tutorial video tutorial video Discover the CiteMap in 3 minutes

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

Final Award

I. The Parties

A. Claimant

1.
Claimant is Dresser-Rand B.V. ("D-R" or "Claimant"), a company incorporated under the laws of The Netherlands, with a registered address as follows:

Dresser-Rand B.V.
Laanweg 12
3208 LC Spijkenisse
Netherlands.

2.
Claimant is represented in this arbitration by:

Mr. Brendan Cook
Ms. Courtney E. Giles
Baker &McKenzie LLP
700 Louisiana Street, Suite 3000
Houston, Texas 77002
USA
Tel.: +1 713 427 5000
Fax: +1 713 427 5066
brendan.cook@bakermckenzie.com
courtney.giles@bakermckenzie.com

Mr. Andy Moody
Mr. Richard Molesworth
Ms. Judith Mulholland
Baker &McKenzie LLP
100 New Bridge Street
London EC4V 6JA
United Kingdom
Tel.: +44 20 7919 1000
Fax: +44 20 7919 1999
andy.moody@bakermckenzie.com
richard.molesworth@bakermckenzie.com
iudith.mullholland@bakermckenzie.com

B. Respondent

3.
Respondent is Al Rushaid Petroleum Investment Company ("Al-Rushaid" or "ARPIC" or "Respondent"), a company incorporated under the laws of Saudi Arabia, Commercial Registration Number 2051007604, with a registered address as follows:

Al Rushaid Petroleum Investment Company
P.O. Box 31685
31952 Al Khobar
Saudi Arabia.

4.
Respondent was initially represented in this arbitration by:

Mr. Samuel Manok-Sanoian
Ms. Nicola Boulton
Byrne and Partners LLP
1 Plough Place
London EC4A IDE
United Kingdom
Tel.: +44 (0) 2078421616
Fax: +44(0)2078421617
samuel.manok-sanoia@bymeandpartners.com
nicola.boulton@byrneandpartners.com

Mr. Justin Fenwick QC
Mr. Timothy Chelmick
Mr. Peter Morcos
4 New Square
Lincoln's Inn
London WC2A 3RJ
United Kingdom
Tel.: +44 2078222000
j.fenwick@4newsquare.com
t.chelmick@4newsquare.com
p.morcos@4newsquare.com

5.
On 23 July 2018, Respondent informed the ICC that, from that date onwards, it would be represented by new Counsel:

Dr. Bader Al Busaies
Al Suwaiket and Al Busaies Attorneys at Law
Al Salah Tower, Level 8, Suite # 806
P.O. Box 4732
Al Khobar 31952
Saudi Arabia
Tel.: + 966 13 8877512
Fax: + 966 13 8877638
dr.bader@sb-lawyersweb.com

6.
Claimant and Respondent are also referred to individually as a "Party" and jointly as the "Parties ".

II. The Arbitral Tribunal

7.
On 14 September 2017, pursuant to Article 9(2) of the ICC Rules, the ICC Secretary General confirmed Peter Rees QC as co-arbitrator upon Claimant's nomination, and Nayla Comair-Obeid as co-arbitrator upon Respondent's nomination.
8.
On 13 November 2017, pursuant to Article 9(2) of the ICC Rules, the Secretary General confirmed Laurence Shore as the Chairman, upon the joint nomination of the co-arbitrators.
9.
The addresses of the Arbitral Tribunal members are:

Laurence Shore, Chairman, a dual national of the United States and the United Kingdom
BonelliErede
Via Barozzi 1
20122 Milan
Italy
Tel.: +390277113 837
laurence.shore@belex.com

Peter Rees QC, Co-Arbitrator, a national of the United Kingdom
39 Essex Chambers
81 Chancery Lane
London WC2A 1DD
United Kingdom
Tel.: +44 2076349030
peter.rees@39essex.com

Nayla Comair-Obeid, Co-Arbitrator, a dual national of Lebanon and France
Obeid Law Firm
Stratum Building, 4th Floor
Omar Daouk Street, Minet El-Hosn Sector
Beirut Central District
Lebanon
Tel: +961 1 363 790
nayla@obeidlawfirm.com

10.
The Parties have not lodged any objection to any Tribunal member's service on the Tribunal.
11.
The Tribunal has not engaged a secretary or administrative assistant to the Tribunal.

III. The Arbitration Agreement

12.
The arbitration agreement is contained in the Business Venture Agreement ("BVA") dated 18 March 2009, signed by Dresser-Rand Holdings (Netherlands) B.V. (as Claimant was formerly known), and Respondent. On 14 April 2013 the Parties entered into the Amendment of the Business Venture Agreement ("BVA Amendment").
13.
Article 15 of the BVA includes the following provisions:

"15.1 Any issue, dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce as present in force (the "1CC Rules").

15.2 There shall be three (3) arbitrators appointed in accordance with the 1CC Rules. One (1) arbitrator shall be selected by each of the Parties with the third selected by agreement between the arbitrators appointed by the Parties.

15.3 The seat of the arbitration shall be Dubai.

15.4 The language to be used in the arbitral proceedings shall be English.

15.5 Any award or procedural decision of the tribunal shall be made by a majority and, in the event that no majority may be formed, the chairman of the arbitral tribunal shall proceed as if he were a sole arbitrator.

15.6 By agreeing to arbitration pursuant to this Article the Parties waive irrevocably their right to any form of appeal review or recourse to any state court or other judicial authority, in ns far as such waiver may validly be made.

15.7 In the event of multiple contemporaneous disputes under this Agreement, the provisions of this Agreement shall control all such disputes and the arbitration proceedings under all such contemporaneous disputes shall be consolidated into one proceeding in front of a single panel of arbitrators selected pursuant to this Article 15.

15.8 Notwithstanding anything to the contrary provided in this Article 15 and without prejudice to the above procedures, nothing in this Agreement shall prevent Dresser-Rand from applying to any court of competent jurisdiction for temporary injunctive relief or other provisional judicial relief with respect to confidential business information or protection of its material intellectual property, and each Party agrees that any violation of Dresser-Rand's rights with respect to a violation of obligations concerning confidential business information or protection of its material intellectual property would result in irreparable harm to Dresser- Rand for which monetary damages would be insufficient."

14.
Article 17.4 of the BVA further provides as follows:

"17.4 This Agreement and the relationship of the Parties hereunder shall be governed by and construed in accordance with English law, without regard to any conflicts of laws provisions. For the avoidance of any doubt, the Parties acknowledge and agree that the Articles of Association and the obligations of the Parties with respect there to are governed by the law of the Kingdom of Saudi Arabia."

15.
Under Article 5.1 of the Amendment to the BVA, "the terms and conditions of the Business Venture Agreement and the Articles of Association apply and remains in full force and effect" except "as expressly amended, waived or released by virtue of" the Amendment or an exhibit to the Amendment. Neither the Amendment or an exhibit to the Amendment altered the Parties' arbitration agreement and governing law provision in the BVA.

IV. Seat - Applicable Law - Language

16.
The present dispute arises out of the BVA, and also concerns the BVA Amendment and the Articles of Association. Pursuant to the Arbitration Agreement set out above, the seat of arbitration is Dubai.
17.
Since the BVA was signed in 2009, the present arbitration is conducted according to the ICC Rules in force as from 1 January 1998 ("ICC Rules").
18.
Pursuant to Article 17.4 of the BVA, the law applicable to the substance of the matters in dispute is the English law. Moreover, "[f]or the avoidance of any doubt, the Parties acknowledge and agree that the Articles of Association and the obligations of the Parties with respect there to are governed by the law of the Kingdom of Saudi Arabia."
19.
The language of this arbitration is English, as agreed by the Parties pursuant to Article 15.4 of the BVA.

V.Procedural history

20.
The Tribunal summarizes in this section of the Award the procedural framework and major procedural events in the arbitration. It should be noted that this summary does not purport to be an exhaustive listing of the entire record of communications with the Tribunal in the arbitration. Rather, we set out an indication of the major items submitted to the Tribunal, and the Tribunal's major rulings.
21.
On 23 February 2017, Claimant filed a Request for Arbitration and Notice of Intent to Seek Interim Relief, together with eight exhibits (C-l to C-8) ("Request"). At paragraph 14 of the Request, Claimant nominated Mr. Peter Rees QC as co-arbitrator. The ICC gave the arbitration the following case reference: Case No. 22627/ZF/AYZ.
22.
On 24 July 2017, following a co-arbitrator nomination that was unsuccessful, Respondent nominated Dr. Nayla Comair-Obeid as co-arbitrator.
23.
Further to the Parties' correspondence dated 25 and 30 May 2017, the Parties agreed for an additional extension of time until 30 June 2017 for the submission of Respondent's Answer to the Request for Arbitration and Notice of Intent to Seek Interim Relief ("Answer to the Request"). Respondent did not file an Answer to the Request, as provided for under Article 5 of the ICC Rules.
24.
On 14 September 2017, pursuant to Article 9(2) of the ICC Rules, the ICC Secretary General confirmed Mr. Rees QC as co-arbitrator upon Claimant's nomination, and Dr. Comair-Obeid as co-arbitrator upon Respondent's nomination.
25.
Following the Parties' exchange of correspondence dated 10 and 12 October 2017, the co-arbitrators jointly nominated Laurence Shore as Chairman of the Tribunal on 26 October 2017.
26.
On 13 November 2017, pursuant to Article 9(2) of the ICC Rules, the Secretary General confirmed Laurence Shore as the Tribunal's Chairman upon the joint nomination of the co-arbitrators.
27.
Also on 13 November 2017, the Secretariat informed the Tribunal that the case reference was referred to the ICC International Court of Arbitration under Article 6(2) of the ICC Rules (Respondent not having filed an Answer to the Request for Arbitration), and that the ICC Court permitted the arbitration to proceed, with the Tribunal deciding "any question of jurisdiction or of whether the claims may be determined together", after giving the Parties an opportunity to comment. By letter dated 5 January 2018, Respondent stated that it "does not intend to raise any objections to the Tribunal's jurisdiction". Claimant did not raise any objections. The Tribunal determined (see below) that, by execution of the Terms of Reference, each Party confirmed that it had no objection to the appointment of the Tribunal members, that it expressly waived any procedural objections, and that it accepted that the Tribunal had jurisdiction over the claims alleged as of the date of the Terms of Reference.
28.
On 21 and 30 November and 17 December 2017, the Tribunal sent correspondence to the Parties, indicating certain procedural dates, to which the Parties provided timely responses.
29.
On 15 December 2017, Claimant filed an Application for Interim Measures ("Application") together with four exhibits (C-2, C-3, C-4, C-9) -previously produced with the Request - and the Witness Statement of Mr. Sheikh.
30.
By email to the Parties dated 18 December 2017, the Tribunal noted the following timetable:

"By 21 December: Respondent will please propose a date by which Respondent would file its opposition to Claimant's Application for Interim Measures. Claimant may file by 23 December any comments on Respondent's proposed date. The Tribunal members will thereafter confer and fix the date".

31.
Following Parties' submissions, the Tribunal set 18 January 2018 as deadline for Respondent to file a response to Claimant's Application.
32.
On 20 December 2017, pursuant to Article 18(2) ICC Rules, the ICC Court extended the time limit for establishing the Terms of Reference until 28 February 2018.
33.
In response to the Tribunal's above-referenced 18 December 2017 email, Respondent, by letter dated 21 December 2017, proposed to file its Response to the Application by 22 January 2018. On 22 December 2017, Claimant replied with the counter-proposal of 8 January 2018.
34.
On 22 December 2017, further to a query from the Tribunal, Claimant commented on the 2017 Executive Regulations to the UAE Legal Profession No. 23 of 1991, and gave its view that such Regulations posed no bar to non-UAE lawyers from appearing on behalf of Parties in UAE seated arbitral proceedings. Respondent subsequently accepted this view in a letter dated 5 January 2018.
35.
On 31 December 2017, having considered Respondent's proposal and Claimant's counter-proposal for Respondent's Response to the Application, the Tribunal set 18 January 2018 as the date for the Response.
36.
On 3 January 2018, further to queries from the Tribunal, Claimant provided inserts into the draft of Terms of Reference document and its proposed procedural timetable. After requesting an extension, on 5 January 2018, Respondent submitted its inserts to the draft Terms of Reference and its procedural timetable proposals. On 9 January 2018, with permission of the Tribunal given on 3 January 2018 in view of the extension taken by Respondent, Claimant provided comments on Respondent's insertions and procedural timetable proposals.
37.
On 5 January 2018, Respondent stated that it had instructed three New Square barristers. Dr. Comair-Obeid and Mr. Shore disclosed that two of those barristers, Mr. Chelmick and Mr. Marcos, appeared before them in an ICC hearing that had concluded a couple of years previously. Both members of the Tribunal specified that their previous appearance in that case did not bear on their independence and impartiality in the present arbitration.
38.
Pursuant to previous correspondence, the Tribunal held a conference call on 16 January 2018 (7.30 p.m. Dubai time) with the Parties in order to discuss the Procedural Timetable and the Terms of Reference. On behalf of Claimant, Mr. Brendan Cook (Baker & McKenzie, Houston), Mr. Andy Moody (Baker & McKenzie, London), and Dr. Grosso (Senior Counsel, Siemens AG) participated on the call, while on behalf of Respondent, Mr. Manok-Sanoian (Byrne and Partners LLP, London), Mr. Chelmick, and Mr. McDonald (4 New Square, London) were present.
39.
On 17 January 2018, Claimant asked further clarifications from the Tribunal in relation to the nature of the relationship(s) that existed between Respondent's newly appointed Counsel and the parties and/or issues in the prior arbitration referenced by Arbitrators Shore and Comair-Obeid. On 23 January 2018, the Tribunal answered Claimant's inquiries by stating that:

"Arbitrators Shore and Comair-Obeid confirm that there is no connection, based on the filings to date, between this case and the arbitration in which Messrs Chelmick-Marcos appeared before them. On this basis there is nothing more that need be said. Simply for the sake of good order, the Parties are further informed that while Dr. Comair-Obeid was nominated by the party that later retained Chelmick/Morcos, to the extent there was any participation of Chelmick-Marcos in the case at the time of nomination, such participation was not known to her. On the above bases, the Tribunal considers that Chelmick-Marcos may continue to act"

40.
On 24 January 2018, Claimant confirmed that it had no objection to the continued participation of Messrs. Chelmick and Marcos in the proceedings.
41.
On 18 January 2018, Respondent requested an extension until 19 January 2018 to file its Response to the Application. Upon Claimant's indication that it had no objection to the extension, the Tribunal granted, that same day, the extension.
42.
On 19 January 2018, Respondent filed its Response to Claimant's Application for Interim Measures ("Respondent's Response").
43.
By letter dated 23 January 2018, Claimant requested the opportunity to reply to Respondent's Response.
44.
On 24 January 2018, the Tribunal set out the remaining procedural steps in relation to the Application:

"Interim measures:

Claimant shall reply to the jurisdictional objection by 30 January.

