
In 2015, Mr Khatib (KGLPI's nominee to DIPCO's Board of Directors), negotiated directly with Doosan to find a potential commercial settlement to the dispute. In particular, he sent Doosan an offer to settle the dispute from his KGLPI email address.110
126.
During his cross-examination, Mr Khatib indicated that his appointment to deal with Doosan resulted from a board resolution, which is not on record. Mr Khatib contended that he had made clear to Doosan that he was acting as DIPCO's board member, rather than a KGLPI representative.111 The Tribunal does not find this credible at all and the email itself does not indicate any of this. This seems to the Tribunal to be an ex-post facto explanation concocted for the purpose of the hearing.

2.3.4 Conclusion

127.
In light of the above, the criteria set by French law and the Egyptian 2004 Court of Cassation112 are met. First, KGLPI played a central role in establishing the contractual relationship. Second, KGLPI performed the Supply Agreement including the 2001 Amendment as a party to the contract rather than a mere representative of DIPCO. As a result, KGLPI's and DIPCO's intentions and respective roles were often indistinguishable.
128.
The Tribunal does not accept Respondents’ argument that the arbitration clause ceased to exist upon termination of the Supply Agreement. It is generally accepted that an arbitration clause survives the contract it is contained in;113 this is also reflected in Art 6(9) ICC Rules.
129.
The Tribunal therefore finds that is has jurisdiction over both DIPCO and KGLPI.

G. ON THE MERITS: THE PARTIES' FACTUAL ASSERTIONS AND LEGAL ARGUMENTS

1. Claimant's Position

130.
General: At the time the 2009 Amendment was negotiated, DIPCO had already promised Doosan a sizeable, immediate payment in advance of shipping the Cranes. DIPCO did this because it had already prevented Doosan from shipping the Cranes for delivery on the contractually agreed dates, the first of which was in July 2008. Those previously scheduled shipments and deliveries of the Cranes would have triggered, according to the Supply Agreement, a payment to Doosan of 70% of the total contract price. Given that DIPCO's own actions had interfered with that payment, dipco agreed in February 2009 to release an advance payment by the end of May 2009 in the amount of USD 32mio for the Cranes which should have been shipped by then. This commitment was even renewed in April 2009, after DIPCO had undergone a change in management.
131.
The commitment was not conditioned on anything hut was timed to coincide with the expected final agreement on compensation for certain unresolved deviations, what, however, was then superseded by the Respondents' continuously postponing the dates of expected delivery.
132.
On a general note, Respondents' arguments of force majeure and impossibility are misplaced as these should come at play only in the legal relationship between Respondents and the Damietta Port Authority ("DPA"), as Respondents alone have the contractual privity with the DPA that allows them to recover compensation for Whatever direct or indirect harm the DPA allegedly caused.114
133.
Breach: Claimant's principal case on the merits is that Respondents materially breached the Supply Agreement in two ways: (i) by falling to provide Doosan timely access to the Site, so that Doosan could ship, deliver arid install the Cranes (and receive payment for the work it had already done) in accordance with the Contract; and (ii) by falling to pay the two advance payments it had agreed to make in the 2009 Amendment, which were the advance payment of USD 51mio, and a payment of USD 9mio in the event that the KPA tender - as defined in the 2009 Amendment was not won by Doosan.115
134.
As a result of these breaches (or either one of them), the claimant was entitled to terminate the Supply Agreement for breach, in accordance with Sub-Clause 16.2 of the FIDIC General Conditions. Doosan is therefore entitled to the amounts authorized under Sub-Clauses 16.4 and 19.6 of the FIDIC General Conditions, to which Sub-Clause 16.2 cross-refers.
135.
Regarding Respondent 1's forcemajeure argument, a party seeking to invoke force majeure must, under Egyptian law, show that the alleged force majeure events were unforeseeable, and that they rendered performance of that party's obligations impossible. However, events of the type cited by DIPCO are hardly unforeseeable in the context of a construction contract - particularly in Egypt. Moreover, DIPCO's alleged force majeure events did not render performance of the Supply Agreement impossible.
136.
As to the 2009Amendment Agreement, i ts only purpose was to achieve three financial goals: (1) to reduce the contract price of the Cranes for DIPCO; (2) to relieve Doosan’s cash flow problems by providing for an interim payment for the Cranes; and (3) to relieve Doosan's cash flow problems by authorizing Doosan to sell certain Cranes to third-party buyers (while replacing them for DIPCO).
137.
Respondents' reading of the 2009 Amendment is untenable, and it is clear that: (i) the 2009 Amendment (see Clause 4(iii)) did not authorize Doosan to sell all the Cranes to third-parties; (ii) by introducing the term of a "financial close" in Clause 4(ii), ie, acceptance of DIPCO's new business plan by its lenders and shareholders, Doosan did not accept to suspend its right to any payments indefinitely; and (iii) Doosan, in relation to Clause 4(iii), never accepted to cancel the existing delivery schedule and leave the possibility of delivering the Cranes to Egypt to Respondents' absolute discretion.
138.
Article 5 of the 2009 Amendment Agreement explicitly provides that "all other terms and conditions of the Original Contract remain valid and enforceable without any amendment other than those stipulated under this agreement." Thus, key requirements such as DIPCO's obligation to provide Doosan with Site access were not altered by the Amendment Agreement.
139.
The only obligation that the 2009 Amendment links to the Financial Close is DIPCO's advance payment of USD 51mio to Doosan under Clause 4(ii). The Parties expected that the Financial Close would take place within the following month and that Doosan would therefore be required to deliver the remaining 10 Cranes starting April 2010, as anticipated in the Master Schedule that was in effect at the time.116
140.
The Parties considered the Financial Close not to be a condition but a term (ie, an event which occurrence was certain, although its precise timing was not). The clearest proof is the inclusion of an interest rate of 6.5% p.a. starting on 1 September 2009 until the agreed advance payment of USD 51mio would be made.
141.
Conditioning all of DIPCO's obligations under the Supply Agreement upon the Financial Close and DIPCO's providing a subsequent notice thereof would effectively transform all of the Respondents' obligations into "potestative" obligations, which are null under Egyptian law.117
142.
Doosan requested to be paid the amount of USD 9mio on the basis that the KPA project had turned to the delivery of new cranes, as opposed to Damietta Cranes the Parties had agreed on. Clause 4(v) of the 2009 Amendment provides that Doosan "shall participate as co-leader with KGLPI with regard to [the KPA] tender for the supply of STS Cranes" [emphasis added]. The first item of the recitals ("whereas") defines the term "STS Cranes" as the "14 ship to shore cranes" that Doosan was to supply to DIPCO under the Supply Agreement. Clause 4(v) goes on to state that "DOOSAN responsibility is limited to only supplying STS cranes to KPA as they are built under contract with DIPCO." Thus the amount of USD 9mio became due pursuant to the penultimate sentence of Clause 4(ii).
143.
As regards the timing of deliveries, it is a basic feature of FIDIC contracts that the Employer always has the right to suspend the Contract, and only needs to ask the Engineer to issue an official notice of Suspension to do so. However, whenever the Engineer orders the Contractor to suspend its Works, Sub-Clause 8.9 of the FIDIC General Conditions provides that the Contractor shall be entitled to compensation for all the costs incurred because of that Suspension and will be granted an extension of time. And if such suspension lasts for more than 28 days (and if the Contractor has marked the Plant and/or Materials as the Employer's property in accordance with the Engineer's instructions), then the Contractor is entitled to the payment of the value (as at the date of suspension) of all the Plant and/or Materials that have not been delivered to Site.
144.
But Clause 4(iv) of the 2009 Amendment did not cancel the existing delivery schedule. The purpose of Clause 4(iv) of the 2009 Amendment was to protect Doosan against unrealistic delivery dates - not to give Respondents a discretionary right to decide when (or whether) to request delivery of the Cranes. At the time the 2009 Amendment was negotiated, both Parties had a common understanding that Financial Close was going to take place before the end of August 2009.
145.
In fact, the Master Schedule communicated to Doosan in May 2009 projected that works on-site would resume on 30 August 2009 (ie, concurrently with the Financial Close) and that Doosan would then deliver a first batch of four Cranes in April 2010. Thus, when the 2009 Amendment was executed at the end of July 2009, Doosan had only eight months left to reserve shipping space on an appropriate cargo ship and otherwise organize the shipment of the Cranes to Damietta, which it felt would be insufficient, This is why Doosan insisted on including In the 2009 Amendment a provision requiring DIPCO to give Doosan at least nine months advance notice for any change in the existing delivery schedule of the first four Cranes. And since it would have to remanufacture at least four of the remaining Cranes to be delivered (the four that it was authorized in Clause 3 of the 2009 Amendment to sell to "a third party"), and since it required at least a year for such remanufacture, Clause 4(iv) required that DIPCO give at least twelve months advance notice for any new delivery dates of remaining Cranes.
146.
Termination: In its letter of 4 March 2016 Doosan wrote to DIPCO:118

As a result of DIPCO's consistent, serious and egregious breach of the Contract, and in particular of Clause 4(ii) Of the Amendments, in light of the cancellation of the Concession Agreement pursuant to Prime Minister's Decree No. 2799 of 2015, published on November 19, 2015, and in light of DIPCO's failure to remedy its breaches, Doosan hereby notifies DIPCO of the termination of the Contract, as pursuant to Article 16 of General Conditions of the Original Contract.

147.
This declaration was fully in line with sub-clause 16.2 of the FIDIC General Conditions, as DIPCO, as the Employer, had "substantially failed to perform its obligations" under the Supply Contract, as amended by not having payed the amounts foreseen in Clause 4(ii) of the 2009 Amendment in due time.
148.
Doosan had demanded payment already in its letter of 1st December 2009 when it wrote to DIPCO:119

For the subjected agreement, we would like to share our opinion with your esteemed company. We waited the financing close around 3 months upto now and It is already December of 2009. It means that USD 94,000,000 (USD 85,000,000 + USD 9,000,000) has to be remitted within 30 days beside the interest amount for USD 85,000,000. It is because KPA project is turned to new cranes subject to KPA requirement.