The Tribunal will plan to rule on the objection by 12 February.

If the objection is not upheld, Respondent shall file a substantive opposition by 23 February, with any supporting evidence, including any witness evidence.

Claimant shall file a reply submission, with any further supporting evidence, including any witness evidence, by 7 March.

There shall be a one day in-person hearing in London on 22 March, on which day any witnesses must be physically present".

45.
On 30 January 2018, Claimant filed its Reply to the Respondent's Jurisdictional Objection - In relation to Claimant's Application for Interim Measures dated 15 December 2017 ("Claimant's Reply") raised in the Respondent's Response - together with 10 exhibits (CL-1 to CL-10).
46.
On 5 February 2018, the Parties agreed on the interim steps and schedule before the final hearing previously set by the Tribunal (23 January 2017, following consultation with the Parties on the 16 January teleconference) for 21-25 January 2019. Accordingly, the Parties sent to the Tribunal the revised Procedural Order No. 1 and Summary of Timetable.
47.
On 13 February 2018, the Tribunal issued a Procedural Order Regarding Claimant's Application ("Procedural Order on Interim Measures"). The Tribunal dismissed the Application and reserved any decision on costs regarding the Application.
48.
On 22 February 2018, the ICC Court extended the time limit for establishing the Terms of Reference until 30 March 2018, pursuant to Article 23(2) ICC Rules.
49.
On 7 March 2018, the Tribunal issued Procedural Order No. 1: Procedural Timetable ("PO1: Procedural Timetable").
50.
Following the extension given by the ICC Court, the Tribunal issued the Terms of Reference ("ToR") on 28 February 2018, with the final signature dated 18 March 2018.
51.
On 7 May 2018, pursuant to Procedural Order No. 1, Claimant filed its Statement of Claim ("SoC") accompanied by exhibits (C-l to C-279) and legal authorities (CL-1 to CL-14) and together with the Witness Statements of Mr. Mai dated 4 May 2018, Mr. Sheikh dated 3 May 2018, Mr. Craig dated 3 May 2018, Mr. Veal dated 4 May 2018, and the Expert Report of Andrew Grantham dated 7 May 2018 (the latter submitted with exhibits C-EXP-1 to C-EXP-73).
52.
On 23 July 2018, Respondent stated that, in consideration of a liquidation proceedings of Dresser Rand Arabia, "a limited liability company", filed before the Saudi Commercial Court in Dammam city under Case No. 2854 year 1439H, "the ICC proceedings should be dismissed or stayed as the liquidation proceedings in Saudi conflict with the ICC proceedings." Respondent appointed Dr. Bader as its Counsel representative in the arbitration, replacing the Byrne law firm and 4 New Square barristers.
53.
On 25 July 2018, Claimant stated that the liquidation proceedings did not preclude the resolution of Claimant's claims in the arbitration proceedings, as the liquidation proceedings concerned the business of Dresser-Rand Arabia and its rights and obligations vis-a-vis the creditors.
54.
By letter dated 1 August 2018, Respondent reiterated its request for the Tribunal to dismiss or to stay the ICC arbitration proceedings pending the determination and resolution of a liquidation proceeding before the Saudi Court or, alternatively, it requested a six-week extension of time to submits its response to the SoC.
55.
On 3 August 2018, Claimant stated that the liquidation proceedings do not affect the arbitration proceedings, and while the liquidation "may affect a formulation of specific performance, it does not negate Claimant's claims". Claimant further objected to the requested six-week extension for Respondent to submit the response to its SoC, as it was too long, and it would have required a shift of other deadlines. Instead, it proposed a two-week extension.
56.
On 7 August 2018, having considered the Parties' submissions dated 23 July 2018, 25 July 2018, 1 August 2018 and 3 August 2018, the Tribunal denied Respondent's application to dismiss or stay the arbitration. The Tribunal reserved the right to provide the reasons for its determination at a subsequent date.
57.
On 7 August 2018, the Tribunal issued the Procedural Order No. 1: Amended Procedural Timetable ("PO1: Amended Timetable").
58.
By email and letter sent on 26 August 2018, Respondent informed the Tribunal that it would not submit a Statement of Defense due, by way of extension granted by the Tribunal on 7 August 2018, on 27 August 2018. Respondent stated that:

"We are instructed not to file a Statement of Defense on behalf of the Respondent in these proceedings as the parties are currently involved in settlement discussions. On 23 August 2018, We understand that a deal which will settle all outstanding issues is expected to be concluded shortly so please find attached letter in this regard."

59.
On 27 August 2018, per the Tribunal's instructions, Claimant submitted a response to Respondent's letter, stating that Claimant did not agree with Respondent to a stay of the arbitration proceedings and that it did not agree to any such stay: "For the avoidance of doubt, our client also did not agree to a suspension or delay to today's deadline for the filing of the Respondent's Statement of Defence. In the Claimant's view, the deadline is today and any failure to serve the Statement of Defence is a breach by the Respondent of the Tribunal's order of 7 August 2018 extending the deadline to today".
60.
On 28 August 2018, Respondent replied that: "For the avoidance of any doubt, the Respondent has not requested a stay of these proceedings or a further extension of the deadline for the filing of the Respondent's Statement of Defence. The Respondent merely wished to make the Tribunal aware of the fact that it will not be submitting a Statement of Defense given that the parties have resumed settlement discussions. The Respondent does not wish to incur the time and expense of filing a Defence in circumstances where the Respondent believes that an amicable resolution to this dispute will be concluded shortly. It is not an attempt by the Respondent to delay matters contrary to the suggestion made by the Claimant."
61.
On 28 August 2018, the Tribunal took note that Respondent chose not to submit a Statement of Defense.
62.
On 30 August 2018, pursuant to Article 24(2) ICC Rules, the ICC Court extended the time limit for rendering the final award until 30 April 2019.
63.
On 7 September 2018, pursuant to section B(6) of PO1: Amended Timetable, Claimant submitted Claimant's Requests for Documents ("Claimant's Documents Requests").
64.
On 17 September 2018, Respondent submitted its Objections to Claimant's Documents Requests.
65.
On 3 October 2018, Claimant provided its responses to Respondent's Objections to Claimant's Documents Requests.
66.
On 16 October 2018, as anticipated in its determination dated 7 August 2018, the Tribunal issued the Procedural Order No. 2 ("PO2") providing the reasons for its decision denying Respondent's application to dismiss or stay the proceedings.
67.
On 16 October 2018, when confirming the receipt of PO2, Claimant informed the Tribunal that "on 18 September 2018, the Saudi Commercial Court in Dammam dismissed the liquidation proceedings".
68.
On 18 October 2018, the Tribunal issued its Order on Claimant's Requests for Documents ("Order for Documents") ordering Respondent to make production of Claimant's requests numbers 1 through 7 and numbers 12 through 24, by 8 November 2018, revising the date (5 November 2018) previously set out in PO1: Amended Timetable. On 26 October 2018, the Tribunal addressed (i) Claimant's application for reconsideration of the Order for Documents dated 23 October 2018 in relation to request numbers 8 through 11 which were denied; and (ii) Respondent's reply dated 25 October 2018, holding that:

"While the Claimant has now narrowed these requests, the Tribunal notes that in light of the Respondent’s arguments in its letter of 25 October 2018, and the timetable to which we are working, the Tribunal would need to be persuaded that the documents requested are material to the outcome of the case — such materiality is, of course, also an Article 3 IBA Rules requirement. The Tribunal considers that materiality was not adequately addressed by the Claimant in either its original request or narrowed request. Accordingly, the Tribunal maintains its original rulings regarding document request numbers 8 through 11, and the application is denied."

69.
On 12 November 2018, four days later than required, Respondent produced copies of the documents it was ordered to provide pursuant to the Tribunal's Order for Documents.
70.
On 30 November 2018, pursuant to paragraph 8 of PO1: Amended Timetable and following an extension requested on 13 November 2018 and granted by the Tribunal on 17 November 2018, Claimant submitted a Supplement to the Statement of Claim ("SoC Supplement") together with factual exhibits (C-280 to C-296), legal authorities (CL-15 to CL-16), the Supplemental Witness Statement of Mr. Sheikh dated 28 November 2018, and the Supplemental Expert Report of Andrew Grantham dated 30 November 2018 (the latter submitted with Appendixes 1, 2.1 and 2.2 and exhibits C-EXP-74 to C-EXP-78).
71.
On 6 December 2018, the Tribunal made enquiries to the Parties regarding the organization of the January evidentiary hearing. In particular, Respondent was asked whether it would attend the hearing in view of its previous position on not providing a Statement of Defence.
72.
On 10 December 2018, absent Respondent's reply, the Tribunal asked Respondent once again whether it agreed on London as the hearing venue, and whether it would attend the hearing.
73.
By letter dated 12 December 2018, Claimant requested the assignment of a pre-trial hearing in connection with the current arbitration, a possibility provided for in the PO1: Amended Timetable.
74.
On 13 December 2018 the Tribunal gave the following instructions to the Parties:

"[...] Pursuant to the Terms of Reference and Procedural Order No. 1, notifications and communications transmitted by e-mail to the Tribunal and from the Tribunal shall be deemed to have been validly made, and communications shall preferably be made by e-mail.

E-mails from the Tribunal have been properly transmitted to Respondent's legal representative (Dr. Bader) and replies have been requested from Dr. Bader regarding his client's position on the geographic location of the final hearing, but Dr. Bader has failed to respond.

The Tribunal shall very shortly issue directions on the location of the final hearing. If Dr. Bader, on behalf of Respondent, still wishes to express a view on the matter of final hearing location, he shall do so by 11.59 pm this evening Dubai time.

In this regard, the Tribunal observes that pursuant to Article 14 of the applicable ICC Rules, as well as the Terms of Reference and Procedural Order No. 1, absent agreement by the parties and after consulting with the parties, the Tribunal will fix the location of the final hearing. Such location may be at a place other than the seat or place of arbitration. As previously communicated to the parties, the Tribunal will designate either London or Dubai to be the location of the final oral hearing. [...]"

75.
On 14 December 2018, absent Respondent's answer to the Tribunal's queries dated 13 December 2018, the Tribunal issued the following directions:

"Unless Respondent demonstrates to the Tribunal by 5 pm Dubai time on Monday, 17 December 2018, that it would be impossible for Respondent to attend a final hearing located in London, England (United Kingdom), beginning 21 January 2019, the Tribunal, pursuant to Article 28 of the UAE Arbitration Law, will conduct the final hearing in London, while the seat of arbitration will remain Dubai."

76.
Respondent failed to reply. On 17 December 2018, the Tribunal noted that "[i]t is now past 5 pm Dubai time 17 December 2018, and the Tribunal has not received any communication from Respondent per our messages below". The Tribunal confirmed that the final hearing would be held in London, pursuant to ICC Article 14, PO1: Amended Timetable, the Terms of Reference, and Article 28 of the UAE Arbitration Law.
77.
On 20 December 2018, as specified in PO1: Amended Timetable, Respondent was due to file its Statement of Rejoinder, but ultimately, without replying to Tribunal's communications from 13 December 2018, 14 December 2018 and 17 December 2018, Respondent did not make the submission.
78.
On 21 December 2018, the Tribunal noted that:

"(a) Respondent has not replied to the communications described below; and

(b) Respondent failed to submit a Statement of Rejoinder by the 20 December 2018 deadline as specified in Procedural Order No.1 (pursuant to the amended timetable issued on 7 August 2018).

The next deadline in the timetable is 31 December 2018 /request for witnesses/experts to attend the final hearing for the purposes of cross-examination). Respondent has chosen not to adduce witness/expert evidence, and therefore will not be presenting any such witnesses/experts for examination at the hearing."

79.
By 31 December 2018, with a deadline to request the appearance of the individuals who provided statements/reports on behalf of Claimant for cross-examination at the hearing, Respondent did not provide any comment.
80.
On 10 January 2019 (5 p.m. London time), pursuant to notice provided to all counsel, a pre-hearing teleconference was held and was attended by Counsel for Claimant (Mr. Cook, Mr. Moody and Mr. Molesworth from Baker & McKenzie LLP), Dr. Grosso (Claimant's client representative) and the members of the Tribunal. Respondent (and its counsel) did not attend. Subsequently, on 13 January 2019, the Tribunal issued a Summary of the Pre-hearing Teleconference ("Summary").
81.
On 14 January 2019, Claimant submitted a pre-hearing Skeleton Argument. Respondent did not submit a skeleton argument.
82.
From 21 to 23 January 2019, as established during the pre-hearing conference and as communicated in the Summary, the hearing on the merits took place at the IDRC in London. All Tribunal members were present.
83.
On behalf of Claimant, the following were in attendance: Brendan Cook, Andy Moody, Richard Molesworth, and Dr. Grosso (client representative).
84.
Respondent (and its Counsel) chose not to attend and were not present.
85.
The evidentiary hearing concluded on 22 January 2019 (one day earlier than scheduled during the pre-hearing conference).
86.
On 28 February 2019, in accordance with the Tribunal's order at the hearing of 22 January 2019, the Claimant submitted its Post Hearing Submissions ("Post Hearing Submission"), together with the Second Supplemental Expert Report of Andrew Grantham dated 28 February 2019 ("Supplemental Expert Report") and its Bill of Costs.
87.
By letter dated 14 March 2019, Respondent expressed its disagreement with the contents of Claimant's Post Hearing Submission and Bill of Costs.
88.
On 19 March 2019, Claimant replied to Respondent's 14 March 2019 letter.
89.
On 25 April 2019, pursuant to Article 24(2) ICC Rules, the ICC Court extended the time limit for rendering the final award until 28 June 2019. Subsequently, by letter dated 27 June 2019, pursuant to Article 24(2) ICC Rules, the ICC Court extended the time limit for rendering the final award until 31 July 2019.
90.
The Tribunal, considering that the Parties had a reasonable opportunity to present their cases, declared the proceedings closed on 5 July 2019 pursuant to Article 22 of the ICC Rules. On the same date, the draft Award was submitted to the Court for approval pursuant to Article 27 of the ICC Rules.

VI. Summary of the Parties' Positions

91.
The Tribunal summarizes the Parties' submissions, in chronological order. The Tribunal underlines that Respondent, in meeting the Claimant's case, only submitted a substantive response to the Request for Arbitration in the Terms of Reference, in addition to responding to Claimant's Application seeking interim relief against Respondent. Accordingly, the summary below is, inevitably, predominantly centered around Claimant's position.

A. Request for Arbitration

92.
In the Request, Claimant alleged that the arbitration arose from numerous violations of contracts that the Parties entered into in relation to business endeavors undertaken through a Joint Venture in the Kingdom of Saudi Arabia.1
93.
The Joint Venture was established for manufacture of steam turbines, packaging of centrifugal and reciprocating compressors, and the provision of various services and technical support regarding other equipment. Claimant was to provide the technology to the Joint Venture, while Respondent had to provide land and utilities. According to Claimant, the business relationship was strained from the beginning, as Respondent failed to honor its commitments, such as providing a facility to conduct the contemplated business.
94.
Claimant noted that ARPIC had initiated separate proceedings against Mr. Craig, former General Manager of the Joint Venture, in the Administrative Court in Dammam (the "KSA Proceedings"). These proceedings were commenced in June 2016, with the aim of holding Mr. Craig personally liable for alleged mismanagement of the Joint Venture. Claimant argued that claims brought in the KSA Proceedings were not only frivolous, but were also inadmissible, since such claims (relating to management or mismanagement of the Joint Venture) had to be to be settled pursuant to "the Rules of Arbitration of the International Chamber of Commerce as at present in force".2 Claimant also indicated that a hearing had been held in the Dammam Court on 20 February 2017. At that time ARPIC filed its Statement of Claim before the Court, in which it presented a "new" claim seeking financial information, i.e., an audit of the business of the Joint Venture.3
95.
Respondent also commenced a separate proceeding against D-R BV (or one of its affiliates), and Claimant was trying to ascertain "the precise nature of the claims involved in that case" (the "D-R Case").4
96.
These Court proceedings confirmed, according to Claimant, that ARPIC had engaged in forum shopping to avoid having the issues resolved before an arbitral tribunal. Accordingly, Claimant was seeking, inter alia, damages related to ARPIC's contract breaches, as well as an interim relief to assure compliance with the controlling contracts and maintaining the Joint Venture's management.5 The content of the Request is summarized more fully below, sub parts (i) - (x).

(i) Business Venture Agreement

97.
Claimant's predecessor company, Dresser-Rand Holdings (Netherlands) B.V. ("Dresser-Rand Holdings"), and Respondent entered into the BVA on 18 March 2009, under which they agreed to establish and operate a new Limited Liability Company called Dresser-Rand Arabia LLC ("D-R Arabia" or "Joint Venture"). Pursuant to Clause 2.5 of the BVA, Dresser Rand Holding was assigned 50.1% of the Joint Venture's shares, while ARPIC was assigned 49.9% of the shares.6
98.
The business of the Joint Venture (Clause 3.1 of the BVA) consisted mainly of:

• "the manufacture of Dresser-Rand single-stage steam turbines;

• the packaging of Dresser-Rand centrifugal and reciprocating compressors, including drivers such as motors and turbines;

• the repairing, revamping and upgrading of Dresser-Rand name plate and non-name plate compressors (including internally geared compressors), electric motors, generators, and steam, power and gas turbines; and

• the provision of technical support services in relation to turbines, compressors, motors and generators, including installation, systems integration, maintenance, project management, condition monitoring, parts inventory management, and training."7

99.
Day-to-day management of the Joint Venture (BVA Clause 5) was delegated to the General Manager: Mr. Craig was appointed on 27 December 2009 and his appointment was ratified by a Partners Resolution of D-R Arabia dated 28 October 2010. Subject to ARPIC's consent, D-R BV also appointed Mr. Sheikh as Deputy General Manager, responsible for finance, accounting, compliance and other administrative matters. While ARPIC was required to nominate a Controller, a person qualified in finance and account, it chose not to.8
100.
According to the BVA, as well as other documents, Mr. Craig was given broad authority to manage the Joint Venture. As to the claims brought by ARPIC in the KSA Proceedings against Mr. Craig, Claimant underlined that Respondent had never previously directed any complaint against Mr. Craig: "ARPIC even signed many of the checks written in support of activities that it now apparently complains of".9
101.
The Statement of Claim filed in the KSA Proceedings alleged violations by Mr. Craig of the Articles of Association ("Articles"). However, D-R contended that the Articles are cumulative of the rights set forth in the BVA, imposed few limitations of Mr. Craig's authority, and, in any case, the BVA is the predominant document pursuant to Clause 2.7.10
102.
The financial problems of the Joint Venture were directly traceable to ARPIC,11 which was supposed to provide land and facilities, but failed to make adequate arrangements from an early stage.
103.
Dresser-Rand Company, an affiliate of D-R BV, secured a contract with Saudi Arabia Oil Company ("Saudi Aramco") worth approximately USD 141 million. This commitment originated from a Corporate Procurement Agreement ("CPA") dated 17 March 2009, in which Dresser-Rand Company agreed to supply equipment and services in Saudi Arabia, subcontracting certain works under the CPA to the Joint Venture.12
104.
The first series of purchase orders issued by Dresser-Rand Company to the Joint Venture was the Joint Venture's "Yanbu Project" ("YanbuProject").13 Pursuant to Clause 3.9 of the BVA, "[p]romptly following the commercial registration of the Company, ARPIC shall cause Al Rushaid Investment Company ("ARIC") to enter into a Lease with the Company in the form attached hereto as Exhibit C." Exhibit C provided that ARPIC would build a facility of its land, at ARPIC's expense and then it would lease it to D-R Arabia once the building was completed.14
105.
In 2010, after the Parties learned that ARPIC's land could not be used to build a facility, they had to find another, temporary, space in order to carry out the Yanbu Project. The Joint Venture was forced to open a separate industrial branch, the Jubail Branch, to carry out the project, appointing Mr. Craig as manager.15
106.
In October 2010, after considering to leave the Joint Venture, ARPIC decided to stay.16
107.
On 6 November 2010, D-R Arabia entered into a two-year lease with Cleveland Bridge Arabia limited, an Al Rushaid affiliate, to lease part of its facility located in Jubail for USD 660,000 per year. D-R BV contributed USD 523,000 to refurbish the Cleveland Bridge facility to complete the Yanbu Project.17
108.
Since the Cleveland Bridge lease was only temporary, on 23 October 2010 D-R Arabia entered into a 20-year lease agreement with the Saudi Industrial Property Authority ("Modon") to lease land and build a new facility in the Dammam Second Industrial City ("Modon Lease"). The Modon Lease required DR Arabia to build a facility on the land ("Dammam Facility"), subject to Modon's approval. At first, ARPIC paid the first installment of the Modon Lease, but afterwards it charged that same installment to the Joint Venture, stating in a letter that "the expense for the Dammam land lease should be borne by the JV".18 Ultimately, ARPIC refused to participate in the costs to build the Dammam Facility, leaving to D-R BV "both the cost to build the facility and the cost of the machinery and equipment needed in the facility".19 The Dammam Facility was finally completed in 2013 with an overall budget of approximately USD 55 million.
109.
In March 2012, ARPIC was notified that D-R Arabia could not use the Cleveland Bridge facility any longer as the facility was not suitable and the costs to modify it were greater than those incurred for the Dammam Facility. D-R Arabia received various bids for the Dammam Facility, deciding eventually to sign a Letter of Intent with Khalifa a. Al-Mulhelm & Partners Co. ("KAMCO"), which offered the lowest price. ARPIC refused to approve the Letter of Intent. D-R BV was therefore forced to have Dresser-Rand Materials Center LLC ("D-R Materials") as an affiliate to proceed with the construction of the facility, absent ARPIC's formal approval.20
110.
The Yanbu Project was completed in March 2013, totaling net losses of approximately USD 13,500,000 to the Joint Venture, due to delays in finding a facility and unforeseen costs and expenses. ARPIC was dissatisfied with the losses, even though "virtually all of the losses that have been complained of by ARPIC during the course of the Joint Venture, and more particularly in the KSA Proceeding, are directly attributable to its own breaches of the BVA and other malfeasance."21 Moreover, D-R BV alleges that it (or its affiliates) bore the Yanbu commissions, the costs of the Dammam Facility and paid ARPIC for leasing the Cleveland Bridge facility.22
111.
The Parties negotiated the option of buying out ARPIC's interest in the Joint Venture, but ARPIC eventually decided to continue with its commitment in the Joint Venture.23 However, while the BVA provided that both Parties would have "material administrative responsibilities", and D-R BV complied with its duties and obligations, ARPIC interfered or refused to cooperate in the efficient conduct of the Joint Venture.24

(ii) Capital contributions required under the BVA

112.
Pursuant to BVA Clause 2.3, the Parties were obliged to make initial capital contributions to D-R Arabia and to contribute to the operating expenses ("OPEX") and capital expenses ("CAPEX") if the generated cash flow was insufficient. While the Parties had initially stated that the share capital of D-R Arabia would be SR 2 million, they later reduced it to SR 1.5 million, only to increase it in 2014 to obtain certain duty exemptions, tax benefits and financial concessions.25
113.
As for CAPEX and OPEX, additional funding was required. D-R BV (or its affiliates) paid all of the additional CAPEX and OPEX due.26

(iii) The Joint Venture's regulatory and administrative duties and responsibilities

114.
According to Claimant, ARPIC did not meet its obligation in relation to local rules and regulations in Saudi Arabia as it did not provide the support that was envisaged by the Parties. D-R Arabia had to find different ways to meet the local regulatory requirements, since ARPIC breached its obligation in Clause 12 of the BVA, which included ARPIC's execution of D-R Arabia's audited balance sheets for 2014 and 2015, and the related Article 180 Resolutions which ARPIC refused to execute, breaching, inter alia, Clause 3.3 of the BVA.27
115.
Due to ARPIC's inaction, the 2014 and 2015 annual accounts were not timely filed, causing the initial rejections of the application to renew the Commercial Registration of the Dammam Branch. PwC recognized ARPIC's lack of intervention when it issued the qualified audit reports for 2014 and 2015. This, according to Claimant, demonstrated how ARPIC rendered more burdensome the required corporate tasks.28

(iv) BVA Amendment and Articles of Association

116.
Given ARPIC's refusal to make any contribution, D-R BV paid all the expenses of the D-R Arabia including those that ARPIC should have covered. After several discussions, the Parties entered into an Amendment of the BVA ("BVA Amendment"). The BVA Amendment acknowledged that D-R BV succeeded D-R Holdings (Netherlands) B.V. in all its rights and obligations. The Parties also acknowledged the pending OPEX and CAPEX expenses:

"4.1 Operating Expenses.