149.
Delivery Notice: Any "readiness notice" would have been superfluous, as it was Respondents who repetitively declared not to be ready for the transfer of the cranes and all over again sought a delay of delivery.
150.
Moreover, no such notice applies because the Supply Agreement qualifies as a "works contract," which is defined by Article 646 of the Egyptian Civil Code ("ECC") as a contract where "one of the contracting parties undertakes to do a piece of work or to perform a service in consideration for a remuneration which the other contracting party undertakes to pay." By contrast, a sales contract is defined by Article 418 of the ECC as "a contract whereby the vendor binds himself to transfer to the purchaser the ownership of a thing or any other property right in consideration of a price in money." In the present case, it is clear that Doosan did not simply commit to transfer the property of the Cranes to Respondents, instead, and as clearly stated in the Contract, it committed to "design, manufacture, testing, delivery, installation, commissioning and setting to work" of the Cranes.
151.
This distinction is further confirmed by Article 3(2) of the United Nations Convention on Contracts for the International Sale of Goods ("CISG"), to which Egypt is a party and which provides that the convention "does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services."
152.
Finally, on 7 November 2007, Doosan expressly notified Respondents of its intention to deliver its first batch of four Container Cranes on 30 June 2008; its second batch of two Container Cranes on 31 July 2008; a third batch of four Container Cranes on 27 September 2008 and its final batch of four Container Cranes on 21 December 2008.
153.
Mitigation: First and foremost, it would have been DIPCO's burden to show that there were mitigation opportunities that Doosan failed to pursue (quod non); DIPCO failed to carry that burden.120
154.
The main relevant provision of the ECC in relation to mitigation is Article 216 ECC, which provides that "[t]he judge may reduce the amount of damages or may even refuse to allow damages if the creditor, by his own fault, has contributed to the cause of, or increased, the loss." According to a leading scholar, a "fault" is defined as a conscious failure by any person to abide by its legal obligation to "behave with carefulness and prudence so as not to harm others."
155.
However, Article 216 must be read in conjunction with Article 221 ECC, which also bears on the concept of mitigation and provides that, in case of breach of contract, "[t]he amount of damages includes losses suffered by the creditor and profits of which he has been deprived, provided that they are the normal result of the failure to perform the obligation or of delay in such performance. These losses shall be considered to be a normal result, if the creditor is not able to avoid them by making a reasonable effort."
156.
Hence, Egyptian law does not refer to an "obligation" or "duty" to mitigate damages but rather adopts the concept of contributory fault.
157.
Yet, the vast majority of Doosan's claims are not "damages" flowing from a breach of contract but rather claims for payments for work performed (pursuant to Sub-Clause 19.6(a) of the FIDIC General Conditions) or for manufacturing costs as well as storage and maintenance costs incurred in the performance of the Contract (pursuant to Sub-Clauses 19.6(b) and 19.6(c) of the FIDIC General Conditions). These payments are due to Doosan in all cases, ie, even if the Respondents were found not to have breached the Supply Agreement.121 These payments would be duo to Doosan even in case the Supply Agreement had been terminated by the Respondents themselves (see Sub-Clause 15.5 of the FIDIC General Conditions).
158.
Accordingly, the only portion of Claimant's claims that is subject to a statutory requirement of mitigation are the amounts claimed pursuant to Sub-Clause 16.4(c) of the FIDIC General Conditions, which consist of "the amount or any loss of profit or other loss or damage sustained by the Contractor as a result of this termination." However, not even these sums represent damages flowing from Respondents' breaches of the Contract; rather, they represent damages flowing from the termination itself. Hence, and by definition, any requirement of mitigation with respect to these losses cannot have arisen before termination of the Supply Agreement.
159.
At no point did the Respondents expressly Indicate to the Claimant that the Damietta Project would never resume and that they would never be in a position to take over the Cranes. To the contrary, Respondents repeatedly represented to Doosan that discussions were ongoing with Egyptian authorities, shareholders, or lenders and that they remained committed to resuming the Project and that they would thus need the Cranes, Also, DIPCO repeatedly demanded that Doosan renew the advance payment guarantees and threatened to cash in the guarantees if Doosan failed to make such renewals.
160.
Against this background Doosan, as explained by Mr Park during the Hearing, economically faced a limited number of specific options and Doosan's decision not to resell the Cranes earlier than it did was more than reasonable:

- The first option was to wait for the Project to resume, as the Respondents represented would occur, so that Doosan could deliver the Cranes to Damietta and receive the full Contract Price. That was obviously the best option for Doosan, especially once the value of the Cranes had substantially depreciated. In that scenario, Doosan's only "loss" would have been the storage and maintenance costs it had incurred, plus eventually some foreign exchange losses. And even if Doosan did not succeed in obtaining compensation from the Respondents for this "loss", at least part of the loss would have been offset by Doosan's profit margin embedded in the Contract Price.

- The second option was for the Respondents themselves to sell the Cranes and then to pay to Doosan the full contract price. This was the second best case scenario, given DIPCO's precarious solvency, which meant that, initially, Doosan might have received only a portion of the contract price (corresponding to the resale price of the Cranes). But DIPCO would nevertheless have had an uncontested debt to Doosan for the remaining difference between the contract price and whatever amount it initially paid to Doosan, which Doosan could then enforce.

- The third option was for Doosan to sell the Cranes to one or more third parties at its own risk, pursuant to the authorization that the Respondents granted in September 2010, as recorded in the minutes of a meeting between DIPCO and Doosan. Whether this option held any attraction depended primarily on two factors: (i) the net price (ie, "net" of any modification and/or transportation costs) that Doosan could obtain from a third party for the Cranes at any given point in time and (ii) the anticipated schedule of delivery communicated by Respondents. The second factor was relevant, in part, because Respondents' authorization of third party sales was conditioned on Doosan's agreeing to remanufacture Cranes upon DIPCO's request without any additional compensation from the Respondents beyond the Contract Price.

Hence, once the resale price of the Cranes fell below Doosan's manufacturing costs (which was almost invariably the case from 2010 onwards), reselling the Cranes under this option would have resulted in a definite loss for Doosan (in the amount - at least - of the difference between the net resale price and Doosan's original manufacturing costs), which could have been compounded by an additional loss if the price of raw materials and labor had risen by the time Doosan was required to remanufacture new Cranes. In addition, certain timing issues had to be taken into consideration, as it takes approximately 12 months to build a new Crane. Hence, whenever Doosan received delivery schedules from the Respondents establishing delivery dates less than a year in the future, it could not sell its existing Cranes without taking the risk of defaulting on its commitment toward Respondents.

- Finally, one last option would have been to terminate the Contract at an earlier point and then sell the Cranes to third parties. But, as explained by Mr Park, this option would not be ideal even under the best of circumstances since it entailed significant risks. First, had Doosan terminated the Supply Agreement at any earlier point, it would certainly have faced DIPCO's call for liquidation of its advance payment guarantees. Second, the validity of Doosan's termination prior to Egypt's cancellation of the Damietta Port Concession would almost certainly have been legally challenged by Respondents. Third, Doosan would still have had to commence legal proceedings against Respondent to recover the difference between the resale price of the Cranes and the Contract Price (as it is doing now).

161.
DIPCO's argument at the Hearing was that Doosan should have chosen the third or fourth option. But, under each of those two options, Doosan was assured of incurring a loss (even if some of that loss might ultimately be compensated by DIPCO), and for that reason these options cannot be said to constitute mitigation. By contrast, under the first two options, Doosan had the potential of truly minimizing Doosan's losses, which is fully consistent with the principle of mitigation. In fact, if Doosan had sold the Cranes to one or more third parties from September 2010 onwards (or had terminated the Contract in the same period) and if the Project had subsequently resumed, Respondents might well have blamed Doosan for not waiting until the resumption of the Project. In this context, Doosan's decision to hold on to the Cranes in anticipation of the Project's resumption (a prospect that the Respondents continually entertained) was more than reasonable and cannot give rise to any sanction on the ground that Doosan failed to mitigate its losses.
162.
Moreover, the September 2010 Authorization gave Doosan a window of only four months (between October 2010 and February 2011) to sell up to six Cranes that it would then have to begin remanufacturing immediately. Yet, DIPCO fails to identify any attractive sale opportunity that Doosan ignored in that short period of time (although it is DIPCO's burden to demonstrate that Doosan acted unreasonably by falling to sell the Cranes earlier to a third party). And the reason for such failure is simple: There were no such opportunities.
163.
In Clause 4(1) of the 2009 Amendment Doosan had agreed not to claim from the Respondents losses resulting from third party sales. This concession was strictly limited to the "Disposal Cranes" that Doosan was permitted to sell under Clause 3 (ie, the tour Cranes that were ultimately sold to a company "HPH"122). Doosan accepted this condition on these limited terms because, at the time when the 2009 Amendment Agreement was signed, Doosan had been lucky enough to find a buyer willing to purchase the Cranes at a price of USD 8.5mio per Crane, which essentially matched the original price under the Supply Agreement. Doosan thus had no problem accepting DIPCO's strict terms and proceeding with the sale of four Cranes to HPH in August 2009. Yet, this does not mean that Doosan gave a blanket agreement to sell all Cranes authorized by Respondents irrespective of the prevailing financial conditions at the relevant time.123
164.
Finally, even if Doosan had been subject to a duty to mitigate, the doctrine does not require that it absorb such losses simply to shield the Respondents from their own liability.124
165.
oreseeability: To begin with, most of the amounts claimed by Doosan are not strictly speaking "damage" but payments for work performed and/or costs incurred so that the concept of "foreseeability" of damages could not apply.125 Furthermore, it is DIPCO's burden to demonstrate that these "damages" were not foreseeable at the time of contracting. DIPCO does not remotely discharge its burden of proof.126
166.
In any event, it was more than foreseeable that the Respondents' failure to give Doosan timely access to the Site occurred when the Container Cranes were already fully manufactured and largely erected and that DIPCO’s repeated directives to Doosan to postpone the shipment of the Container Cranes would cause Doosan to store the Container Cranes in Korea and thus incur storage and maintenance costs. It was also more than foreseeable that Respondents' failure to give Doosan timely access to the Site would give grounds to Doosan to terminate the Contract for material breach and thus claim for the Cranes' manufacturing costs, as expressly contemplated in Sub-Clauses 16.2 and 19.6 of the FIDIC General Conditions.127
167.
Advance Payment Guarantee: For Claimant, there is no dispute that it must repay the Advance Payment to Respondents following termination of the Supply Agreement (as amended). But such repayment does not result from a retroactive termination of the Contract, but from the text of Sub-Clause 14.2 of the FIDIC General Conditions (as amended by the Parties), which provides that "in the event of the Contract being terminated under Clause (...) 16 hereof the Employer may deduct the balance of the Advance Payment outstanding from any monies due or which may become due to the Contractor [...]."128
168.
On that basis, Doosan has already deducted the amount of the Advance Payment it received from its total claims. However, because the amounts owed by Respondents to Doosan greatly exceed the amount of the Advance Payment, Doosan is still entitled to a substantial net payment from Respondents.129
169.
Claimant therefore seeks declaratory relief in that Respondent 1 and/or Respondent 2 are not entitled to any repayment, partially or wholly, of the advance payment provided to Claimant of USD 18.4mio.

2. Respondents' Position

No delivery Notice

170.
Egyptian law defines delivery in Article 435(1) ECC as "Delivery is made when the sold (product) is put under the disposition of the buyer in such a way to be able to possess it and benefit therefrom without impediment, even if he does not acquire it physically as far (provided that) the Seller informed him of that. "130
171.
Neither before August 2008, when the first delivery of six cranes was due, nor afterwards Doosan proved or even declared or notified DIPCO that any Cranes were at any time duly, fully or even partly, manufactured without manufacturing defects or deviations, and never declared and notified DIPCO that the Cranes are ready for delivery.131
172.
Admittedly, Doosan undertook to design, execute and complete the works, and such a job description qualifies under Egyptian law as a works contract. Yet this would not exempt Doosan from conveying a formal notice under either the CISG or the ECC.132
173.
Article 3 of CISG sets out two conditions to exclude its applicability on the supply of goods as sales:

(1) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production.

(2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services.

174.
Neither did DIPCO supply any substantial part of the materials necessary for manufacture or production of the cranes nor did "the preponderant part of the obligations of the party who furnishes the goods consist in the supply of labour or other services" so that the Supply Agreement will be treated under the CISG as a sales contract.
175.
In the alternative, when applying the provisions of the ECC, the qualification of the Supply Agreement as a contract for works under Article 646 automatically leads to the application of Articles 655 seq of the ECC which states:133

When the contractor accomplishes the work and puts it under the disposition of the Employer, the Employer should initiate to receive it as soon as possible as under the current custom in transactions. If he refrains without a legal reason from the receipt in spite of being requested to do so by an Official Notice, the work would be deemed as delivered to him.

176.
The delivery of an official notice requires the service of the notice by the official bailiff, an employee of the Egyptian Ministry of justice pursuant to Egyptian Civil and Commercial Procedural Law (ECCP). Article 6 ECCP expressly stipulates:134

Every notice or enforcement (execution) will be served by the bailiffs: upon the request of an opponent, the courts secretariat or by order of the court. The opponents or their attorneys will guide the procedures and present the papers to the bailiff to be served or enforced, all of the same unless the law stipulates otherwise. The bailiffs will not be responsible but for their mistakes in conducting their jobs.