The parties are settling and compromising a dispute with respect to cash operating expenses incurred by the Company prior to December 31, 2012. As a result thereof, Dresser-Rand shall cause its affiliate, Dresser-Rand Company (DRC) to issue a change order for U.S. $9,720 million with respect to the purchase orders between DRC and the Company that will result in a credit against outstanding invoices and a payment by DRC to the Company for an aggregate amount equal to $9.72 million. ARPIC shall be responsible to pay U.S. $4,355,050 for operating expenses incurred by the Company prior to December 31, 2012. ARPIC shall promptly fund the Company this $4,355,050. ARPIC's shareholder loan amount shall be increased to $5,380,630 for operating expenses incurred prior to December 31,2012, reflecting the finding of this $4,355,050 together with [$1,025,880], representing cash operating expenses previously contributed by ARPIC. D-R will pay U.S. 5,402,195 for cash operating expenses incurred by the Company prior to December 31, 2012. Dresser-Rand's shareholder loan amount shall be increased by U.S. $5,402,195 with respect to operating expenses as of December 31, 2012.

ARPIC and Dresser-Rand agree (and agree to cause their affiliates) that (i) the commission outstanding to Al Rushaid Trading Company in an amount to be agreed by Dresser-Rand Company and Al Rushaid Trading Company taking into account whether Mr. Hack is able produce the email discussed elsewhere and whether Major Buyouts were included in the last Complete Unit order concluded in the Kingdom of Saudi Arabia shall hereby be assigned to the Company and ARPIC shall be given a credit for the assignment towards its payment obligations hereunder and (ii) that the Company may assign such commission in whole or in part to affiliates of Dresser-Rand towards satisfaction of amounts due to one or more of them pursuant to Section 4.4 hereof.

4.2 Capital Expenses.

a. ARPIC shall promptly fund the Company $8,316,920 representing its 49.9% of the capital expenditures incurred by the Company through December 31, 2012. ARPIC waives and shall cause its affiliates to waive the amounts representing the $70,090, which ARPIC previously contributed to capital expenditures prior to December 31, 2012. As a result therefrom, ARPIC's shareholder loan shall be increased by a further $8,316,920 to $8,387,010. Dresser-Rand will pay U.S. $8,420,625 for capital expenditures incurred by the Company through December 31, 2012, and its shareholder loan has been increased accordingly.

b. Notwithstanding anything in the Business Venture Agreement or the Articles of Association to the contrary, the General Manager shall be entitled to make expenditures that are within the budgets or capital plans approved by the Board. Moreover, the agreements set forth on Schedule 4.2(b) are hereby ratified by the parties and the General Manager is authorized to perform each agreement, including making the payments thereunder."29

117.
According to the BVA Amendment, ARPIC undertook to pay USD 12,6711,970 for the outstanding contributions due at that time.
118.
The BVA Amendment specified the issues relating to the Cleveland Bridge Lease and the Dammam Facility. The BVA and Articles of Association, "except as expressly amended, waived or released",30 continued to be in full force and effect. It also acknowledged the issues with the Yanbu Project and the various contracts and commitments in relation to the facilities used to conduct the business of the Joint Venture.31
119.
As for the Articles of Association, these were entered into by the Parties in accordance with the Saudi Companies Law, issued under Royal Decree No. M/6 dated 22/3/1385H as amended, and in accordance with the Foreign Investment Regulations issued under Royal Decree No. M/1 dated 5/1/1421H. Their aim was to implement the legal obligations previously undertaken by the Parties in the BVA and to provide additional details on the establishment of D-R Arabia.32

(v) Capital contributions and Joint Venture's losses

120.
Pursuant to Article 180 of the Saudi Companies Law of 1965 enacted by Royal Decree Number M/6 dated 22/3/1385H (corresponding to 22 July 1965), in effect until its amendment on 2 May 2016, if losses of a limited liability company would reach 50% of its share capital, the managers of the limited liability company should summon the shareholders to decide in a written shareholder resolution whether the limited liability company should continue to exist, with each shareholder incurring the company's debt, or be dissolved. In the event the limited liability continued to exist without the shareholder's resolutions ("Article 180 Resolution"), each shareholder shall be jointly and severally liable for all debts of the limited liability company. ARPIC executed the Article 180 Resolution in 2010, 2011, 2012 and 2013.
121.
ARPIC's signature on the Article 180 Resolutions was, according to Claimant, a confirmation of ARPIC's willingness to provide the funding that was necessary for D-R Arabia. "At absolute minimum, this commitment covers financial obligations tracing back to the inception of D-R Arabia, and carrying through 2013."33
122.
However, ARPIC refused the execute the Article 180 Resolution for the years 2014 and 2015, requiring D-R BV to cover also ARPIC's share of the capital and operating expenses.34
123.
D-R BV pointed at ARPIC for D-R Arabia's lack of profits, arguing that the reasons for which the Joint Venture had not been profitable were "attributable to ARPIC's misconduct or are otherwise inherent in the usual problems associated with the start-up of any new business".35 Respondent did not carry out its share of the financial burden, while it continued to raise complaints simply to avoid facing the financial obligations provided in the BVA and later reaffirmed in the BVA amendment, and Article 180 Resolutions. The systematic lack of cooperation from Respondent was also documented in the audits prepared by PwC, which showed the lack of OPEX and CAPEX funding.36
124.
The Parties tried to resolve their dispute at various meetings where Respondent eventually confirmed that (i) it would not reimburse Claimant for the amounts due under the BVA and BVA Amendment, (ii) it would not execute the Article 180 Resolution unless indemnified by Claimant, and (iii) it would not approve or sign off the audited financial statements.37 For Claimant it was clear that only by invoking the dispute resolution clause in the BVA, would ARPIC be compelled to perform its obligations. ARPIC's refusal to discharge its legal, administrative and substantive responsibilities under the contracts caused D-R BV significant financial harm.38

(vi) Dresser Rand covered ARPIC's OPEX and CAPEX

125.
The Request continues by contending that ARPIC failed to meet its obligations by ignoring or rejecting the cash calls it received.39 According to D-R Arabia's books and records, the amount due from ARPIC, at the time of the Request, was USD 44,006,000.
126.
Claimant's contributions were made through a series of Inter-Company Loans to cover OPEX and CAPEX ("Loans"). The first loan was made on 30 July 2012 with 20 subsequent amendments to reflect the amounts advanced for the business. D-R Arabia never repaid such amounts.40
127.
On 1 August 2014, the loans previously funded by Dresser-Rand International B.V. were assigned to D-R Luxembourg International S.a.r.l. ("D-R Luxembourg") which continued to make further loans.
128.
Pursuant to the BVA, Claimant had the right to perform its obligations though its affiliates, "thus entitling D-R to seek appropriate recompense for the amounts advances by affiliate companies".41 In this sense, Clause 14 of the BVA reads as follows:

"14.1 Neither this Agreement nor any rights or obligations under this Agreement shall be assigned or transferred by either Party without a disposition of shares pursuant to Articles 9 or 16, and any other attempted assignment or transfer shall be null and void; provided, however:

(a) that both ARPIC and Dresser-Rand shall have the right to perform all or any part of their obligations through one or more affiliates, but shall remain fully responsible; and

(b) if ARPIC or Dresser-Rand transfers its shares to an affiliate pursuant to Article 9, it shall remain fully responsible for the performance of this Agreement by such affiliate.

14.2 This Agreement shall be binding upon and inure to the benefit of the respective affiliates and Permitted Transferees of ARPIC and Dresser-Rand. All obligations, liabilities, and benefits pursuant to this Agreement shall inure to such affiliates and Permitted Transferees. For purposes of this Agreement and notwithstanding anything in the foregoing to the contrary, a change of control in the ownership of either Party, by way of merger, change of ownership, conversion, exchange or otherwise, shall be a deemed assignment requiring prior written consent of the other Party, which shall not be unreasonably withheld."

129.
Accordingly, Claimant sought relief both on its behalf and on the behalf of D-R Luxembourg.42

(vii) ARPIC ratified and confirmed its financial obligations to D-R Arabia

130.
On 20 May 2014, the Parties entered into the "Heads of Agreement", which confirmed their obligations to DR Arabia on several issues.43 The Parties also had a number of meetings regarding ARPIC's financial obligations to D-R Arabia. These meetings resulted in two agreements referred to by the parties as Arizona and Paris "Agreements", respectively. According to Claimant, these discussions and agreements evidence ARPIC's commitment to contribute to D-R Arabia's OPEX and CAPEX, as originally set out in the BVA.44
131.
In November 2010, pursuant to the Arizona Agreement, ARPIC agreed to contribute to D-R Arabia's operating expenses. In May 2012, pursuant to the Paris Agreement, ARPIC agreed to participate as an equal partner in D-R Arabia's operating expenses and to share D-R Arabia's capital expenses. Accordingly, the operating and capital expenses previously set out in the BVA were reaffirmed in following agreements including BVA Amendment, the Heads of Agreement, the Article 180 Resolutions, the audited financial statements and the Arizona and Paris Agreements.45
132.
ARPIC thus continually assured Claimant that it would discharge its legal obligations, which induced Claimant, through its affiliates, to continue funding the Joint Venture, expecting that it would be reimbursed by ARPIC.46

(viii) ARPIC's approval of the management undermines the claims in the KSA Proceeding

133.
Pursuant to Clause 15.1 of the BVA "[any] issues, dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration...". Mr. Craig's duties and obligation arose from the BVA. Thus, "it is hardly just or equitable to attempt to hold Mr. Craig individually liable for duties imposed by the BVA, which contains an arbitration provision, but on the other hand, preclude the arbitrability of those claims merely because he did not sign the BVA".47
134.
In the Statement of Claim filed in the KSA Proceedings, Respondent failed to specify the source of Mr. Craig's obligations or the contractual basis. Claimant contended that only possible source was the BVA. While the BVA recognized that different proceedings were possible. Clause 15.7 provided that "In the event of multiple contemporaneous disputes under this Agreement, the provisions of this Agreement shall control all such disputes and the arbitration proceedings under all such contemporaneous disputes shall be consolidated into one proceeding in front of a single panel of arbitrators selected pursuant to this Article 15. "48
135.
The BVA was "resoundingly clear": all disputes related to the Joint Venture had to be resolved before an arbitral tribunal and administered by the ICC. Accordingly, the Tribunal needed to have "a fair understanding of the interplay between the different proceedings that exists", and that the BVA is the basis of the claims pursed in the Saudi Arabia Courts.49

(ix) ARPIC ratified the decisions that led to losses

136.
On 14 April 2013, the Parties entered into the BVA Amendment which ratified all the disputes between the parties, including those relating to the Yanbu Project and the Dammam Facility. Afterwards, ARPIC did not acknowledge the promises made in the BVA Amendment; it denied payment for operational and capital expenses, while requesting additional commissions for the Yanbu Project.50
137.
On 20 May 2014, ARPIC, ARTC and D-R BV entered into the Heads of Agreement. According to this document, the parties were to enter into different resolutions ratifying the decisions made by D-R Arabia, such as the increase of the share capital, expansion of the scope of its operations, paying ARTC the commissions for the Yanbu Project. The Parties agreed that "ARPIC shall not participate in the management of the Company and D-R BV has full control".51 Respondent also agreed to purchase the Dammam Facility.
138.
Respondent ratified all the activities it later complained of: it signed the BVA Amendment, the Heads of Agreement, and numerous other agreements. While Respondent reassured Claimant that it would comply with its obligations, it failed to do so.

(x) The KSA Proceeding threatened immediate and irrevocable harm

139.
Claimant argued that the claims brought in the KSA Proceedings and in the D-R case "significant[ly] overlap", with all claims properly belonging in the ICC arbitration.52 To allow these proceedings to continue would create a risk for Mr. Craig's future business activities and impinge on his "ability to earn a livelihood",53 as well as on the Joint Venture's business and reputation. Regardless of their characterization, the KSA Proceedings and the D-R Case arose from the BVA and, by having the same subject matters, there was a substantial likelihood of business and legal conflict that needed to be concurrently resolved, therefore threating to create a legal quagmire. In particular, Claimant argued that the claims brought against Mr. Craig were in fact claims against D-R BV, "merely packaged in a somewhat disingenuous manner".54 Claimant therefore anticipated in the Request that it would be seeking interim relief.
140.
Claimant presented a summary of claims and the disputes that arose since the Parties entered into the BVA, such as:55

• Respondent's failure to meet its obligations in relation to the operating expenses, capital expenses and debts of D-R Arabia;

• Respondent's failure to ensure that the Articles of Association of D-R Arabia, in the form attached as Exhibit A to the BVA, were properly submitted to MOCI;

• Respondent's failure to take the necessary steps to enable D-R Arabia to obtain and/or maintain a license from the Saudi authorities to perform the functions set out in Clause 3.1 of the BVA;

• Respondent's failure to meet its obligations under Articles 157, 175 and 180 of the Saudi Companies Law in relation to the debts and funding requirements of D-R Arabia;

• Respondent's failure to comply with commitments given in Shareholder Resolutions that it would provide financial assistance to D-R Arabia and that it would meet D-R Arabia's financial obligations;

• Respondent's failure to share, in proportion to its ownership in D-R Arabia, in the capital expense costs of D-R Arabia incurred in connection with the lease of land in Dammam 2nd Industrial City and the construction of the facility; and

• Respondent's failure to take necessary steps to enable D-R Arabia and/or its branch to meet the requirements of MOCI and the Chamber of Commerce.

141.
In addition, Respondent failed to perform the obligations undertaken in Clauses 4.1. and 4.2. of the BVA Amendment, to:56

• promptly fund D-R Arabia the sum of USD 4,355,050 for operating expenses in the period to 31 December 2012;

• promptly fund D-R Arabia the sum of USD 8,316,920 for capital expenditures incurred by D-R Arabia in the period to 31 December 2012; and

• perform in conformance with the obligations set forth in Section 3.1 pertaining to "Land and Building" and Section 3.6 in relation to the "Cleveland Bridge Lease".

142.
Lastly, Respondent breached the Parties' agreement to arbitrate their dispute by commencing proceedings before the Saudi Arabia Courts.57
143.
Claimant stated that Respondent breached:

a) "Clause 2.3 of the BVA and/or Article 180 of the Saudi Companies Law in relation to its failure to make additional capital contributions to D-R Arabia;

b) Clauses 2.3, 2.5, 5.4, and 6.5 of the BVA in relation to the Parties obligation to make appropriate contributions to capital expenses and operating expenses of D-R Arabia, and more particularly with respect to Respondent's failure to cover its proportionate share of those obligations;

c) Clause 2.7 of the BVA in relation to its failure to ensure that the Articles of Association of D-R Arabia, in the form attached as Exhibit A to the BVA, were properly submitted to MOCI;

d) Clauses 3.3 and 12.1 of the BVA in relation to its failure to ensure that DR Arabia obtained, and/or maintained the necessary licenses from the Saudi authorities to perform all of the functions listed in Clause 3.1 of the BVA and/or Article 2 of the Articles of Association;

e) Clause 3.9 of the BVA Amendment in relation to its failure to share, in proportion to its ownership in D-R Arabia, the capital expense costs of DR Arabia incurred in connection with the lease of land in Dammam 2nd Industrial City, and the construction of a facility on that land;

f) Clause 4.1 of the BVA Amendment in relation to its failure to promptly fund D-R Arabia the sum of USD 4,355,050 for operating expenses in the period to 31 December 2012 (such funding to be made by way of shareholder loan from Respondent to D-R Arabia);

g) Clause 4.2 of the BVA Amendment in relation to its failure to promptly fund D-R Arabia the sum of USD 8,316,920 for capital expenditures incurred by D-R Arabia in the period to 31 December 2012 (such funding to be made by way of shareholder loan from Respondent to D-R Arabia);

h) Articles 157, 175 and 180 of the Saudi Companies Law in relation to the debts and the funding requirements of D-R Arabia;

i) the Shareholder Resolutions dated 12 April 2011, 6 April 2012 and 12 March 2013, and 14 February 2014 that it would provide financial assistance to D-R Arabia and that it would meet D-R Arabia's financial obligations as they became due;

j) Clauses 3.3 and 12.1 of the BVA and/or Articles 175 and 180 of the Saudi Companies Law in relation to the failure of Respondent to take the necessary steps to enable D-R Arabia to comply with the requirements of MOCI and the Chamber of Commerce;

k) Clauses 15.1 through 15.7 in relation to Respondent commencing litigation before the Grievances Board/Administrative Court - Dammam in the Kingdom of Saudi Arabia in lieu of pursuing arbitration as required under the BVA; and

l)Clause 15.1 through 15.7 in relation to Respondent commencing litigation in the Kingdom of Saudi Arabia against D-R BV, or related entities in lieu of pursuing arbitration as required under the BVA"58

144.
The relief sought by Claimant ("or will seek by way of injunction or other interim relief on an interim basis"59) was:

a) "an interim order that ARPIC should be enjoined from proceeding with prosecution of claims against Mr. Craig, in his capacity as General Manager for the Joint Venture, in the context of the KSA Proceeding, and/or alternatively that ARPIC should be required to present any claims relating to management or mismanagement of the Joint Venture, whether directed against the General Manager in his individual capacity, or otherwise, in the context of this arbitral proceeding as envisaged under Clause 15 of the BVA;

b) an interim order that ARPIC should be enjoined from proceeding with the prosecution of any claims against D-R BV, in relation to the conduct or activity covered by the BVA, the BVA Amendment or other documents relating to the business of the Joint Venture, except in the context of this arbitral proceeding as envisaged under Clause 15 of the BVA;

c) a declaration that the Respondent has breached the terms of the BVA as detailed in Paragraphs 71 (a) - (I) and/or the BVA Amendment, and/or the Saudi Companies Law;

d) an order that Respondent is required to pay damages (in an amount to be quantified in these proceedings) to compensate the Claimant for losses suffered as a result of Respondent's breaches of the BVA and/or the BVA Amendment and/or the Saudi Companies Law. The losses suffered to date include:

i. USD 18,764,000 in relation to ARPIC's 49.9% share of the operating expenses of D-R Arabia;

ii. USD 25,242,000 for total capital contributions due from ARPIC based on its stockholder interest of 49.9%;

iii. a diminution in the value of its shareholding in D-R Arabia. D-R BV will adduce evidence of the quantum of such diminution in value in its Statement of Claim; and

iv. damages incurred by Claimant as a result of Respondent's failure to timely and properly discharge its administrative and regulatory obligations under the BVA in relation to the requirements of SAGIA, MOCI, the Chamber of Commerce or any other governmental entities or authorities.

e) interest on any Award of damages made by the Tribunal;

f) an order that Respondent should pay the costs of the arbitration in accordance with Article 37 of the 1CC Rules; and

g) any other relief that the Tribunal may deem appropriate. "60

145.
Claimant alleged that the net total sum due by Respondent for operational and capital expenses was at least USD 44,006,000.

B. Application for Interim Measures

146.
On 15 December 2017, pursuant to Article 23(1) of the ICC Rules, Claimant filed an Application to obtain the interim relief which would require Respondent to perform certain contractual obligations necessary for the appointment of the General Manager and the auditing firm.
147.
Claimant argued that the measure was urgent since:61

• without a General manager it was impossible to conduct the business and the day-to-day activities;

• given the expiry of the work and residency permits, the individual that was acting as General Manager at the time of the Application could not continue with its work after 15 December 2017;

• despite repeated requests, Respondent, in breach of contract, refused to agree on the appointment of a replacement General Manager;

• Respondent refused to confirm the appointment of financial auditors and tax advisers, thereby delaying preparation of the company's accounts for 2017;

• there was a risk of substantial harm as the General Manager was authorized to complete all necessary filings and registrations with authorities in the Kingdom of Saudi Arabia;

• the appointment of an auditor was necessary to complete the 2017 financial (and tax) statements;

• absent the urgent appointment of a General Manager and auditor, the Joint Venture would not have been able to complete the filings and registrations required in order to maintain its corporate standing in the Kingdom of Saudi Arabia, therefore resulting in the loss of the venture's Registration Certificate.

148.
The Parties agreed in the BVA that the General Manager would be appointed by Claimant, upon Respondent's approval. Moreover, the BVA provided that Respondent could not withhold its consent and that the Parties had to cooperate in order to facilitate the appointment.62
149.
At the time of the Application, the appointed General Manager was Mr. Craig who had held that position since the inception of the Joint Venture.63 Claimant's position was that the KSA Proceedings commenced by Respondent were "wrongfully premised on allegation with no basis in fact that Mr. Craig mismanaged the business of the joint venture and caused losses to D-R Arabia as a result."64 These claims were not only groundless, but they also compelled Mr. Craig to perform his duties outside the Kingdom of Saudi Arabia. This caused a serious risk of civil liability and a threat of imprisonment if Mr. Craig were to return to the Kingdom of Saudi Arabia.65
150.
The Parties had discussions about the appointment of a new General Manager for a long period of time. However, Respondent refused the accept such appointment, without providing any reason for its refusal. According to Claimant "[t]he clear inference to be drawn is that the Respondent's behaviour is driven by a desire to put the Claimant and the joint venture under pressure [...] rather than by any legitimate concerns as to the candidate proposed by the Claimant".66
151.
Claimant contended that the appointment had become critical since Mr. Craig's residency and work permits expired on 15 December 2017 and D-R Arabia "has reached a critical juncture in the development of its business and the potential to generate future profits".67 Further details of Claimant's Application are set out in subparts (i) and (ii) below:

(i) Risk of harm

152.
Once the permits expired, the Joint Venture would have difficulties conducting its legal, regulatory, and business affairs. There were documents that had to be filed by certain deadlines,68 such as tax returns, audited accounts, Saudization Certificate, General Organisation for Social Insurance Certificate, notice of losses for the fiscal years and a resolution that the company would continue to operate, despite the losses.69
153.
The failure to file the above documents, Claimant argued, would have started a "chain reaction". Since the Joint Venture was in a moment when the business was about to take off and Claimant had borne all the costs, the failure to appoint a General Manager would "cause irremediable harm".

(ii) Respondent's obstruction in appointing a new General Manager

154.
Claimant asserted that "Respondent has deliberately sought to delay this issue and has still not provided its consent nor has it stated any concerns with or objection to the candidate proposed by the Claimant."70 Respondent also failed to provide the confirmation and signatures necessary to allow the appointment of the new General Manager and the auditor.
155.
Claimant contended that the Tribunal had prima facie jurisdiction over the dispute, the merits of the case were reasonably argued in the Request, and the contractual obligations breached were clearly set out.
156.
It was clear that "action must be taken as a matter of urgency" in order to avoid causing harm to the Joint Venture's success and reputation,71 and to facilitate the necessary filings.72 The harm identified was, Claimant argued, in line with the standards for relief in the CIArb Guideline.
157.
Respondent would not suffer any prejudice if the Tribunal were to grant the relief sought.73 On the contrary, if the order was not granted, the harm would be suffered by Claimant.74
158.
Accordingly, Claimant requested the following interim measures:75

a) "The Respondent is hereby ordered to comply with Clause 5 of the Business Venture Agreement entered into between the Parties and dated 18 March 2009 as follows:

(i) To cooperate as is necessary to facilitate the appointment of Mr Bandar Shalabi as General Manager of Dresser-Rand Arabia LLC, including by causing its appointed Directors to take such steps as are necessary:

(A) to execute the draft shareholders resolution appended to this order;

(B) to ensure that all necessary records and signatory authorities of Dresser-Rand Arabia LLC are updated to reflect Mr Shalabi’s appointment as General Manager.

b) The Respondent is hereby ordered to comply with Clause 8 of the Business Venture Agreement as follows:

(i) To approve the appointment of PwC, being an internationally known and recognised firm of certified public accountants, to act as auditor to Dresser-Rand Arabia LLC.

c) In the event necessary, the Respondent is ordered to undertake any ancillary tasks necessary to give effect to the appointment of a new General Manager and to approve the appointment of PwC as auditor."

C. Response to Claimant's Application

159.
Respondent countered that the appointment of the General Manager was a commercial decision that "must be decided by the parties themselves as shareholders in the Company."76 It was not for the Tribunal to make a commercial judgment call and, even if it did, such order would be unenforceable.
160.
Respondent argued that the Tribunal lacked jurisdiction for three reasons.
161.
First, Claimant was seeking a specific performance of an agreement contained in the BVA, i.e., to compel Respondent to accept the nominations of the General Manager and of the auditor. According to Respondent, "it is a basic principle of English law that the remedy of specific performance is not available in the context of a duty to co-operate [...] and so injunctive relief is not available."77 If the parties of a Joint Venture cannot reach an agreement, the appropriate remedy is for damages and not specific performance, since the latter are impermissible under English contract law.
162.
Second, Claimant's application should be dismissed since the Courts of the Kingdom of Saudi Arabia were vested with jurisdiction. Pursuant to Article 4.4. of the BVA, the Parties agreed to ensure the quality of the Company's products and safety services by observing the selection process of the necessary appointments. The only process that the Company could validly select was provided in Article 10(a) of the Articles of Association, the latter being subject to the laws of the Kingdom of Saudi Arabia and "to the entire legislative framework regulating companies in the Kingdom of Saudi Arabia"78 Nothing in the BVA provided for the auditor's appointment, as such power was only envisaged in Article 14 of the Articles of Association. Accordingly, the Tribunal had no jurisdiction to decide this issue.
163.
Third, even if the Tribunal did have jurisdiction, Respondent contended that the remedy sought was not available by way of interim measures. According to articles 17 and 17A of the UNCITRAL Model Law on International Commercial Arbitration, the tribunal's power to make interim orders was envisaged to: (i) preserve the status quo; (ii) prevent irreparable harm; (iii) preserve assets out of which an award might be satisfied; or (iv) preserve evidence.79 However, Claimant's relief was seeking appointments, an issue that was not causally connected to this dispute for which interim measures are available.80
164.
Therefore, Claimant's application should be dismissed on jurisdictional grounds.