177.
Article 19 ECCP further warns that "Annulment will be the result of not respecting (considering) the dates and procedures stated in, inter alia, Article 6."135

Deviations

178.
Portek Systems & Equipment Pte Ltd ("Portek"), who was retained to review and inspect the Container Cranes, identified 80 technical deviations From the contract specifications.136 Some of these deviations appear to have been minor - and DIPCO accepted them - but others were of a more serious nature and had to be rectified. The parties discussed the technical deviations in late 2008. The meeting minutes reflect that Doosan had purportedly corrected a number of these deviations (which needed to be inspected and confirmed by Portek), had agreed to pay compensation on two of the items, and that DIPCO accepted nine others. These minutes further reflect that there were several dozen outstanding deviations that remained to be rectified and Doosan's commitment to do so at its own expense.
179.
The parties continued to discuss Doosan's obligation to fix the deviations in late 2008 and into 2009, with the understanding that the corrections would be paid for by Doosan or would offset Doosan's claims for delay. However, it is undisputed that Doosan never fully rectified this list of deviations, many of which included issues of fabrication.137
180.
Any payment obligation of DIPCO was only "on condition that the works should be in accordance with the specifications and the conditions agreed upon "irrespective of the nature of the deviations confessed by the Claimant itself, but then Doosan tries to undertone its shortcomings by referring to the deviations as "of minor significance".138
181.
Egyptian Law imposes strict duty on the Contractor to show that the works are in accordance with the agreed upon specifications before it expects the Employer to accept and thereby receive the work.139

Force majeure140

182.
DIPCO's management team worked diligently to achieve the financial close following the 2009 Amendment despite continual frustrations beyond DIPCO's control which were insuperable. These efforts were initially stymied by actions of the Egyptian government (in particular, by requesting exorbitant fees) and were later thwarted by the political upheaval following the revolution in early 2011.141
183.
DIPCO's shareholders were put in an untenable position as the financial close was delayed and the entire circumstance was driven by the conduct of the DPA and MOT after their differences with DIPCO appeared to have been resolved in May 2009.142

Impossibility

184.
The events described in the context with force majeure also qualify as impossibility for Respondents to perform the Supply Agreement and the 2009 Amendment.
185.
For this kind of situations, Art 159 of the ECC provides:143

In bilateral agreements, if an obligation lapses due impossibility of performance the opposing obligations would lapse as well and the contract would be terminated by itself."

186.
And Art 165 ECC states:

If a person proves that the damage was caused by a foreign cause not related to him, as a sudden accident, force majeure, the mistake of the injured or the mistake of another (third party), he will not be responsible to compensate that damage unless a provision or an agreement stipulates otherwise.

187.
Art 215 ECC states:

In case of the debtor's impossibility of performance or an obligation in kind (in rem) he will be adjudged to compensate due non performance, save where the debtor establishes that non performance was due a foreign cause not related to him, and the same will be in case of delay in the performance of his obligation.

188.
The ECC and the 2009 Amendment therefore collectively demand that the Supply Agreement had terminated without any existing obligations of payment on DIPCO, and Sub-Clause 19.7 of the FIDIC General Conditions has no relevance in placing any liability on Respondent 1 in the alternative to Sub-Clause 16.4 in such circumstances.

2009 Amendment Agreement

189.
In essence, by signing the 2009 Amendment, Doosan agreed to share the risk of the delay with Respondents whether and when a delivery of the Cranes would be possible. In return for the Project hopefully moving forward and the ability to sell Container Cranes in the interim and, thus, to generate liquidity, Doosan

(i) offered a 2% discount on the total contract price

(ii) accepted to condition any future payment under the Supply Contract upon the occurrence of the Financial Close;

(iii) accepted to cancel the existing delivery schedule for the Cranes and to leave the schedule to be determined by DIPCO’s discretion; and

(iv) took sole responsibility for reselling the 14 ordered Cranes to third parties so that it could improve its cash flow situation, while agreeing to timely remanufacture new Cranes, at DIPCO's request and at the original price, and without claiming any compensation from Respondents in case the third-party sales resulted in a loss for Doosan.

190.
DIPCO's obligations were suspended until Financial Close. "The 2009 Amendment is express not that financial close is a prerequisite for the 2009 Amendment itself, but for payment obligations to arise. "144 And the exercise of Doosan's wish to sell Container Cranes to a third party was conditioned on Clause 4: "The Parties agree that the exercise of Doosan to the option referred to in Clause 3 above is conditional upon the following [...]".145
191.
As regards the wording of the third sub-paragraph of Clause 4(ii) of the 2009 Amendment, the principal (the capital) was conditioned on financial close, and the interest was to be calculated on the "due amounts". Until the amounts were due, no Interest could be due either.146 Claimant wants to rely on the minutes of the 1 September 2010 meeting to indicate that interest was due regardless of the occurrence of the financial close.147 But those minutes also expressly recorded that "DIPCO and DOOSAN agreed to following payment in case financial close is at 01-nov-2010[,]"148 not regardless of it.
192.
The "financial close" mentioned in Clause 4(ii) is a (suspensive) condition. The distinction between a condition and an - albeit indefinite - term under articles 265 and 271 of the ECC is between a "future and uncertain event" and a future certain event where the latter is "considered to be certain if it must happen of necessity even if at the time at which it should happen is unknown." Whether something "must happen by necessity" is not a question of the parties' perception.149
193.
Moreover, the amount of USD 9mio under clause 4(ii) never fell due for two further reasons: First, there is an obligation on DIPCO to pay USD 9mio solely on the occurrence of the KPA tender not being won by Doosan, but Doosan won that tender and supplied cranes under a contract with KPA. Second, in clause 4(v) Doosan agreed to cooperate with DIPCO and KGLPI in future sales activities in general and in the specific KPA tender, what clearly occurred since Doosan supplied those cranes.150
194.
The lack of Financial Close was not attributable to DIPCO as DIPCO's new management team worked diligently to address the requirements under a USD 480mio Facility Agreement with a lending consortium led by Ahli United Bank ("AUB consortium"), developing a two-phased construction plan to reduce the cost overruns151 while DIPCO's shareholders committed to injecting over USD 140mio in additional funds. However, as DIPCO informed Doosan, the AUB consortium also required the government formally to approve the two-phased construction plan and a further extension to the opening date before Financial Close could be achieved.152 DIPCO's management team began discussions with DPA to obtain this letter. However, to their surprise, DPA linked this approval with an additional demand that DIPCO pay further penalties.153
195.
Moreover, the then appointed Minister of Transport interfered in DIPCO's negotiations with DPA and refused to provide an extension "unless DIPCO agreed to pay incredibly high costs and other harsh conditions." These new conditions would have made the Project financially infeasible and would have made it impossible to secure financing.
196.
Then, a few weeks later, the Arab Spring came to Egypt. As it transpired, this effectively ended DIPCO's ability to obtain financial close.154 And that failure was not a foreseeable outcome.

No proper termination

197.
Article 221 of the ECC grants only the judge or the arbitrators the sole and exclusive authority and right to terminate agreements and to assess the due compensation, if any. Thus Doosan should have requested a court or an arbitration tribunal to implement or terminate the Supply Agreement and the 2009 Amendment with the argument of DIPCO’s fault or default, if any, and in both cases it had to serve a Notice on DIPCO to give DIPCO the chance to abide by and implement the agreement by waving its default, if any, and to avoid the termination with compensation, if due, or to find any other solution, and to allow the arbitrators or the judge to decide termination or not.155
198.
Moreover, Doosan could only have requested to implement the agreement by requesting its performance in kind under Article 203 or Article 209 of the ECC or against compensation, if justified under Article 215 respecting Articles 216, 218, 219 and in particular Article 221 of the ECC.156
199.
Should the foregoing not apply, Doosan's termination still failed to comply with the procedure established in the Supply Agreement157 and Doosan did not follow the steps prescribed by Sub-Clause 16 of the FIDIC General Conditions prior to terminating the Agreement: Doosan neither applied before or in the process of such termination the related required procedures under Sub-Clause 14.6 (Issue of Interim Payment Certificates], Sub Clause 14.7 [Payment], Sub-Clause 14.8 [Delayed Payment] or else of those required conditions precedent to apply said Article 16, nor served the obligatory Notices there under (Notice of Suspension and Notice of Termination) and thereby none of the events under Sub-Clause 16.2 of the FIDIC General Conditions [Termination by contractor] did occur or was satisfied to enable Doosan to justify its application of this Sub-Clause 16 either to terminate the Supply Agreement or to base upon the quantification of any damages.158
200.
Sub-Clause 16 of the FIDIC General Conditions provides for:

If the Engineer falls to certify in accordance with Sub-Clause 14.6 [Issue of Interim Payment Certificates] or the Employer falls to comply with Sub-Clause 2.4 [Employer's Financial Arrangements] or Sub-clause 14.7 [Payment], the Contractor may, after giving not less than 21 days’ notice to the Employer, suspend work (or reduce the rate of work) unless and until the Contractor has received the Payment Certificate, reasonable evidence or payment, as the case may be and as described in the notice.

201.
Only and only then,

The Contractor shall be entitled to terminate the Contract if:

(a) the Contractor does not receive the reasonable evidence within 42 days after giving notice under Sub-Clause 16.1 [Contractor's Entitlement to Suspend Work] in respect of a failure to comply with Sub-Clause 2.4 [Employer's Financial Arrangements], [...]

202.
Furthermore, Doosan declared termination of the Contract, as pursuant to Article 16 of the FIDIC General Conditions of the Original Contract." Doosan did not specify what Sub-Articles of said Sub-Clause 16 it relies upon for such a termination, as none of the reasons of termination under Sub-Clause 16 of the FIDIC Conditions seemed to apply.
203.
None of the events allowing for a Termination by Contractor pursuant to Sub-Clause 16.2(a) FIDIC Conditions had occurred. In particular, Sub-Clause 16.2(d) is not applicable as no substantial or any other failure or breach of the Employer was claimed or a related Claim Notice issued by Doosan to the Engineer in that respect as stipulated for in the Sub-Clause 20.1 [Contractor's Claims] or else of FIDIC Conditions and Doosan never quoted any. Sub-Clause 16.2(f) does not apply as no prolonged suspension under the FIDIC Conditions existed.
204.
And, in all cases Doosan neither served the 21-days notice to suspend work under Sub-Clause 16.1 or the 14-days notice under Sub-Clause 16.2 second paragraph before terminating the Contract. The communications Doosan is referring to cannot be construed as notices in accordance with neither the applicable law nor any of the provisions of the FIDIC Conditions.
205.
To sum up, Doosan never applied the provisions of the applicable law or the FIDIC General Conditions, either to serve the notices or otherwise, it never issued to the Engineer any Notice for a Taking-Over Certificate as under Sub-Clause 10.1 of the FIDIC General Conditions.159 No Performance Certificate was issued by the Engineer to Doosan as under Sub-Clause 11.9 of the FIDIC General Conditions, noting that under this Article only such a Performance Certificate shall be deemed to constitute acceptance of the works. No Taking-Over Certificate was issued to Doosan. No Applications by Doosan for Interim Payment Certificates existed or were presented by Doosan for costs of work done as under Sub-Clauses 14.3 and 19.6 of the FIDIC General Conditions. No Statement of Completion was ever submitted by Doosan to the Engineer under Sub-Clause 14.10 of the FIDIC General Conditions, and most importantly, no notice of any claim has been presented by Doosan to the Engineer describing any breach of DIPCO or describing that Doosan issued any Additional Cost Notice or Certificate as a result of any unreasonable delay by DIPCO in permitting access to the works or plant (Site) as under Sub-Clause 12(4) of the FIDIC General Conditions, and no Contractor's notice of a Claim what so ever for any additional payment under any clause of the FIDIC General Conditions or otherwise in connection with the Supply Agreement has been given to the Engineer not later than 28 days after Doosan become aware, or should have become aware, of the event or occurrence that caused such an additional payment, noting that without such a claim Doosan (the Contractor) shall not be entitled to any additional payment and without such a notice DIPCO (the Employer) shall be discharged from all liability in connection therewith as all are under first paragraph of Sub-Clause 20.1 of the FIDIC General Conditions.

No mitigation

206.
Doosan’s primary objective in negotiating the 2009 Amendment was to secure the ability to sell the Container Cranes in the interim period before the hoped-for financial close. But Doosan did not act in good faith after the 2009 Amendment as it was at liberty to sell the Container Cranes but did not.
207.
Under Article 148(1) of the ECC "[a] contract must be performed in accordance with its contents and in compliance with the requirements of good faith. "160
208.
Doosan's responsibility to sell the Container Cranes is reflected in Clause 4(iii) of the 2009 Amendment, which requires Doosan to produce and supply "Replacement Cranes" for any Cranes sold. However, Clause 4(iii) goes on to state that this replacement obligation "shall automatically include any other number of STS cranes which DIPCO might expressly permit DOOSAN to sell to third parties at a future date..." Thus, the parties expressly anticipated the possibility that fill the Container Cranes could have been sold by Doosan.
209.
Clause 4(iii) does not say anything about the price of any Container Cranes sold, nor does it contemplate that DIPCO dictate the price, DIPCO's primary concern in negotiating the 2009 Amendment only was that replacement cranes would ultimately be made available, if needed, at no additional cost for DIPCO.
210.
Even more, in June 2010 DIPCO terminated the facility agreement with the AUB consortium, which meant that DIPCO no longer had to seek approval from its lenders before Doosan could sell the Container Cranes (this approval process had been an impediment in the sale of four Container Cranes that occurred in 2009).161
211.
By not making reasonable efforts to sell the ten remaining Container Cranes in a timely manner (despite their deviations from the Supply Agreement specifications, there was a market for them, as demonstrated from the sale of four to HPH Panama in 2009), Doosan piled up over six years of alleged costs related to, inter alia, storage and maintenance of the cranes. Ultimately Doosan waited until 2016 to sell the cranes at a fire sale price of just USD 16mio. As DIPCO has demonstrated, selling the cranes for the price on two different occasions in 2013 would have netted Doosan USD 46.6mio, thus drastically reducing any damages claim.162
212.
Thus, most of the amounts claimed now could have been avoided or reduced if Doosan had sold more of the Cranes to third parties at an earlier time or had terminated the Supply Agreement at an earlier date.163
213.
Foreseeability: Article 221(2) ECC states that "a debtor who has not been guilty of fraud or gross negligence will not be held liable for damages greater than those which could have normally been foreseen at the time of entering into the contract. "164 The events which overtook contract performance in this case could not have been foreseen at the time the Supply Agreement was executed between DIPCO and Doosan. Indeed, the events following the summer of 2009 in particular could not have been foreseen. Doosan's costs effectively appear to be for maintenance of the Container Cranes and work stoppage over a period of years in circumstances which were entirely unforeseeable even from the summer of 2009, as Egypt's political situation unravelled in unprecedented ways.165

The actions of the Egyptian government following the Amendment, which repeatedly stymied financial close, followed by the political upheaval in Egypt in 2011, eventually resulted in the failure of the Damietta Project. This failure was not a foreseeable outcome.166

Advance Payment Guarantee

214.
DIPCO's request to cash the Advance Payment Bank Guarantees took place only when Doosan, till the last day of validity of these Bank Guarantees, did not renew either's validity on its expiry date and did not repay to DIPCO the amount of the advance payment, when it terminated the Supply Agreement.167
215.
Even under Sub-Clause 14.2 of the FIDIC General Conditions the advance payment is linked to the opposing Bank Guarantees and thereby Doosan may not refuse both to extend the Bank Guarantees validity and/or not return the advance payment. Even more, the 4th paragraph of Sub-Clause 14.2 of the FIDIC General Conditions states that "the contractor (Doosan) shall ensure that the guarantee is valid and enforceable until the advance payment has been repaid.168
216.
Once Doosan terminated the Supply Agreement it made it "as never existed" and thereby had to restore DIPCO to its position before such an agreement by returning the advance payment.169
217.
The Bank Guarantees were issued by the issuing Bank to guarantee only the repayment of the advance payment upon first request and irrespective of the relationship between Doosan and DIPCO and definitely not to guarantee any obligations of DIPCO towards Doosan. They constitute an independent, personal undertaking of the issuing bank that is not a party to this Arbitration and its undertaking may not be adjudged in this Arbitration and shall "totally remain out of the scope of this Arbitration and the jurisdiction of the Tribunal," especially as a court case in relation to these Bank Guarantees was filed in Egypt by DIPCO against the issuing Bank before Doosan started this Arbitration and this court case is still proceeding at this moment in Egypt by its natural judge and jurisdiction.170

3. Tribunal's Determination

No delivery notice

218.
As a first step, the Tribunal had to examine whether, as argued by Respondents, it was Doosan who defaulted on a delivery of the Cranes by not serving on DIPCO a formal delivery notice.
219.
The evidence clearly shows, and it even remained undisputed by the Parties, that DIPCO was in no position to grant access to the Site where the Cranes were to be delivered and erected and that DIPCO recurrently requested to postpone these deliveries and, ultimately, could no more factually take over the Cranes after the Damietta Port concession of KGLPI had been withdrawn.171
220.
The Tribunal does not deem it necessary to examine whether the statutory provisions regarding a formal delivery notice under the ECC Respondents have referred to are of a mandatory nature or not because they will not apply to a situation where the recipient of performance has explicitly stated not to accept performance and, even more, where the Parties subsequently and repeatedly agreed on new dates of performance and also entered in an agreement to adapt the underlying contract (the Supply Agreement) to the new circumstances resulting from the non-acceptance by DIPCO of the Cranes, as can be seen from the 2009 Amendment. It is hard to image a more explicit written confirmation of the cause of the non-delivery.
221.
Remains the fact that the first set of cranes ready for delivery showed some technical "deviations" that might have qualified as an argument of DIPCO not to accept delivery (or to request repair works or a certain reduction of the price reflecting the value of rectification).
222.
The Tribunal is of the view that these "deviations" became irrelevant relative to the non-acceptance by DIPCO of the Cranes. It is the time of takeover by the recipient when goods to be delivered (or installed) shall be free of defects. Thus, if parties agree to postpone a delivery the test whether the goods conform with the contractual terms and conditions will be also delayed until actual takeover.
223.
This finding conforms with the intention the Parties had at that time as they agreed to settle the "deviations" in the context with payments which, indeed, would fall due under the original agreement upon delivery only, Moreover, no dispute arose over this issue which the Parties apparently did not raise before the present proceedings started.
224.
Therefore, the Tribunal does not follow Respondents' argument that it was Claimant who defaulted in delivery.

Termination of the Supply Agreement, as amended

225.
Claimant has based the termination of the agreement on two arguments which were (i) not having been granted access to the Site, and (ii) due payments not having been made. Both events were presented as individual breaches of the agreement so that the Tribunal does not need to examine both of them.
226.
For the Tribunal, the non-payment of USD 9mio (see §253 below) is a sufficient reason to decide that there was a breach by Respondent 1 under the Supply Agreement, as amended by way of sub-clause (ii) in conjunction with sub-clause (v) of the 2009 Amendment. This amount fell due when the KPA tender resulted in the delivery of other cranes and the negative (suspensive) condition of not selling "STS Cranes" to the Kuwait Port Authority was met and Doosan requested payment from DIPCO on 1 December 2009.172
227.
Thus, DIPCO owed Doosan USD 9mio as of 1 January 2010, at the latest, in accordance with sub-clause 4(ii) of the 2009 Amendment.
228.
Respondent 1 has argued that Doosan could only have requested to implement the agreement or receive payment from DIPCO with the assistance of the Egyptian competent court. This procedural requirement, however, does not appear to be of a mandatory nature as can be seen from Respondent 1's quote of Article 218 ECC173 and Article 219 ECC,174 which read:

Article 218

The compensation shall not be due unless after notice to the debtor, if not otherwise stipulated for (emphasis added).

Article 219

The notice to the debtor shall be by warning him or by what may substitute the warning, service of the warning may be effected by mail as stipulated for by the Procedural law, or according to an agreement thereby the debtor will be considered as noticed by occurrence of a term without the need for any other procedure.

229.
The Supply Agreement (as amended) and the FIDIC General Rules are "stipulations" or "agreements", respectively, which do not provide for such kind of a judicial notice.
230.
Respondents also argued that Doosan's termination still failed to comply with the procedure established in the Supply Agreement175 and by Clause 16 of the FIDIC General Conditions prior to terminating the Agreement. The Tribunal is of the view that Doosan was entitled "to terminate the contract" under Sub-clause 16.2 (what it did by way of its letter of 4 March 2016),176 if the Employer "substantially falls to perform his obligations under the Contract" (which was the non-payment of USD 9mio).
231.
Contrary to Respondents' belief,177 the procedures under Sub-Clauses 14.6 [Issue of Interim Payment Certificates], 14.7 [Payment] and 14.8 [Delayed Payment] of the FIDIC General Conditions were not applicable because these procedures would apply to amounts for work performed whereas Claimant's request for payments did relate to amounts owed pursuant to clause 4(ii) of the 2009 Amendment which were not for evaluating work performed and, thus, not linked to the involvement of an Engineer.
232.
The consequences of the termination for cause (breach of the 2009 Amendment by DIPCO) under the provisions of ECC i n conj with the FIDIC General Rules will be addressed in the section on the Quantum (§§327 et seqq below).

Force Majeure; Impossibility

233.
In the view of the Tribunal, neither force majeure nor impossibility come at play. The reason is that Claimant, rightfully, based the termination of the Supply Agreement (as amended) on DIPCO'S default in payment of the amount of USD 9mio, as provided for in Clause 4(ii) of the 2009 Amendment. This is in conformity with Doosan's termination letter178 when Doosan made reference to "DIPCO'S consistent, serious and egregious breach of the Contract, and in particular of Clause 4(ii) of the Amendments " (emphasis added).
234.
However, force majeure and impossibility never are an excuse for defaulting on payments. Sub-Clause 19.2 of the FIDIC General Conditions expressly states that "Force Majeure shall not apply to obligations of either Party to make payments to the other Party under the Contract."
235.
Respondents referred to the general provision of Article 165 ECC which states:179

In bilateral contracts, if an obligation is terminated because of impossibility of its implementation, counter-obligations shall also be terminated, and the contract shall be rescinded by itself.

236.
The Tribunal, however, does not believe that such impossibility would also refer to a money debt, following the general legal concept that a debtor may not plead impossibility because of not owning the necessary funds (inapplicability of an exceptio non habendi pecuniae).
237.
Moreover, the factual situation - albeit not explicitly - underlying the 2009 Amendment was that the Respondents were not able to provide for Doosan's access to the Site and to attain the necessary funds to pay the purchase price of the Cranes. This can be clearly seen from the option granted to Doosan to sell cranes which otherwise should have been delivered to and erected at the Site of DIPCO and, in addition, from DIPCO's continuing right to be delivered with the original number of (possibly re-manufactured) Cranes should DIPCO, later on, be in a factual situation to acquire them (Clause 5 of the 2009 Amendment). In legal terms, the Parties had amended the Supply Agreement in such a way that the events that might have constituted force majeure and/or impossibility for Respondents were factored in and dealt with so to admit delay.
238.
This is in line with Article 215 ECC as quoted by Respondents:180

If a person proves that the damage was caused by a foreign cause not related to him, as a sudden accident, force majeure, the mistake of the injured or the mistake of another (third party), he will not be responsible to compensate that damage unless a provision or an agreement stipulates otherwise.

239.
In the view of the Tribunal, the 2009 Amendment is such an agreement where the Parties, in light of the events occurring in the sphere of Respondents, agreed "otherwise".
240.
Moreover, the Parties have agreed in the Supply Agreement to apply the FIDIC General Rules which, by and large, are a different set of stipulations and, thus, have priority over Art 165 ECC (whatever its correct application and interpretation might be).
241.
The FIDIC General Rules are clear as regards the consequences of force majeure and/or impossibility (for details see the section on the Quantum under §§327 et seqq below).