D. Claimant's Reply to Respondent's Response (Interim Measures)

165.
Claimant replied to Respondent's objections as follows:
166.
First, the Tribunal had jurisdiction and power to grant the relief sought, considering that:

• Article 15 of the BVA provides that disputes are to be solved by means of arbitration in accordance with the ICC Rules. Article 23(1) of the ICC rules gives the Tribunal the power to issue interim awards;81

• Article 203 of Chapter 3 of the UAEW Civil Procedure Code, Federal Law No. (11) of 1992, parties can refer any dispute to arbitration in accordance with the rules which expressly permit the granting of interim measures;82 and

• the Secretariat's Guide to ICC Arbitration elaborates Article 28(1) of the ICC Rules (2012), which is in identical terms as Article 23 of the 1998 ICC Rules, stating that "the [ICC] Rules permit the arbitral tribunal to determine whether the relief sought constitutes interim or conservatory relief and whether, as a consequence, it is in a position to grant relief pursuant to Article 28."83

167.
Claimant further argued that Respondent mischaracterized the nature of the relief sought, as Claimant was not asking the Tribunal to make a commercial decision. The order that Claimant was seeking from the Tribunal was to prevent the Respondent from obstructing the contractual process to appoint the General Manager and auditor, in breach of the BVA, risking a compulsory liquidation of the Joint Venture.84
168.
Claimant disagreed that the absence of an express contractual provision in the BVA on the appointment of the auditor was relevant to the Tribunal's jurisdiction. The power to grant interim relief was a procedural matter governed by the combination of the Parties' agreement to apply the ICC Rules and the mandatory provisions of UAE law. As to the remedy being unavailable under English law, as Respondent contended, Claimant stated that even if the BVA was governed by English law, it did not follow that the procedural powers of the Tribunal were confined.85
169.
Even if English law were relevant, the Tribunal would have the power to grant the interim relief sought. The measure sought was not a remedy of specific performance, but a mandatory injunction for which the English Court enjoys great power. Moreover, Claimant reiterated that the risk of harm would not be adequately reparable by an award of damages. The principles generally recognized by the English Court express a preference in favor of maintaining the status quo. By mischaracterizing Claimant's Application, Respondent sought to avoid the protections that both courts and tribunal take into account in respect of interim applications to maintain the status quo until the outcome of the dispute.
170.
In the event that the remedy of specific performance under English law is relevant, Claimant submitted that the Tribunal would in any case have the power to award specific performance. The authority on which Respondent relied was inapposite, since it referred to contracts such as employment or partnership between the individuals, i.e. which involve a "personal" service. However, in the case at hand, Claimant stated that personal service was irrelevant. Instead, it was important the chain reaction that would occur in case the Joint Venture failed to comply with the local regulations and laws.

E. Tribunal's Order Interim Measures Application Dismissed

171.
By Order dated 13 February 2018, the Tribunal ruled that it had jurisdiction to order the interim measures sought by Claimant. Respondent's jurisdictional challenge to the Application was therefore rejected.
172.
However, the Tribunal denied Claimant's Application.
173.
As set out in the Order, the Tribunal's decision was based on the following reasoning:

"When deciding whether to grant interim measures, t he Tribunal is particularly attentive to the criteria set out in the Chartered Institute of Arbitrators’ International Arbitration Practice Guideline on Applications for Interim Measures, helpfully set out at paragraph 2.10 of Claimant's Reply. These criteria are consistent with those set out in the above-referenced Secretariat's Guide as well as Articles 17 and 17A of the UNCITRAL Model Law on International Commercial Arbitration, referenced at paragraph 22 of Respondent’s Response. The guidance provided by arbitration scholars is also of use, as is the English case law provided by Claimant. In sum, in the circumstances of this case, the Tribunal has focused on assessing whether the interim measures would preserve the status quo, whether there is a risk of harm not adequately reparable by an award of damages if the measures are denied; whether the relief would be proportional and appropriate in view of the nature of the relevant contract. The Tribunal also notes that the Secretariat's Guide instructs caution (at paragraph 3-1037) in granting interim measures, as "their effects could be determinative in a dispute or difficult to reverse". Jurisdiction, as noted above, has been established, and for the purposes of this assessment of Claimant's Application, the Tribunal has assumed Claimant's prima facie establishment of its case on the merits.

In terms of the goal of preserving the status quo, the Tribunal notes that the interim relief now sought by Claimant is not what it originally set out in its RFA. Of course, there is nothing to constrain Claimant from formulating a new approach, based on new concerns. However, pursuant to Article 23(1) of the ICC Rules, Claimant could have filed its Application, based on new concerns, immediately upon notice of transmission of the file to the Tribunal, but did not do so. Rather, some three weeks later, it gave an indication of the content of its forthcoming Application. And then, after another 10 days passed, it finally filed its Application -the same day that Mr. Craig's residency and work permits in Saudi Arabia (Application at paragraph 2.12(a)) were due to expire. While the Tribunal appreciates that Claimant was seeking to resolve the issue without having to bring an Application, the status quo at the time the Application was filed was that the Joint Venture was already without a General Manager in residence, and therefore it was "impossible" (RFA at paragraph 1.2(b) for Mr. Craig to continue in his role.

The Tribunal does not put any dispositive weight on this status quo aspect. We simply observe that the element of urgency, which is connected to the element of irreparable harm, is not clearly demonstrated in the above circumstances: the evolution of the interim measures being sought, and the fact that the Application was not filed until more than a month after the transmission of the file and at a time when it was known that the current General Manager could no longer maintain that role.

Of greater significance than status quo, is the nature of the contract and of the relief sought. In relation to the clauses of the BVA concerning the appointment of the General Manager and the auditor, the BVA is a cooperation contract. Yet, the Application seeks an order that a particular individual and a particular company be appointed. Respondent correctly observes (Response at paragraph 23) that this would be in the nature of final relief -though Respondent incorrectly characterizes this as "a completely separate dispute that has not been referred to arbitration". It clearly is within the ambit of the underlying case for Claimant to specifically add this relief to its request for damages in the RFA. For the purpose of interim measures, however, the Tribunal would be concerned about compelling appointments of a specific individual and company, which could imply final relief and would be difficult to reverse-see above the caution expressed on this point in the Secretariat's Guide. At paragraph 2.19 of its Reply, Claimant appreciates this issue and indicates its openness in respect of the appointment of the General Manager, suggesting that the appointment could be made "for a set period in order to 'hold the ring’ pending resolution of the arbitration by final award". But the time frame issue is only part of the problem (and indeed there is no apparent flexibility in relation to the time frame for the appointment of an auditor); the related problem is the nature of the contract clauses, entailing cooperation, and the Tribunal's concern not to issue relief that would be difficult to reverse. Again, the matter is not one of jurisdiction; it is whether an exercise of discretion is appropriate in these circumstances.

This leads to the final salient point on the Tribunal's decision not to exercise its discretion: irreparable harm which cannot be adequately compensated in damages. Claimants contends that without the requested appointments, the joint Venture could be forced into compulsory liquidation and damages flowing from such liquidation would be difficult to calculate. The Tribunal considers that the mere assertion that damages would be difficult to calculate is insufficient in these circumstances. In view of the above circumstances, Claimant would have had to show that it could not be properly compensated in damages. In the Tribunal's view, if liquidation of the joint Venture were to result, a quantum expert could present a reasonable calculation of damages incurred by Claimant. The damages issues in this potential liquidation matter would be wholly unlike those in the cases exhibited by Claimant (Araci v. Fallon and Pena v. Dale).

Accordingly, and notwithstanding the Tribunal's sympathy for Claimant's concern regarding the consequences of the ongoing lack of a General Manager and auditor, the Tribunal considers that damages would be an adequate remedy if Claimant were to succeed on breach claim in relation to these matters in a final award, and any doubt as to adequacy of damages would still not point to interim relief in view of the nature of the relevant contractual clauses and the relief sought."

174.
Accordingly, Claimant's Application was dismissed.

F. Respondent's Position in the Terms of Reference

175.
In Section VI of the ToR, Respondent briefly summarized its merits position and relief sought.
176.
First, it denied its liability to Claimant "as alleged or at all". Respondent argued that Claimant had failed to manage the Joint Venture, thus breaching the BVA. Claimant's mismanagement caused significant losses and liabilities: had Claimant properly managed the Joint Venture, Respondent would not have been liable to pay the sums due under the BVA. Respondent therefore was not liable to pay the amounts Claimant was seeking to cover, "as any liability (which is not admitted) is attributable to the Claimant's own breach of contract".
177.
Second, as a result of the mismanagement, any obligation to make capital contributions to the Joint Venture and fund its CAPEX and OPEX under the BVA, Arizona and Paris Agreements was no longer effective, while the BVA Amendment was void in its entirety.
178.
Claimant's mismanagement included:

• Sub-contracting to DR-Arabia the repair of compressors and turbines at prices lower than costs, without obtaining Respondent's prior approval;

• Management of the Joint Venture without involving or seeking approval from Respondent for transactions which, under the BVA, required a shareholder approval;

• Authorization of capital expenditures, without obtaining Respondent's prior approval;

• Improperly charging expenses not belonging to the Joint Venture, as revealed by an internal audit conducted in 2014;

• Increasing the operating costs of D-R Arabia by appointing executives and managers with high salaries, without obtaining Respondent's prior approval; and

• Excessive expenditure on equipment was undertaken, without a prior approval or involvement from Respondent.

179.
Third, "by way of a counter-claim", Respondent also sought to recover any losses incurred as a result of Claimant's breaches of the BVA.
180.
Such losses included:

• "The Sums claimed by way of further capital contribution under the BVA;

• Loss of revenue that would have been generated had the business been managed correctly (including future loss of profits); and

• Losses associated with the damage to the DR-Arabia and AI-Rushaid brand in the KSA."

G. Claimant's Statement of Claim

181.
Claimant, in its SoC, first gave an overview of Respondent's breaches.
182.
Since the inception of their relationship, Respondent "repeatedly failed to perform its contractual obligations under the BVA and the BVA Amendment".86 Under the BVA and subsequent agreements, the Parties agreed to make the necessary financial contributions, but ARPIC failed to meet its contractual obligation, meet the capital or operating expenses of the Joint Venture, apparently expecting that Claimant would carry out the financial burden for both of them.
183.
Respondent also failed to provide the land on which the facility was supposed to be built. ARPIC manifested its intent to provide financial support, only to renege on it afterwards.87 As a result of Respondent's wrongful conduct, Claimant was required to advance significant sums, which, at the time of the SoC, amounted to USD 79,687,000. Out of this sum, USD 68,872,000 were provided through loans provided by Claimant's affiliates. As at 31 December 2017, Respondent was due USD 42,047,000.88

(i) Joint Venture

Formation of the Joint Venture

184.
The idea of the Joint Venture came in 2009 as Dresser Rand was looking to increase its presence in the Saudi Arabia's market.89 The proposed structure of the Joint Venture was that it would be controlled by Dresser-Rand, which would bring technology and operation, while ARPIC would provide land on which a manufacturing facility would be built, as well as the power to run the operations. Dresser-Rand believed that by affiliating with ARPIC it would gain credibility, potential customers, and the relationship would facilitate compliance with local Saudi requirements.90
185.
On 17 March 2009, Dresser Rand Company (affiliate of the Dresser-Rand Group) entered into the CPA with Saudi Aramco. Attachment V of the CPA reflected Dresser-Rand Company's and ARPIC's intention to create a joint venture.91
186.
On 18 March 2009 the parties entered into the BVA. Clause 2.1 of the BVA provided that the Parties would establish the Joint Venture under the laws of the Kingdom of Saudi Arabia. The ownership percentages were established as following: Dresser-Rand Holdings would hold 50.1%, while ARPIC 49.9% of the Joint Venture. Eventually, D-R BV substituted D-R Holdings. The business of the Joint Venture was set out in Article 3.1 of the BVA. Subsequently, pursuant to Article 3.1 of the BVA, the Parties passed a resolution to amend the Articles in order to broaden the business scope of the Joint Venture to encompass also "operation, maintenance and technical support services in respect of industrial and heavy equipment, pumps and equipment relating to oil, gas and other industries, without reference to whether such equipment was manufactures by Dresser-Rand of D-R Arabia."92
187.
Article 5 of the BVA provided that the day-to-day management would be delegated to the General Manager, who was responsible for reporting to the Board of Directors and a Claimant designated director. Pursuant to Article 5.1 BVA, Mr. Sheikh was appointed for aspects relating to finance and accounting (see above at para. [•]), while ARPIC - required to nominate a so-called Controller qualified in finance and accounting -failed to nominate a Controller. These functions ended up being performed by D-R Arabia's personnel.93
188.
The General Manager's broad authority was provided by the BVA, BVA Amendment and the Articles of Association:

• Clause 5.1 of the BVA stated that "[r]esponsibility for the day-to-day management of the operations of the Company shall be delegated to the General Manager";

• Clause 5.4 provided that "[i]t shall be the duty and responsibility of the General Manager to manage the business and affairs of the Company[...]";

• Article 10(d) of the Articles provided that "[t]he Second Party [i.e. D-R BV] shall nominate a General Manager of the Company, who shall be approved by the First Party [i.e. ARPIC] and who may or may not be a member of the Board of Directors, to carry out the day to day management of the operations of the Company";

• Clause 4.2(b) of the BVA Amendment provided that "[n]otwithstanding anything in the Business Venture Agreement or the Articles of Association to the contrary, the General Manager shall be entitled to make expenditures that are within the budgets or capital plans approved by the Board."