2009 Amendment Agreement

242.
To start with, the recitals of the 2009 Amendment refer a common Intention of the Parties which, in the essence, was for DIPCO not to relinquish "any of its rights arising out of the Original Contract" and for Doosan to sell to a third party six STS Cranes which actually were due under the original contract to be supplied to DIPCO. Although no reference is made in the 2009 Amendment to DIPCO's requests for postponing the delivery of the Phase 1 Cranes, the meaning of the recitals is clear in light of the antecedents of the 2009 Amendment: Doosan had on stock ten cranes ready for delivery which DIPCO had ordered but was not in a position to take into charge, and Doosan was not entitled under the original contract to payments, beyond the original advance of USD 18,4mio, because further payments were tied to the delivery of these Cranes.
243.
Thus, an economic solution evidently consisted in selling to third parties these Cranes which were ready for shipment but of no use for an uncertain time, on the one hand, and in manufacturing replacement cranes for DIPCO as soon as DIPCO would be ready for delivery, on the other.
244.
The amendment was structured as an option of Doosan (Clause 3: "may sell"; Clause 4: "option"), what made sense as the economic rationality to sell these so-called "Disposal Cranes" would depend on the terms and conditions offered by third parties, on the one hand, and the later manufacturing costs of the so-called "Replacement Cranes," on the other. Therefore, Doosan was free to decide whether to sell Disposal Cranes, but had to bear the extra costs connected with such sales (sub-clause 4(i)).
245.
The economic conclusion therefore is that both sides wanted to find a way to avoid financial disadvantages resulting from the Disposal Cranes being an idle asset deteriorating in quality end up-to-dateness and causing costs of maintenance and storage. In addition, the sale of the Disposal Cranes was meant to create an earlier cash-flow for Doosan.
246.
From a mere economic perspective, both sides must have found the 2009 Amendment to be in their interest at that time, as the postponement of delivery created financial risks on both sides. Its content, in the words of witness Park, corresponded with the "third solution" of the dilemma (see §160 above). It is against this background that the Tribunal had to interpret Clause 4 of the 2009 Amendment.
247.
Clause 4 begins with the words that "the exercise of DOOSAN to [sic] the option referred to in Clause 3 above is conditional upon the following." The meaning is clear for the Tribunal: Should Doosan exercise the option to "sell or supply the Disposal Cranes to a third party" (last sentence of Clause 3), then the "terms and conditions" of Clause 4(i)-(vi) shall apply. To understand the words "is conditional" as a suspensive condition for the whole of Clause 4 would not make sense because sub-clauses (i)-(vi) do not contain a uniform condition per se but put only specific rights and obligations under a specific suspensive condition (in particular in relation to the "financial close", as argued by Respondents to be a condition, or the winning of the KPA tender, both referred to in sub-clause (ii)).
248.
As regards sub-clause 4(ii), and the heavily disputed characterization of the "financial close" in relation to the USD 51mio payment, the tribunal finds that, ultimately, the distinction between an "indefinite term" or a "suspensive condition" is irrelevant: First, it is clear from the structure of Clause 4 that the payments quoted in sub-clause 4(ii) constitute advance payments only. Otherwise the reference in the first sentence to a new "total price" would be contradictory. Now, if the "amount equivalent to 60% of the price of the unsold STS Cranes" is an advance payment falling due under the suspensive condition of a "financial close" and if the financial close never occurs, then this part of the price will fall due in such a way as if the prior, unconditional contractual position were in force, ie, "in accordance with the Original Contract", as also pointed out in the last sentence of sub-clause 4(ii). As a consequence, if "financial close" and, thus, delivery never occurs and the agreement terminates (as it did), all open amounts (the remainder on the "total price") fall due upon termination.
249.
As regards interest on such amounts, sub-clause 4(ii) is clear in stating that interest (at an annual rate of 6.5% pa) shall (unconditionally) accrue "on the due amounts", starting from 1 September 2009. This a clear provision to retroactively apply interest as of this date.
250.
The amount of USD 9mio was clearly and explicitly put under a suspensive condition ("provided that the KPA tender mentioned below is not won by the consortium led by DOOSAN"). "Mentioned below" evidently relates to sub-clause (v) where the tender known as the "Kuwait Port Authority (KPA)" is addressed and where it is stated that Doosan "shall participate as co-leader with KGLPI with regards [sic] to said tender for the supply of STS Cranes, related equipment and civil- and electrical works."
251.
The KPA tender was won by DIPCO/Doosan, but it remained disputed among the Parties whether the suspensive condition was fulfilled as the cranes to be delivered under the KPA tender were different from those specified in the Supply Agreement. The Tribunal finds that the condition would have been fulfilled only if the KPA tender had related to cranes as defined in the Supply Agreement. In sub-clause 4(ii) the 2009 Agreement refers to "the KPA tender mentioned below". It is sub-clause 4(v) which, in the following, addresses the KPA tender. There it was clarified that "DOOSAN responsibility is limited to only supplying STS cranes to KPA as they are built under contract with DIPCO " (emphasis added). Moreover, sub-clause 4(vi), which deals with a delivery under the KPA tender of possible additional STS cranes, limits such delivery to STS cranes "based on the same terms, conditions, Specifications and process stipulated under the Original Contract", ie, under the Supply Agreement.
252.
It is undisputed that the KPA tender, in the end, was not for STS Cranes as specified in the Supply Agreement but other ones. Thus, the negative condition, after DOOSAN's payment request of 1 December 2009,181 was fulfilled on 1 January 2010, at the latest, and the advance payment of USD 9mio fell due at that time.

Breach

253.
Doosan declared to terminate the Supply Agreement, as amended, with its letter of 4 March 2016,182 and made reference to DIPCO's breach of Clause 4(ii) of the 2009 Amendment, which is the clause on advance payments to be made. The non-payment of USD 9mio definitely constituted a breach by DIPCO of its contractual obligations so that the other advance payment in the amount of USD 51mio, which turns on the condition-vs-term issue need not to be examined.
254.
Doosan's termination for cause is based on Sub-Clause 16.2 "Termination by Contractor" of the FIDIC General Conditions. It states in its relevant part:183

The Contractor shall be entitled to terminate the Contract if: [...] (d) the Employer substantially fails to perform his obligations under the Contract.

255.
Sub-Clause 16.4 [Payment on Termination] of the FIDIC General Conditions addresses the compensation triggered by a termination for cause. Sub-Clause 16.4, in its relevant part, reads as follows:184

After a notice of termination under Sub-Clause 16.2 [Termination by Contractor] has taken effect, the Employer shall promptly: [...] (b) pay the Contractor in accordance with Sub-Clause 19.6 [Optional Termination, Payment and Release], and (c) pay the Contractor the amount of any loss of profit or other loss or damage sustained by the Contractor as a result of this termination.

256.
This contractual provision would have also applied, in the alternative, to a termination for the force majeure / impossibility scenario, which the Tribunal, however, does not follow.
257.
Sub Clause 19.6 of the FIDIC General Conditions defines the amount to be paid. Thus, Doosan is entitled to two relevant compensation amounts, namely:185

(a) the amounts payable for any work carried out for which a price is stated in the Contract; [...] (c) any other Cost or liability which in the circumstances was reasonably incurred by the Contractor in the expectation of completing the Works [...]

258.
Therefore, Sub Clause 16.4 and its referenced other provisions of the FIDIC General Conditions, place Doosan in the position it would have been in had it not terminated the Supply Agreement, as amended, because of the Respondents' material breach of it.
259.
The FIDIC General Conditions achieve this purpose by ordering payment to Doosan of three different categories of compensation:

• the price for the works undertaken (16.4(b) in conjunction with 19.6(a));

• the cost or liability it reasonably incurred in the expectation of completing the works (16.4(b) in conjunction with 19.6(c)); and

• the loss of profit or other loss or damage it sustained (16.4 (c)).

260.
The Tribunal therefore will apply these criteria when deciding on the Quantum of the claims raised (see §§327 et seqq below).

Mitigation

261.
To mitigate damages is an objection an injuring party may raise against an injured party with the argument that the injured party should have acted or should have omitted certain actions in such a way that the damage would have been lower. This is an accepted obligation in international arbitration.
262.
Following the general principle that facts supporting a party's claim (in the case at hand, the negatory claim of mitigation) shall be proven by such party,186 the burden of proof is with Respondents.
263.
Both Parties agree that Article 216 ECC is sedes materiae providing that "the judge may reduce the amount of damages or may even refuse to allow damages if the creditor, by its own fault, has contributed to the cause of, or increased, the loss ".187 Article 216 ECC must be read in conjunction with Article 221 ECC, which also bears on the concept of mitigation and provides that, in case of breach of contract,188

[...] the amount of damages includes losses suffered by the creditor and profits of which he has been deprived, provided that they are the normal result of the failure to perform the obligation or of delay in such performance. These losses shall be considered to be a normal result, if the creditor is not able to avoid them by making a reasonable effort.

264.
Thus, Egyptian civil law, like other civil-law jurisdictions, follows the concept of contributory fault: If the insured party could have "reasonably" avoided the loss, then this loss - albeit an adequate consequence of the damaging event - cannot be said to flow directly from the breach to the extent the insured party could have "reasonably" avoided such loss. It appears that both, Claimant and Respondents, agree on that concept of law.189
265.
Respondents have argued that Claimant could have mitigated its losses by terminating the Supply Agreement (as amended) at an earlier point in time and/or selling to third parties Cranes earlier and more of them so that costs of storage and maintenance would have been lower and the price achievable from third parties would have been higher. The Tribunal does not follow this reasoning.
266.
Firstly, the Tribunal deems it a basic right of a creditor to stick to a contract and insist on performance by a debtor. Thus, a duty to mitigate damages does not stretch so far that a creditor would be under a legal obligation to rescind a contract.
267.
This is even truer when the debtor (DIPCO, in the case at hand) is in a contractual position where it may, as opposed to the creditor, terminate a contract without cause (see Sub-Clause 15.5 of the FIDIC General Conditions) and where the events which are the cause of the losses belong to the debtor's sphere and are therefore under the debtor's control to greater extent than under the control of the creditor.
268.
In the view of the Tribunal, the purpose of the 2009 Amendment was to jointly mitigate costs and losses. In other words, the Parties, at that time, set a framework how to address the apparent delay in performing the original Supply Agreement and laid down the elements of an economically "reasonable" behaviour in that situation.
269.
The main elements of the 2009 Amendment in order to jointly mitigate the negative economic effects of the delay were the following:

• DIPCO's right to be delivered with the number of Cranes as defined in the Supply Agreement was to "remain valid and enforceable" (Clause 5 of the 2009 Amendment).

• Both Parties expected these deliveries to occur by the end of August 2009, on the basis of the "financial close" (acceptance of the new business plan of DIPCO by its shareholders and lenders; irrespective whether the financial close is to be interpreted as a suspensive condition or a term), and set for these deliveries in Sub-Clause 4(iv) a tight timeframe for delivery requests (of DIPCO) and delivery dates (to be observed by Doosan).

• The main arrangement was that Doosan was Granted the "option" to sell a certain number of Cranes Which were actually due to be supplied to DIPCO under the original contract (the "Disposal Cranes") to a third party in order to generate cash-flow it financially needed. At the same time, Doosan had to be ready for delivery to DIPCO of identical Replacement Cranes at the original prices and the other terms and conditions and under the time frame mentioned before.

270.
This allows the Tribunal to conclude that the Parties have set with the 2009 Amendment a framework of "mitigation" much more specific and narrow as it might flow from a general statutory duty of mitigation under civil law. The arrangement was stricter because Doosan, although being "allowed" to sell the Disposal Cranes, was prevented under the 2009 Agreement from passing on losses from such sales to DIPCO so that the risk of making a bad deal in comparison to supplying the Cranes to DIPCO at a later time was fully with Doosan. Conversely, the possibility to sell the Disposal Cranes was granted to Doosan explicitly as an "option" so that it was free to decide whether it would risk a bad deal and go ahead with the sale of Disposal Cranes, or not.
271.
The Tribunal therefore concludes that the 2009 Amendment fully reflects what the Parties agreed on how to "mitigate" the consequences of DIPCO's delay in the takeover of the Cranes and that Doosan was under no obligation to follow up on other measures of mitigation, if any at all.
272.
Moreover, the primary person to mitigate the consequences of its default in acceptance or the Cranes would have been DIPCO as it was much better positioned to foresee and control the future timing of the delivery to it of the Cranes, Thus, as correctly pointed out by Claimant, DIPCO itself could have requested delivery of the Cranes and could have either stored them at its cost for later use or sold them on to third parties, under arrangements, if necessary, with Doosan to adapt them to specific needs or such third parties.
273.
But even when assuming that Doosan had to apply additional efforts on its side to mitigate damages beyond the setting of the 2009 Amendment, it acted "reasonably" in the view of the Tribunal.
274.
When performing such a reasonability test, the Tribunal, first, has to consider what amounts claimed by Doosan qualify as damages of an injured party. Here, the Tribunal concurs with Claimant's view that most of its claims are for payment for work performed (pursuant to sub-clause 19.6(a) of the FIDIC General Conditions) or, in the alternative, for manufacturing cost as well as storage and maintenance cost incurred in the performance of the contract (pursuant to sub-clauses 19.6(b) and 19.6(c) of the FIDIC General Conditions). These amounts are all due to a Contractor in any ease, ie, even if the Employer is found not to have breached the supply agreement.
275.
But even when assuming that these claims did constitute "damages", Respondent 1 did not demonstrate and prove that Doosan behaved "unreasonable" when performing the Supply Agreement in its 2009 version during the time period before it finally decided to terminate the contract (whereupon the specific rights and obligations of a party, when terminating a contract for breach, under the FIDIC General Conditions are kicking in).
276.
Second, the "window of opportunity" for Doosan to sell Cranes to third parties was extremely narrow, as it has demonstrated.190 The window opened when it received In September 2010 from DIPCO the authorization to sell Cranes to third parties (the "September 2010 Authorization"),191 which was conditioned not only on the requirements previously imposed in the 2009 Amendment (such as the obligation to manufacture Replacement Cranes on demand, at the original price, and the commitment not to claim from the Respondents any losses that could result from selling the Cranes to third parties), but also on compliance with a tight new delivery schedule.
277.
In more detail, Claimant's reasoning, which remained un-refuted, was "reasonable", as described in its last submission:192

Specifically, a first batch of four Cranes was to be shipped on 15 September 2011, a second shipment of 6 Cranes on 15 February 2012, and a final shipment of 4 Cranes on 15 September 2012.86 Knowing that it takes between 12 and 18 months to manufacture new Cranes, Doosan could in reality only sell up to six Cranes to a third party in the period beginning September 2010 if it wanted to comply with this schedule. Moreover, if it sold those six Cranes, Doosan would have to begin manufacturing their replacements by February 2011, at the very latest (ie, 12 months in advance of required delivery on 15 February 2012).

278.
So, in fact, the September 2010 Authorization gave Doosan a window of only four months (between October 2010 and February 2011) to sell up to six Cranes that it would then have to begin remanufacturing immediately. The evidence gathered during the proceedings does not show any attractive sale opportunity that Doosan ignored in that short period of time. As the witness Jongsuk Park credibly stated, the market price of the Cranes had already fallen at that time well below the manufacturing costs,193 not to mention technical modifications that would be required to conform with the specifications of any potential buyers.
279.
The Tribunal concurs with the choice Doosan was confronted with, submitted in the proceedings as follows:194

In other words, beginning with the September 2010 Authorization, Doosan faced a simple choice: (i) sell the Cranes immediately to a third-party at a significantly (and increasingly) discounted price - thus incurring potentially irrecoverable losses on the Cranes' manufacturing costs but saving additional storage and maintenance costs - or (ii) incur additional storage and maintenance costs but potentially avoid all losses on the Cranes' manufacturing costs by delivering the Cranes to Respondents when the Project resumed and receive the full Contract Price. Needless to say, the balance between these two options weighed in favor of the second one, especially when Respondents were themselves optimistic about the Project's chances of resuming.

280.
For all these reasons the Tribunal finds that Claimant, even when qualifying all amounts Doosan claims as damages of an injured party, behaved reasonably during the lifetime or the Supply Agreement in the 2009 Amendment version and, thus, its claim shall not be reduced with the argument of a duty of mitigation on its side.
281.
Foreseeability: Article 221(2) ECC stipulates as follows:

When, however, the obligation arises from contract, a debtor who has not been guilty of fraud or gross negligence will not be held liable for damages greater than those which could have normally been foreseen at the time of entering into the contract.195

282.
As held by the Tribunal in the context of Force Majeure / Impossibility, the Parties took account of the circumstances that impeded timely delivery in the 2009 Amendment. This is the perspective one has to consider when examining foreseeability.
283.
It is clear from the very wording of the 2009 Amendment that the Parties addressed the circumstances that had already arisen and contemplated additional delays. In other words, they were not only aware of these negative circumstances but, even more, provided contractual stipulations for such situations - by authorizing Doosan to sell "Disposal Cranes", on the one hand, and by maintaining Doosan's obligation, in principle, to deliver Container Cranes should the circumstances allow DIPCO to proceed with the Damietta Project and to be supplied with the Container Cranes.
284.
The Tribunal therefore finds that the Parties quite well foresaw ensuing obstacles for delivery at the time when they entered into the 2009 Amendment and provided specific contractual consequences for such obstacles. In more detail, it was foreseeable for the Parties that a failure to pay Doosan under Sub-Clause 4(ii) of the 2009 Amendment would result in Doosan incurring additional costs and/or damages for the Container Cranes standing idle at Doosan's premises, awaiting potential future delivery.

Advance Payment Guarantee

285.
The Advance Payment Guarantee is an accessory instrument securing the repayment of Doosan's advance payment. It results from the very nature of a security (like a bank guarantee, a pledge or a mortgage) that the creditor's right to make use of the security depends on the (continuing) existence of the secured claim.
286.
The termination of the Supply Agreement (as amended) entailed its winding up and a settlement of the Parties mutual claims. On Respondents' side, the advance payment they had initially made had to be credited in their favour.
287.
In the case at hand Claimant has applied Respondent 1's claim for reimbursement of the advance payment against its claims resulting from the breach and the termination of the Supply Agreement so that Respondent l's counterclaim is satisfied. This, in the view of the Tribunal, is why Respondent 1 has withdrawn the counterclaim it had originally made in the present proceedings.196
288.
In the light of the proceedings pending before the Egyptian court where Respondent 1 tries to enforce its call on the Advance Payment Guarantees the Tribunal finds that the Claimant has sufficient legal interest to seek a declaratory ruling to the effect that Respondents are not entitled to any restitution of the advance payment to Respondents.
289.
It should be added that the declaratory relief this Tribunal is granting has an effect solely for the legal relationship between Claimant and Respondents, as opposed to the legal relationship between Respondent 1 and the bank having issued the guarantees. Thus, it will be up to the Egyptian court whether Respondent l's estoppel to make use of the bank guarantees will have a direct impact on the claim they have lodged against the bank.

H. KGLPI AND DIPCO JOINTLY LIABLE?

1.1 Claimant's Position

290.
KGLPI should be held jointly and severally liable toward Doosan as DIPCO's co-debtor as a matter of Egyptian civil law which, like most other jurisdictions, allows not only for written and oral, but also tacit agreements by way of signs in general use or by such conduct as, in the circumstances of that case, leaves no doubt as to its true meaning.197
291.
This approach under Egyptian law comports with the general rule typically espoused by international arbitral tribunals. Gary Born notes that "[u]nder most developed legal systems, an entity may become a party to a contract, including an arbitration agreement, impliedly - typically either by conduct or non-explicit declarations..."198
292.
The evidentiary record clearly shows that KGLPI impliedly consented to be bound by the Supply Agreement and its arbitration provisions according to the tests set forth in arbitral case law, French law, and Egyptian law.199
293.
Article 47(1) of the Egyptian Commercial Code provides that "[t]hose who are bound together for a commercial debt shall be jointly responsible for that debt, unless otherwise prescribed by the law or the agreement. "200 Similarly, arbitral case law supports a finding of joint liability between entities of the same group of companies that indistinctively participate in a contractual relationship and jointly benefit from it.201 Therefore, as a consequence of the fact that KGLPI participated in the Supply Agreement alongside DIPCO in an interchangeable manner and benefited from this contract as a joint owner of the Damietta Concession, to be jointly and severally liable is the manner KGLPI should be held in relation to Doosan.202
294.
This view is supported by the final award in the ICC Case No. 5103.203

1.2 Respondents' Position

295.
Even if KGLPl were to be joined to this arbitration, it would be neither solely nor jointly bound by DIPCO's agreements nor responsible for any liabilities of DIPCO under the applicable laws, as KGLPl is a completely different legal entity.204
296.
The Parties are at least in agreement that the formation of any contract between Claimant and Respondent 2 is a matter of Egyptian law.205
297.
Under Articles 89 and 90 of the ECC contracts are formed by mutual consent. The intention of a party has to be reflected by conduct which, in the circumstances of the case, leaves no doubt as to its true meaning, and no weight shall be given to an intention Which is not directed towards producing a legal effect.206
298.
Third parties cannot be bound to obligations in Egyptian contract law:

A contract does not create an obligation on third parties, however It can earn the latter a right.

299.
Moreover, a Joint liability must be expressly established by contract or law. A Joint liability between creditors or between debtors is not assumed per se and shall only be based upon an agreement or provision of the law.207
300.
The actual will of KGLPl was to simply act as the Employer's Representative.208