The Lease

189.
Clause 3.9 of the BVA provided that "ARPIC shall cause Al Rushaid Investment Company ("ARIC") to enter into a Lease with the Company in the form attached hereto as Exhibit C, with only such changes as may be agreed to between ARIC and Dresser-Rand".
190.
ARIC, an ARPIC affiliate, had to: provide premises, construct a manufacturing and administrative facility and related structures on the premises and bears the costs of these facilities. However, neither the land nor the facilities were provided. It was necessary to find a temporary solution for the Yanbu Project. ARPIC also expressed that it was considering leaving the Joint Venture causing negotiations between the Parties.

Origins of dispute

191.
The Joint Venture was under an obligation to perform the Yanbu Project, in accordance with the CPA obligations. There was a risk that the Joint Venture could breach the CPA given the lack of a facility. Given ARPIC's lack of engagement, Claimant had to bear a "greater and administrative burden". In May 2011, the Dresser-Rand Board of Directors approved a new capital budget of USD 53,000,000 for "machinery, equipment, plant construction, and engineering of the facility in the Kingdom of Saudi Arabia."94 Dresser-Rand was forced to provide funds for an alternative facility in Dammam.95
192.
On 6 November 2010, D-R Arabia entered into a two-year agreement with Cleveland Bridge Arabia Limited (ARPIC affiliate) to lease part of its facility in Jubail for USD 660,000 per year. D-R Arabia needed to pay USD 523,000 to refurbish the Cleveland Bridge facility for it to be able to complete the Yanbu Project. Contrary to the BVA, where Respondent had to provide land and facility, D-R Arabia had step in and pay USD 1,723,000.
193.
The Cleveland Bridge Lease was a temporary solution, as it could not be used - on a long-term basis - for manufacturing and packaging services that the Joint Venture had to provide.96
194.
On 23 October 2010, D-R Arabia entered into a twenty-year lease agreement with Modon, to build the Dammam Facility. However, due to foundation and geology of the site, the design of the facility had to change, resulting in additional costs. Respondent "disputed its responsibility for the additional costs" in relation to the Modon Lease and Dammam facility and the construction contract entered into with KAMCO. While ARPIC paid the first installment for the Modon Lease, Claimant argued that it later charged the Joint Venture for that installment.97
195.
In March 2012 Claimant informed ARPIC that the Joint Venture could not use the Cleveland Bridge facility any longer as it was not suitable. Ultimately, the Dammam Facility became operational in 2014 and since then, and still now, the Joint Venture operated from there.
196.
The Yanbu Project was completed in March 2013, accruing net losses of approximately USD 13,500,000.98

(ii) The operation of the Joint Venture

Lost opportunities

197.
As a result of the significant delays and additional costs, the Joint Venture lost additional work. Mr. Craig had to secure new projects, but the Joint Venture remained excluded from a number of opportunities as the Dammam Facility was not completed.
198.
Saudi Aramco expected that the Joint Venture would have a completed and operational facility in 2010. Claimant stated that since a number of companies targeted by the Joint Venture related to various Saudi Aramco projects, other customers shared Saudi Aramco's expectations. The fact that the Dammam Facility was not completed was "a major factor" that the Joint Venture lost many opportunities between 2009 and 2015.99 According to Claimant, the total value of these lost projects was USD 560,7797,299, while the value of the projects won was USD 159,555,439,100 of which USD 123,696,408 were the Yanbu Project orders.
199.
The two main projects that the Joint Venture was not able to secure were the Shaybah and Jazan projects worth, respectively, USD 260 million and USD 90 million.
200.
Claimant claimed that ARPIC or its affiliate ARTC did not support Dresser-Rand when it was pitching the projects. Had the Dammam Facility been completed on time, the Joint Venture would have won more projects. It was ARPIC's disengagement and lack of financial support that had a negative impact on the Joint Venture's business causing a revision of the initial business plan.101

Cash Calls and funding from Dresser-Rand

201.
Since the inception of the Joint Venture, D-R Arabia required additional funding to cover operating expenses and to make additional capital contributions. Pursuant to Article 2.3 of the BVA the Parties had to contribute to the Joint Venture's OPEX and CAPEX. D-R Arabia made regular cash calls to the Parties, but ARPIC never paid them. Claimant had no choice but to fund the whole value of the cash calls.
202.
Pursuant to Article 2.3(b), in case one Party funded the Joint venture in the above circumstances, the shareholding of the non-contributing party would have been diluted. This option proved to be impossible for Claimant since Respondent had to give its approval for the dilution and it was necessary that 75% of the shareholders voted for the amendment of the Articles. Claimant argued that it was impossible in effect to exercise its rights under Article 2.3(b) of the BVA.
203.
Claimant arranged that certain Joint Venture's expenses were to be paid directly by the Dresser Rand Group and, subsequently, charged back to Claimant on a non-interest bearing basis ("Intercompany Receivables"). This approach, according to Claimant, restructured the Joint Venture's debts to third parties: equivalent debts were instead owed by the Joint Venture to Claimant's affiliates.
204.
The financial burden of covering costs and expenses exceeded the available cash flow. Claimant then decided to secure loans for the Joint Venture from one of its affiliate entities, D-R International BV (an internal financing vehicle). Mr. Veal, in his witness statement explained that: "the purpose of D-R International BV was to collect deposits from various Dresser-Rand companies around the world and consolidate these funds so that D-R International BV could then extend loans out to Dresser-Rand affiliates, such as D-R Arabia, who were in need of such funds. D-R International BV provided a more efficient and economic system in which Dresser-Rand affiliates could obtain cash to fund their operations."102 D-R Arabia benefited from this system.
205.
In 2012 it was understood that the Joint Venture would not generate sufficient cash to cover the expenses and that it would run out of cash by the end of May 2012. The Dammam Facility needed to be finalized. It was determined that the best option was to use D-R International BV to provide funds to the Joint Venture.103
206.
The only possible solution, Claimant argued, was to internally finance the Joint Venture. On 30 July 2012, an Intercompany Loan Agreement was signed by and on behalf of D-R International BV and D-R Arabia under which USD 1 million was initially advanced. D-R International BV advanced further funds by way of extensions to the original loan. These loans were considered as an interim step. Claimant proceeded on the basis that Respondent would pay for the land lease, building CAPEX or that, in any event, it would allow the loans and the Intercompany Receivables to be repaid and future cash requirements met. Since the first loan, 29 amendments or renewals to the original Loan were made. At the time when the SoC was filed, the loans amounted to USD 68,872,000.71.104
207.
Claimant continued to make cash calls on a quarterly basis and update the financial statements. At the same time, D-R International BV extended the Loans by advancing additional sums to the Joint Venture to meet the cash requirements requested from the Parties. Claimant concluded that "there was basically no practical choice other than for D-R BV to provide the funding (either directly, or through its affiliates)".105

Negotiations between the Parties

208.
The Parties entered into discussions regarding a possible restructure of their relationship, including Respondent's withdrawal from the Joint Venture. They signed a series of agreements:

• The Arizona Agreement --

209.
At the meetings held in Arizona on or around 17 November 2010, ARPIC, recognizing that Claimant had been paying for most of the costs, "confirmed its agreement to contribute to D-R Arabia's operating expenses".106 It agreed to the reimbursement of approximately USD 520,000 as well as to financially support the Joint Venture on a go forward basis. In fact, Claimant sent an invoice for USD 525,904.107 However, according to Claimant, ARPIC did not comply with the Arizona Agreement.

• The Paris Agreement —

210.
The Parties met in Paris on or about 8 April 2011 where "another interim agreement [was] reached in which ARPIC agreed to settle all operating expenses through 31 December 2010".108 Respondent agreed to pay USD 1,073,000 for OPEX and USD 549,3019 for CAPEX.
211.
Once again, Respondent did not meet its obligations and it sought to renege its promises. Several proposals were presented, including the proposal to restructure the Parties' relationship as seen from a letter sent by Mr. Mai. Claimant would have bought out Respondent, gaining full ownership and operating control. While it seemed that a deal would be finalized, Respondent backed out again stating that "it will be prepared to finance, construct and lease the facilities to the J.V."109
212.
Claimant proceeded, thinking that there would be an ongoing relationship with Respondent, but the situation did not change. On 22 May 2012, the Parties met again in Paris to discuss the financial issues and to address whether ARPIC wanted to be part of the Joint Venture. They eventually reached to the so-called Paris Agreement pursuant to which ARPIC agreed to pay USD 7.6 million and to participate as a full partner on the Yanbu Project. However, Respondent did not respect these commitments.110
213.
The obligations undertaken by Respondent both in the Arizona Agreement and later confirmed in the Paris Agreement were consistent with the BVA obligations. Claimant hoped that an agreement could be reached, and that Respondent would honor its promises and commitments.
214.
On 10 February 2013, ARPIC offered to finance the construction and equipment of the Dammam Facility stating that they wanted to arrange a meeting with Claimant's CFO to "secure the financing and reimburse Dresser Rand for all amounts paid for the construction and equipment of the new facility".111 However, only a couple of days later, Respondent refused to reimburse Dresser Rand.112

(iii) BVA Amendment

215.
In January 2012 the Parties started negotiating an amendment to BVA in order to resolve their differences. On 14 April 2013 the Parties entered into the BVA Amendment formalizing their commitments as to their financial obligations.
216.
In particular, the BVA Amendment established that:

Merger of D-R Holdings into D-R BV : the Parties acknowledged that D-R Holding merged into D-R BV with the last one being a party and shareholder of the Joint Venture;

Ratification of KAMCO Contract : the contract entered into with KAMCO was expressly ratified as well as the obligation "to share in the capital expense costs incurred by the Company pro rata in proportion to their respective ownership interest in connection with such lease and the construction of the facility on the property of the Land Lease, including pursuant to the contracts with [KAMCO], each of which are hereby ratified";

Payment of CAPEX and OPEX through 2012 : Respondent agreed to remit payment of USD 4,355,050 for OPEX and USD 8,3169,920, both incurred prior to 31 December 2012;

Cash advance : as to future cash requirements, it was specified that the General Manager would advise the Parties of OPEX and CAPEX incurred and submit invoices on a quarterly basis.

217.
Through the BVA Amendment, the Parties envisaged a new start for the Joint Venture. As stated by Mr. Mai, given that ARPIC actively negotiated the BVA Amendment, it was fully aware on what it agreed on, having had the opportunity to review all the financial documents.113

(iv) CAPEX and OPEX incurred after 31 December 2012

218.
Respondent, however, failed to remit any of the amounts that it promised to fund.114
219.
D-R Arabia continued to make cash calls to its shareholders. They were made on a regular, quarterly basis, except where ARPIC manifested its intention to reject said request and/or refused to provide financing, or the Parties were negotiating a restructure of their relationship or a buyout. Respondent did not pay any of the sums requested in D-R Arabia's cash calls, leaving Claimant with the need to fund the full value of the sums requested. Claimant stated that, at the time of the SoC, the total principal provided by way of the Loans was USD 68,872,000.71 (or USD 75,808,366.21 with interest).115
220.
The terms of the BVA Amendment were "unequivocal: ARPIC was required (a) to share in the capital expense costs incurred by D-R Arabia in connection with the Modon lease and construction of the Dammam Facility pursuant to the KAMCO contract; and (b) to make certain payments to D-R Arabia in respect of its OPEX and CAPEX. D-R BV has repeatedly relied on ARPIC's regular promises and commitments in making its decisions to extend the Loans to D-R Arabia."116 Respondent, however, did not meet its obligations.
221.
Respondent usually hid behind alleged complaints regarding D-R BV or the management of D-R Arabia's performance. Respondent also complained about the lack of board or shareholder meetings for the Joint Venture or the lack of participation with respect to the financial business of the Joint Venture.
222.
By late 2013, early 2014, Claimant realized that Respondent had no real intention of complying with the BVA Amendment or to respect the promises made.
223.
On 22 October 2013, Mr. Mai wrote a letter detailing ARPIC's misconduct as follows:

Breach of Article 180 of Companies Law and of Shareholder Resolution dated 12 March 2013 : ARPIC failed to meet its financial commitments and requirements to the Joint Venture as required under Article 180 of the Companies Law, issued by Royal Decree No. 6 dated 22/3/1385 Hijri and Umm Al Qura No. 2083 dated 16/4/1385 Hijri, as amended. The shareholders signed a resolution that: (i) acknowledged that the audited losses of the Joint Venture amounted to more than 50% of its share capital as of 31 December 2012; (ii) resolved to continue the operation of the Joint Venture pursuant to Article 180; (iii) resolved to provide financial support to the Joint Venture; (iv) resolved to meet the Joint Venture's financial obligations.

Breach of Article 180 of Companies Law and of Shareholder Resolution dated 6 April 2012 : ARPIC failed to meet its financial commitments under Article 180 of the Companies Law. The shareholders signed a resolution which contents were as the one dated 12 March 2013 above.

Breach of Article 180 of Companies Law and of Shareholder Resolution dated 12 April 2011 : ARPIC failed to meet its financial commitments under Article 180 of the Companies Law. The shareholders signed a resolution which contents were as the ones dated 12 March 2013 and 6 April 2012 above.