1.3 Tribunal’s Determination

301.
The Tribunal has accepted jurisdiction over Respondent 2 with the argument that KGLPl was closely involved in the preparation, negotiation and performance of the Supply Agreement and the 2009 Amendment, and that it acted in its own interest (as the holder of the Port license) and as the parent member of a group of companies to which DIPCO belonged.
302.
To decide on jurisdiction, however, is an issue under procedural law, whereas a party's joint and several liability is an issue under substantive law, ie, under Egyptian law in the case at hand.
303.
In the view of the Tribunal, the facts surrounding the negotiation and execution of the Supply Agreement and the - albeit parallel and overlapping - functions and interventions of KGLPl in the context of the Project in the years 2006 through 2008 do not sufficiently demonstrate a uniformly shared contractual intention of the Parties of the Supply Agreement to conclude that KGLPI became another contract party or a guarantor on the Employer's (DIPCO's) side.
304.
This, however, changed when Doosan and DIPCO entered into the 2009 Amendment and KGLPI was introduced to it in Sub-Clauses 4(v) and 4(vi) as a legal entity that should acquire certain rights in relation to Doosan and DIPCO.
305.
Under Sub-Clause 4(v) Doosan undertook to cooperate with DIPCO and KGLPI in future sales activities and, in particular, to finalize the tender known as the tender of the Kuwait Port Authority (the "KPA)" and to participate as co-leader with KGLPI with regard to said tender for the supply of STS Cranes, related equipment and civil- and electrical works.
306.
In Sub-Clause 4(vi) Doosan went even a step further by obliging itself "to supply an additional number of STS Cranes to the KPA under the KPA tender based on the same terms, conditions, Specifications and process stipulated under the Original Contract", ie, the Supply Agreement.
307.
To begin with from a legal perspective, to ask Doosan in Sub-Clause 4(v) to cooperate and to participate as co-leader are broad legal terms aimed at having the cranes at disposal for KGLPI in the context with the said tender.
308.
Sub-Clause 4(vi) is more specific in the sense of contractually obliging Doosan to supply, ie to sell, a certain number of Cranes should the KPA tender be successful.
309.
The first conclusion, here, is that Sub-Clauses 4(v) and 4(vi) are meant to grant a third party (KGLPI) certain rights. In that sense, these clauses constitute a contract in favour of a third party. Yet, the Tribunal agrees with Respondent 1 that such kind of a contract does grant rights to but does not impose obligations on the third-party (see §298 above).
310.
This, however, may change when the third party accepts the contractual position it has been offered in its favour. And the evidence shows that KGLPI, at least tacitly, accepted the position it was offered in the 2009 Amendment when it followed up on Sub-Clauses 4(v) and 4(vi) of the 2009 Amendment in a teleconference on 9 July 2009 with Doosan by inviting Doosan into the joint venture alongside with KGLPI in order to successfully participate in the KPA tender. It remained undisputed that the joint venture was formed and that KGPLI together with Doosan participated in the KPA tender.
311.
To be more precise, under Sub-Clause 4(v) of the 2009 Amendment KGLPI became entitled, as a beneficiary third party, to request Doosan to enter into a partnership (joint-venture) with KGLPI whereby Doosan would contribute to the joint venture its undelivered Cranes which, if successful in the tender, would be sold on to the Kuwait Port Authority.
312.
According to the wording of Sub-Clause 4(vi) of the 2009 Amendment, it was DIPCO who could request Doosan to sell additional Cranes to the KPA. But since it was KGLPI who participated in the KPA tender it is evident that it was again KGLPI who would launch such a request, in its own interest as a bidder. In legal terms, Doosan undertook to supply additional Cranes should KGLPI so wish and would either enter into a sales contract directly with the KPA or contribute these Cranes to the tender partnership with KGPLI for further re-sale of these Cranes to the KPA.
313.
Whatever the legal structure of the foregoing would be, it remains clear that KGLPI, when accepting the section of the 2009 Amendment offering it a third party beneficiary position would necessarily have also to accept the obligations belonging to that position. In other words, KGLPI would have to pay, or at least warrant the payment, owing from the acquisition of the Disposal Cranes set aside for the KPA tender. Or, to phrase it in economic terms, KGLPI would have to finance the price of the Disposal Cranes against KGLPI's later refinancing out of the subsequent resale of the Disposal Cranes to the Kuwait Port Authority.
314.
The Tribunal therefore concludes that KGLPI accepted the third-party beneficiary position when it proceeded under the KPA tender and, thus, undertook to warrant the payment of the Disposal Cranes. Moreover, Sub-Section 4(vi) of the 2009 Amendment broadened KGLPI's position to an (open-ended) "additional number of STS cranes," so that its financial responsibility for warranting the payment of Cranes can be interpreted meant to stretch to any of such Cranes.
315.
As a next step, the Tribunal has to evaluate whether the foregoing sufficiently reflects an intention of the parties (including KGLPI as the third party beneficiary) to take on KGLPI as a participant with certain rights and obligations to the Supply Agreement in the 2009 Amendment version. This has to be done against the background of the prior conduct and intentions of all three Doosan, DIPCO and KGLPI.
316.
The evidence shows that KGLPI had a double interest. First, it was interested from the very beginning, as the holder of the Port license, to keep the protracted Project afloat by allowing DIPCO and, indirectly, Doosan to further keep the delivery of the Cranes on hold by way of allowing them to sell the Disposal Cranes to third parties and refinancing Doosan's accrued costs of storing end maintaining the manufactured Cranes, but, at the same time, maintaining Doosan’s delivery commitment.
317.
The 2009 Amendment introduced a second interest of KGLPI which was to successfully participate in the KPA Tender by having appropriate Cranes at its disposal.
318.
Here, one must consider all the many elements showing that KGPLI, from the very first moment or oven before DIPCO, was the entity strongly interested in implementing the Project including the acquisition of appropriate cranes. Against that background, the acceptance by KGPLI of the position it was offered as a third party in the 2009 Amendment must have stretched much further than the more acquisition of Cranes under Sub-Clauses 4(v) and 4(vi). KGPLI, as a shareholder of DIPCO, was fully aware of these Cranes being in an extremely problematic situation in both legal and economic terms. It would not have made sense for either party to solely grant KGPLI the right to have a certain number of these Cranes at its disposal for the KPA Tender without warranting the sales relationship underlying these Cranes, ie, the (delayed) supply to DIPCO of the Cranes for the Damiatta Port and, as a Consequence, the payment of the respective purchase price.
319.
In other words, KGLPI had the opportunity to kill two birds with one stone, ie, to participate in the KPA tender and simultaneously to make an economic use of the idle Cranes without relinquishing the right of later delivery should the Damietta Port project continue. Thus, in the protracted situation reflected in the 2009 Amendment it made no sense for KGLPI to simply purchase Cranes out of the stock designated for the Damietta Port project without warranting the fulfilment of the underlying deliveries, by either becoming a co-debtor or, at least, a guarantor on the side of DIPCO.
320.
This, in the view of the Tribunal, must have been the understanding of all three entities when negotiating, concluding and implementing the 2009 Amendment. This conclusion is also supported by the reference in Sub-Clause 4(ii) to a "financial close" as "the date of the acceptance of the new business plan of the call by the shareholders and the lenders of DIPCO, among which KGLPI must have been the most prominent and interested partner.
321.
It is true that KGLPI was defined in the Supply Agreement as the "Employer's Representative". Yet this does not change the fact that KGLPI was the main shareholder of DIPCO, the organizer of the Damietta Port Tender and the holder of the Port license. It made sense to grant KGLPI to the outside the position of a representative so that KGLPI could, at any time, monitor, at first hand, all activities of the special purpose vehicle DIPCO.
322.
The Tribunal is aware that Egyptian civil law follows internationally accepted standards as to the form contractual undertakings when Articles 89 ECC209 provides that "[a] contract is created, subject to any special formalities that may be required by law for its conclusion, from the moment that two persons have exchanged two concordant intentions," while Article 90 ECC210 provides that "[a]n intention may be declared verbally, in writing, by signs in general use, and also by such conduct as, in the circumstances of that case, leaves no doubt as to its true meaning." Article 90 of the ECC goes on to state that "[a] declaration of intention may be implied when neither the law nor the parties require it to be expressed."211
323.
Thus, also under Egyptian civil law, the Tribunal had to evaluate the involvement and conduct of KGLPI and DIPCO vis-à-vis DOOSAN, as it preceded the 2009 Amendment, and had to conclude that KGLPI, at least tacitly, acceded to the Supply Agreement (in its amended version). Whether KGLPI became a co-debtor (as a main debtor together with DIPCO) or a guarantor (as an accessory debtor with the right of recourse against DIPCO) is irrelevant for the case at hand because only the internal relationship between these two companies would be concerned.
324.
When characterizing KGLPI as a co-debtor, one has to determine whether it assumed a joint and several or a partial liability. Since the present matter is a business matter, Article 47(1) of the Egyptian Commercial Code applies which provides that "[t]hose who are bound together for a commercial debt shall be jointly responsible for that debt, unless otherwise prescribed by the law or the agreement. "212 Even when disregarding this statutory provision the result would be the same as the debt at hand is indivisible.
325.
Similarly, arbitral case law supports a finding of joint liability between entities of the same group of companies that indistinctively participate in a contractual relationship and jointly benefit from it.
326.
The Tribunal therefore concludes that Respondent 2 is jointly and severally liable with Respondent 1 towards Claimant for the claims Claimant has made in the present proceedings.

I. ON THE QUANTUM: THE PARTIES' FACTUAL ASSERTIONS AND LEGAL ARGUMENTS

1. Termination Scenario

1.1 Claimant's Position

327.
There is an alternative in the quantum part the Arbitral Tribunal has to consider but not necessarily to decide.213
328.
The first juncture in the analysis depends on the cause of termination Doosan was entitled to invoke, ie, termination for breach (in which case Sub-Clause 16.2 of the FIDIC General Conditions would apply) or termination for impossibility (in which case Sub-Clause 19.7 of the FIDIC General Conditions would apply).214
329.
The compensation triggered by a termination for cause is stipulated in Sub-Clause 16.4 of the FIDIC General Conditions, which, in its lit (b), refers to Sub-Clause 19.6 of the FIDIC General Conditions.215 This is the key provision on compensation in the event of a termination by the contractor, but applies also in the alternative of a termination for impossibility.216
330.
Due to Respondents’ substantial breach of the Supply Agreement, Doosan was entitled to terminate the Supply Agreement for breach under Sub-Clause 16.2 of the FIDIC General Conditions.217 Accordingly, the tribunal needs only to deal with the primary termination scenario.218

1.2 Respondents' Position

331.
Respondents did not breach the Supply Agreement219 and, in any event, Claimant did not notify Respondents of any breach as it should have pursuant to the FIDIC General Conditions.220
332.
Should the Tribunal find that there was no breach following the 2009 Amendment, then the Supply Agreement terminated without any further obligations of payment on DIPCO.221

1.3 Tribunal's Determination

333.
The Tribunal has found that the Supply Agreement was terminated by Claimant for cause (breach).222
334.
Therefore, the consequences of the termination are governed by Sub-Clause 16.4 of the FIDIC General Conditions, which, in its lit (b), refers to Sub-Clause 19.6 of the FIDIC General Conditions.223 This has not been disputed by Respondents.

2. Calculation Method: Price or Costs?

2.1 Claimant's position

335.
Within each of the termination scenarios there are two alternative calculations possible: One based on Sub-Clause 19.6(a) of the FIDIC General Rules (based on the agreed price) and one based on Sub-Clause 19.6(c) of the FIDIC General Rules (based on the incurred costs).224
336.
While these alternative methods of calculation would yield different results in the scenario of a termination for impossibility, they lead to the same result in the scenario of a termination for breach - the reason being that Doosan, in the latter scenario, will be also entitled to lost profits in addition to costs, whereas price, at the outset, equals costs plus a profit margin.225
337.
Therefore, the Tribunal does not need to decide whether to adopt the price or the cost approach when finding that the Supply Agreement was terminated for breach.226
338.
Sub-Clause 16.4 and the referenced other provisions of the FIDIC General Conditions place Doosan in the position it would have been in but for the valid termination of the Supply Agreement for cause227 by authorizing payment to Doosan of (i) the price for the works undertaken (Sub-Clause 16.4(b) in conjunction with Sub-Clause 19.6(a)); (ii) the costs and liabilities Doosan reasonably incurred in expectation of completing the works (Sub-Clause 16.4(b) in conjunction with Sub-Clause 19.6(c)); and (¡ii) the loss of profit or other loss or damage Doosan sustained (Sub-Clause 16.4(c)).228
339.
Respondent 1's suggestion that the Parties would be in agreement on the application of Sub-Clause 19.6(c) (based on the incurred costs plus lost profit) is misleading and only correct in the event that the Tribunal would decline to calculate Doosan's entitlement under Sub-Clause 19.6(a) of the FIDIC General Conditions (based on the agreed price).229

2.2 Respondents’ Position

340.
Sub-Clause 19.6(a) of the FIDIC General Conditions refers to "the amounts payable for any work carried out for which a price is stated in the Contract". However, after the July 2009 Amendment, there was only one price fixed under the contract: for its total completion.230 Therefore, the correct approach is to (only) apply the cost method, ie to take into account the costs incurred in the expectation of completing the works under Sub-Clause 19.6(c) of the FIDIC General Conditions and lost profits under Sub-Clause 16.4(c) of the FIDIC General Conditions.231

2.3 Tribunal's Determination

341.
The disagreement between the Parties on whether the "price" or the "costs" approach is appropriate only turns on Doosan's claim for consideration for ten Container Cranes, All other payment claims of Doosan have been based on "costs" or "liability" (in terms of Sub Clause 19.6(c) of the FIDIC General Conditions) or on "lost profit" (in terms of Sub Clause 16.4(C) of the FIDIC General Conditions).

Schedules A.1 to A.4 of the Supply Agreement contain a detailed breakdown of the price agreed between the Parties.232 It remained undisputed between the Parties that from these Schedules, a price per Container Crane can be established.

342.
In Sub-Clause 4(ii) of the 2009 Amendment, the Parties agreed on a reduction of the total prices

"DOOSAN agrees that the total price for the fourteen (14) cranes shall be 120,000,000 $ (only one hundred and twenty million US dollars) Including all costs, fees, any claims such as transportation costs and claims for changes of oil, ropes, etc,.. and also the costs of fixation of any problem that may be discovered after the delivery. [...]"233

343.
Respondent 1 is correct in pointing out that the 2009 Amendment does not include a breakdown of the reduced total price, However, as shown by Claimant’s expert,234 one can calculate the reduction of the total price in percent and then reduce the price for the individual works as stated in Schedules A.1 to A.4 of the Supply Agreement by such percentage. Respondent 1's experts confirmed that this approach is acceptable.235
344.
Therefore, the Tribunal applies the "price approach" (Sub-Clause 19.6(a) of the FIDIC General Condition) when it comes to determining Doosan's consideration for the ten Cranes, if any.

3. Consideration for 10 Container Cranes

3.1 Claimant's Position

345.
When the 2009 Amendment was concluded, Doosan had constructed fourteen Container Cranes (four of them unerected), four of which could be sold by Doosan under the 2009 Amendment to third parties and ten of which remained stored with Doosan for DIPCO.236 When the Supply Agreement, as amended, was terminated by Doosan on 4 March 2016, Doosan still had six erected and four un-erected Container Cranes awaiting shipment to Egypt that it kept stored for DIPCO on its premises in Korea.237
346.
The price for fourteen Container Cranes which was initially agreed upon in the Supply Agreement was later reduced by way of the 2009 Amendment.238 On this basis, Claimant's expert calculated the final price for ten Container Cranes on a pro rata basis, making further deductions.239 These deductions were made to take into account the costs that would need to have been incurred by Doosan for the erection of the four un-erected Container Cranes.240
347.
The differences between the Parties' experts with respect to these deductions were narrowed down in the course of the proceedings.241 The only remaining difference in the calculation of the deduction amounts to USD 1,499,628.242
348.
Doosan does not accept such additional deduction. From the accounting records, it was evident that Doosan had sub-contracted erection works for the Container Cranes for a fixed price per Container Crane and Doosan had in fact been charged by its sub-contractor the same amount per Container Crane for the previous erection of them.243 It is, hence, clear that Doosan would also incur these costs for the erection of the un-erected Container Cranes for which the same sub-contractors had been engaged.244
349.
In total, the appropriate consideration for the ten Container Cranes is USD 71,759,532.245

3.2 Respondents' Position

350.
The deductions which must be made from the agreed price for ten Container Cranes are higher than assessed by Claimant's experts.246 More specifically, the experts remain in dispute regarding remaining mechanical and electrical installation costs, with Claimant's expert proposing a total reduction of USD 1,865,780 and Respondent 1's experts positing a reduction of USD 3,365,408.247 The difference results from Claimant's expert’s incorrect assumption that a comparably low number of manpower would be required to erect the four un-erected Container Cranes.248

3.3 Tribunal's Determination

351.
Given that the Tribunal has held that the price approach is the appropriate one for assessing the consideration for the ten Container Cranes manufactured by Doosan (see §§341 et seqq above), the Tribunal need not consider any arguments made by the Parties in the context of a cost oriented approach.
352.
The Parties’ experts agree that the price agreed upon by the Parties for ten Container Cranes is USD 74,338,763. The experts and the Parties, for that matter - further agree that certain deductions must be made to account for (i) the works Doosan would have had to perform for erecting the four un-erected Container Cranes and (ii) future warranty costs that Doosan would save due to the non-performance of the agreement with DIPCO.
353.
The experts agree that USD 713,451 must be deducted from the agreed price to account for future warranty costs saved by Doosan.249 The experts do not, however, agree on the exact amount of work Doosan would have had to perform for the erection of the four un-erected Container Cranes. While the difference was narrowed in the course of the exchanges between the experts, an amount of USD 1,499,628 remains in dispute.250
354.
Claimant's experts conclude that Doosan would have to incur additional costs of USD 842,035 for assembly, erection and testing.251 In contrast, Respondent 1's experts conclude that the remaining mechanical and electrical installation would actually amount to a considerably higher amount,252 arguing that the costs assumed by Claimant's expert would only cover 10.6 workers while at least 40 workers would be required to perform the outstanding work.253
355.
Claimant's expert's assessment of the remaining completion costs relies on agreements between Doosan and sub-contractors, allegedly covering assembly, erection and testing works. Column E of Appendix C to the Second Expert Opinion of kiran P Sequeira lists the price of these subcontracted works for a single unit (ie, a single Container Crane). With respect to the four un-erected Cranes, Claimant's expert then assessed which part of the subcontracted works remained unpaid by Doosan vis-à-visits subcontractors.254 Only the unpaid shares were then added up and - where necessary - converted from KRW to USD, resulting in USD 842,035 for assembly, erection and testing Including overhead.255 In support of these figures, Claimant's expert submitted numerous subcontracts.256 Respondents did not dispute that Appendix C to the Second Expert Opinion of Kiran P Sequeira accurately reflects the prices agreed upon between Doosan and third parties in these subcontracts.
356.
In fact, Capt Wolfhard H Arlt agreed that, if certain works are subcontracted, solely the subcontractor bears the risk of the price not covering its actual costs:

C for Doosan: But if you subcontract and the subcontractor is doing the work for a fixed price, do you need to worry about how many people from the subcontractor work on it?

Capt Arlt: I don't worry about how many people work on it, no, that's correct.257

[...]

C for Doosan: Okay, good. So again if you look at the numbers, it's 1,2,5, where the unit is full and there is 6 and 7, where there is still work to do. Again if you look at the amount from the subcontractor, it's all the same. If the subcontractor managed to do it in that price, do you need to worry about the manpower?

Capt Arlt: If you look at it that way, yes.

C for Doosan: You don't need to look at the manpower? Right?

Capt Arlt: Yes.258

357.
The Tribunal finds that the prices established in the subcontracts are the relevant ones. After all, regardless of the actual amount of works to be performed to completion, Doosan's subcontractors were bound by the prices agreed in the subcontracts and, hence, Doosan would not have to invest additional costs.
358.
The Tribunal, hence, concludes that the accurate deduction for assembly, erection and testing of the four un-erected cranes amounts to USD 842,035. Considering the agreed) price for the ten cranes and other deduction agreed upon by the Parties' experts, the tribunal finds that Doosan's claim for compensation for ten Container Cranes in the amount of USD 71,759,532 is justified.

4. Shipping Cancellation Costs

4.1 Claimant's Position

359.
In order to ensure a timely transportation of the constructed Cranes to Egypt under the contractually agreed delivery schedule, Doosan booked transportation capacity in advance of the dates of required shipment on special vessels that are able to carry the heavy Cranes.259 In doing so for the four shipments of Cranes, Doosan acted prudently.260
360.
When the Respondents repeatedly postponed the shipment of the Cranes due to its problems at the site in Egypt, Doosan had to cancel the four voyages that it had booked with the shipping company (DongBang).261 This resulted in a contractual entitlement of the shipping company to 40% of the contracted price for the cancelled voyages, which amounted to USD 6,140,000.262 This amount constitutes the minimum liability that Doosan incurred for its "prudent" contracting with the shipping company.263
361.
However, Doosan was able, by negotiation, to reduce this claim for 40% of the contracted price to USD 2,900,000.264 This constitutes a liability of Doosan under the contract with the shipping company.265 Said liability would not have been incurred by Doosan but for DIPCO's repeated postponements of the shipment.266
362.
The suggestion of Respondent 1's experts that Doosan should have insisted on a further reduction of this amount to USD 1,638,000 ignores the contractual obligation to pay USD 6,140,000 at cancellation and depends upon the unproven assumption that the shipping company must have been able to use its vessels booked for three of the four voyages for Doosan for other customers.267 Doosan's expert adopted the figure that has been contemporaneously used in settlement negotiations between Doosan and DongBang.268 In any event, the negotiated figure of USD 2,900,000 is much lower than the compensation to which DongBang is contractually entitled. In other words, the Respondents get the benefit of Doosan's negotiations on this cost item.269

4.2 Respondent's Position

363.
Any shipping cancellation costs allegedly incurred by Claimant may only be claimed if the Supply Agreement has been terminated for cause and if, hence, Article 10.4(c) of the FIDIC General Conditions applies.270
364.
The transportation contract in question booked vessels for the various planned separate deliveries of the Container Cranes, hut the delay in the Project was such that DongBang could be notified well in advance of the required dates.271 The cancellation could impact DongBang only for the first shipment booked and not for the later shipments. Therefore, the claimed figure should be reduced to USD 1,638,000 in order to represent a reasonable loss to Claimant.272
365.
Doosan's expert confirmed that Doosan had not yet paid a cancellation fee to DongBang and referred to a series of emails showing that Doosan's final liability would depend on the outcome of the present arbitration and that no final settlement hat been concluded between Doosan and DongBang.273 During his examination in the Hearing, Doosan's expert conceded that "the quantum of that liability is not defined with certainty. "274

4.3 Tribunal's Determination

366.
The Tribunal has found that the Supply Agreement was terminated for breach (see §§253 et seq above). Thus, Claimant is Inter alia entitled to both (i) costs or liabilities reasonably Incurred in the expectation of completing the works (Sub-Clause 19.6(c) of the FIDIC General Conditions) and (ii) loss of profit or other loss or damage sustained as a result of the termination (Sub-Clause 16.4(c) of the FIDIC General Conditions). As a consequence, whether the "Shipping Cancellation Costs" as claimed by Doosan constitute costs or loss of profit is irrelevant.
367.
The Parties' experts are in agreement that Doosan's liability for Shipping Cancellation Costs amounts to at least USD 1,638,000.275 However, the Parties do not agree on whether or not Doosan is entitled to the surplus of USD 1,262,000.276
368.
Respondent 1's experts confirmed that under the contract between Doosan and DongBang, Doosan's maximum exposure following the cancellation of all shipments would have been USD 6,140,000.277 However, they argue that the charge of 40% of the shipping costs as agreed upon in the Doosan-DongBang contract, in case of cancellation of the shipment prior to the ship's arrival at the loading port, would not be appropriate in the case at hand as the shipments were actually cancelled months in advance, allegedly leading to consequences less severe for DongBang than a cancellation at short notice.
369.
However, in doing so, Respondent 1's experts rely on a purely hypothetical contractual situation. As a matter of fact, the Doosan-DongBang contract only provides for two cancellation scenarios:

3) Cancellation: The Principal must pay to the Subordinate 40% of the contract price per voyage if before the arrival at port of loading, and 80% if after the arrival (based on NR tender).278

370.
There is no third scenario in case a shipment is cancelled way earlier; this was confirmed by Respondent 1's experts themselves.279
371.
When turning to the amount of the cancellation fee, the correspondence between Doosan and DongBang - as submitted by Claimant's expert - inter alia shows that DongBang offered a range from USD 2,500,000 to USD 2,900,000:

- Payment for the amount of compensation (USD 2.5Mil-USD 2.9Mil) during the idle period.280

372.
This reflects DongBang's readiness to go to a lower end of USD 2,500,000 in the negotiations. Although Doosan and DongBang did not (yet) finally settle the cancellation fee, the Tribunal is Convinced that Doosan will have to pay at least USD 2,500,000 to DongBang for the cancellation of the shipments. Since it was DongBang who proposed both the lower and the higher end of the possible settlement amount, the Tribunal is not convinced that Doosan will end up with an amount higher than USD 2,500,000.
373.
Therefore, the Tribunal finds that Doosan's claim for shipping cancellation costs is justified in the amount of USD 2,500,000. The surplus of USD 400,000281 is dismissed.