Breach of Article 157 of the Saudi Companies Law : Article 157 of the Companies Law (issued by Royal Decree No. 6 dated 22/3/1385 Hijri and Umm Al Qura No. 2083 dated 16/4/1385 Hijri, as amended) provided that all shareholders of a limited liability company in the Kingdom of Saudi Arabia were liable for their company's debts as from the date of their Company's formation. Since the Joint Venture was formed on 11 November 2009, all costs and expenses which it incurred should have been born by D-R Arabia and each shareholder should have been liable in proportion with its shareholding. Accordingly, ARPIC was required by law to pay its proportionate share (49.9%) and the share of expenses and costs incurred by D-R BV in operating D-R Arabia and executing the related projects.

Failure to pay for ARPIC's proportion of OPEX incurred by D-R Arabia since its Commercial Registration Date of 11 November 2009 : these costs and expenses included, without limitation, purchase of local and imported parts and consumables for the Yanbu Project; payment to domestic labor in Saudi for execution of the Yanbu Project; payment to Cleveland Bridge as rent for leased space for the Yanbu Project; upgrading the same facility for Aramco qualifications and execution of the Yanbu Project; payment to SPSP and HRDF as tuition for technical Saudi students; and payment to local Saudi subcontracting companies for manpower and equipment rent.

Unreasonably delaying authorization of payments to legitimate third-party creditors : the problem of delayed approved payments to third parties was due to ARPIC's failure to provide signed consent for D-R Arabia's bank checks.

Breach of Article 10(d) of the Articles of Association and of Board Resolution dated 3 March 2010 : according to D-R Arabia's Articles, the General Manager - at the time Mr. Craig - was authorized to sign contracts and bind the Joint Venture without the board's approval. However, ARPIC requirement to have a prior board approval was in "direct breach" of these powers in the Articles and was an attempt to usurp his authorized powers, provided under Articles 10(e)(ii) and 10(e)(iii) of D-R Arabia's Articles.

Breach of Article 10(g) of the Articles of Association: ARPIC did not attend a board meeting which D-R BV attempted to organize in 2012. Moreover, it did not convene any board meetings of its own with prior 30 days' notice along with an agenda.

Breach of Shareholder Approval dated 13 February 2011 : in ARPIC's email dated 13 February 2011, ARPIC provided its express shareholder's approval and support for the Yanbu Project, agreeing to fulfill its financial commitments.

Breach of Shareholder Agreement dated 22 May 2012 : in the notes discussed and signed during the Paris meeting held on 22 May 2012, it was stated that ARPIC would "participate as full partner on Yanbu projects." However, it failed to do so.

Prior knowledge and express or implied consent of all of the Joint Venture's expenditures : D-R Arabia's costs were documented pursuant to the BVA and shared with ARPIC (such as the intercompany balance sheet, operating expenses statement, monthly operation expenses, account payable statement all shared with ARPIC).

Breach of Clauses 4.1 and 4.2 of the BVA Amendment : ARPIC failed to "promptly" make the payments required.

Breach of Clause 2.8 of the BVA : ARPIC failed to pay its required share of "pre-organization" costs.

Failure to Agree to Renew the Joint Venture's Commercial Registration That Expired on 28 September 2013 : the Commercial Registration of the Joint Venture expired on 28 September 2013 due to the delay in ARPIC to deliver an original version of the Article 180 certification as it had promised to do.

Breach of the Oral and Written Agreements at the 14 April 2013 Board of Directors' and Shareholders' Meeting : in this meeting, ARPIC accepted and acknowledged the anticipated losses of the Yanbu Project.

224.
ARPIC frequently complained that D-R Arabia did not provide financial information. However, Mr. Sheikh and Mr. Craig presented financial information to ARPIC on a quarterly basis. ARPIC's representatives also conducted formal audits of the Joint Venture. In fact, there was complete transparency regarding the financial status of the Joint Venture.117 Since there was still lack of trust, the Parties had additional discussions concerning potential settlement, restructure, and buyout. On 20 May 2014, the negotiation resulted in the Heads of Agreement, which provided the key framework for a new deal of the Parties. Since ARPIC was withholding its signature on documents such as the Article 180 Resolutions, Audited Financial Statements, and Board and Shareholder Resolutions to increase share capital of the Joint Venture, causing regulatory issues for the Joint Venture, the Heads of Agreement document was an "attempt to try and resolve the impasse between the Parties." However, ARPIC did not meet these commitments.118

ARPIC's threats to forcibly liquidate the Joint Venture

225.
In the SoC, Claimant contended that ARPIC took certain steps that would trigger the demise of D-R Arabia. Before Claimant filed the SoC, Respondent filed a Statement of Claim before the Honorable President of the Seventh Commercial Tribunal of the Commercial Court in Dammam in which it was stated "it [ARPIC] wishes to liquidate Dresser-Rand Arabia Ltd. Due to the accrual of losses suffered thereby, with total shareholder deficit for the fiscal year ended 31/12/2015G reaching SAR 126,192,820". Respondent's position was that since losses exceeded half of the Joint Venture's capital, dissolution was appropriate pursuant to Article 181 of the Saudi Company's Law.
226.
KSA had promulgated a "new 'formal' bankruptcy law" ("Bankruptcy Law"), which replaced the bankruptcy system in the KSA. The Bankruptcy Law required the formation of a bankruptcy committee to oversee all bankruptcy matters. Given that both Article 181 and the Bankruptcy Law were a novelty, Claimant could not - at the time of the SoC - predict the possible implications and future developments.
227.
Liquidation was a risk since the 2016 financial statements and the draft of the financial statement for 2017 showed that the total liabilities exceeded the total assets of the Joint Venture.119 In an insolvency scenario, it was unlikely that the Loans and Intercompany Receivables would be repaid in their entirety.120 Claimant confirmed that D-R Arabia did not have the financial capability at that time to repay them unless the period for repayment was extended. ARPIC's actions were therefore a "death knell for the Joint Venture".121

(v) Regulatory and administrative issues

228.
According to Claimant, ARPIC's misconduct was not limited to financial problems. It also caused problems in relation to administrative and regulatory activities, such as the signing of shareholder resolutions required under Article 180 and Article 181 of the Saudi Companies Law.122

Relevant provisions of the Saudi Companies Law - Articles 180 and 181

229.
Article 180 of the Saudi Companies Law of 1965 was enacted by Royal Decree Number M/6 dated 22/3/1385H (corresponding to 22 July 1965), which was in effect until its amendment on 2 May 2016. It provided that if losses of a limited liability company reach 50% of its share capital, the managers of the limited liability company must summon the shareholders to decide in a written shareholder resolution whether the limited liability company shall continue to exist, with each shareholder incurring the company's debt, or be dissolved ("Article 180 Resolution"). Should the limited liability company continue to exist by issuing this resolution, then each shareholder would become jointly and severally liable for all debts.
230.
In May 2016, a new law was implemented, replacing Article 180.
231.
Under Article 181, should a limited liability company's loss exceed 50 percent of its share capital, the shareholders were required to execute a resolution to continue (or dissolve) the company ("Article 181 Resolution"). In case the shareholders failed to pass an Article 181 Resolution within the prescribed amount of time, instead of losing the protection of the corporate veil in respect of the company's liabilities (as provided under Article 180), the company would be instead automatically placed into compulsory liquidation.123
232.
Given the Joint Venture's losses, the Parties executed Article 180 Resolutions in 2010, 2011, 2012, and 2013. Subsequently, ARPIC refused to sign Article 180 Resolutions in 2014 and 2015 unless its demands for an indemnity for the losses suffered by the Joint Venture were met. According to an email sent by Mr. Suleman on 15 January 2014:

"[T]here is a reluctance to agree to (sign the Article 180 Resolution] due to the liabilities the JV has incurred and which ARPIC believes have arisen during activities not inline with the intention of the JV."124

233.
In correspondence, ARPIC raised concerns regarding the management of D-R Arabia's authority to enter into the KAMCO contract and whether Mr. Craig was authorized to undertake certain activities. Mr. Craig argued that ARPIC had ratified D-R Arabia's entry into the KAMCO contract through the BVA Amendment, while other activities were consistent with the mandate he was given. According to Claimant, ARPIC raised concerns in "an apparent attempt to exert pressure" on D-R BV in order to improve its contractual bargain.125
234.
On 23 May 2016, D-R Arabia held a board and shareholder meeting to resolve administrative matters, such as the critical status of Article 180 Resolutions for 2014 and 2015 as well as financial statements. ARPIC, however, threatened the viability of the business. Eventually, in 2017, ARPIC executed an Article 181 Resolution in respect of the financial year ended on 31 December 2016. The resolution recognized that the losses incurred by the Joint Venture for the fiscal year ending in 2016 exceeded 50 percent of the Joint Venture's capital and that the Parties would keep the Joint Venture operating as a going concern. To proceed in this direction, pursuant to Article 181, the Parties agreed to cover the losses suffered.126
235.
ARPIC signed the Article 180 Resolution in 2014 committing to cover the financial obligations tracing back to the inception of D-R Arabia through 2013. The Article 181 Resolution for 2016 confirmed ARPIC's commitment to cover financial obligations from the inception of the Joint Venture to those incurred prior to 31 December 2016.127
236.
Claimant also noted that apart from the 180 and 181 Resolutions, ARPIC's actions or inactions implicated several other licenses that were required for the operations of the Joint Venture. These included: the SAGIA Industrial Investment License, Chamber of Commerce Certificate, Saudization Certificate, GOSI Certificate, Commercial Registration, Zakat Certificate, and Audited Accounts. ARPIC obstructed the Joint Venture from complying with these obligations.128
237.
In particular, the Saudi Arabian General Investment Authority ("SAGIA") sent a written notice of the Joint Venture's violation for having practiced unlicensed trading business activity, and breaching prescribed rules and instructions in relation to such activities. The Joint Venture allegedly breached the Saudi law since the activities did not fall within the scope of the wording in the commercial registration and Article, and the share capital of the Joint Venture was lower than the losses incurred. SAGIA gave 60 days to the Joint Venture for a remedy, and instructed that the share capital of the Joint Venture had to be increased and a services breach had to be set up. The share capital had to be increased also in order to obtain a customs exemption from MOCI to import machines for the Dammam Facility. While Claimant presented this situation to Respondent at a board meeting held in Paris 2013, ARPIC refused to pass any resolutions.129
238.
The efforts to increase the share capital proved to be unsuccessful, as ARPIC was unwilling to provide the necessary resources. Claimant could not increase the share capital without Respondent's formal approval.
239.
In February 2014, Mr. Sheikh sent a letter to ARPIC, requesting it to sign the resolutions which would have resolved the issues of establishing a services branch of the Joint Venture, amend the articles to allow the branch to conduct services work also on Dresser Rand and non-Dresser-Rand products, and increase the share capital. Even SAGIA confirmed that such resolutions would resolve the Joint Venture's violations. ARPIC, however, did not reply. Issues with the Dammam Facility's personnel also arose since SAGIA was holding visa requests pending the creation of a services branch.130
240.
Only in November 2014 did ARPIC decide to sign the resolutions for increasing the share capital and a separate branch.131 Nonetheless, ARPIC refused to execute the necessary paperwork. SAGIA sent another notice of violations in January 2016 due to lack of governmental certificates and licenses.132

Removal of Dresser-Rand Signatories

241.
In November 2015, ARPIC tried to remove Mr. Craig from his General Manager position. While that attempt was unsuccessful, ARPIC unilaterally removed him as an authorized signatory on behalf of the Joint Venture with the KSA Chamber of Commerce around March 2016. D-R Arabia was unable to employ new staff or apply for visas for the employees. By letter dated 22 March 2016, Rashed al Rushaid confirmed that ARPIC had unilaterally removed the registered signatories, as it was "a proportionate step to be taken in circumstances where there is a fundamental issue as to conformity on the part of Management with the corporate governance of the Company".133 Claimant tried to have the signatories reinstated, but had to find temporary solutions to the administrative obstacles created by ARPIC.134
242.
In addition, on 15 December 2017, Mr. Craig's visa and work permit expired. He was not allowed, under Saudi Arabia law, to work or live in Saudi Arabia.
243.
At the time of the SoC, there were several administrative problems that could not be solved without a person who could sign on behalf of the Joint Venture. These issues included, amongst others, the appointment of auditors and tax advisors for 2017, the lack of compliance of the Articles, the expiration of D-R Arabia's Saudization Certificate.

(vi) Legal consequences of ARPIC's conduct

244.
Claimant explained that the BVA Amendment was necessary to address Respondent's failure to comply with its obligations, such as to provide land and finance for the Dammam Facility, and to provide funding necessary for the Joint Venture. The BVA Amendment was also necessary to put an end to various disputes running between the Parties. However, Respondent's wrongful conduct continued even after the BVA Amendment, in breach of that agreement.135
245.
The aim of the arbitration, Claimant stated, was to hold ARPIC to the performance of the obligations it owed to Claimant as its Joint Venture partner. Claimant's damage was a result of ARPIC's wrongful conduct which forced Claimant to provide funds to the Joint Venture that Respondent should have provided. The most appropriate remedy was therefore an order for specific performance of the obligations in the BVA and the BVA Amendment.136
246.
As to the particular breaches of contract, Claimant identified the following.

ARPIC's failure to pay sums due under the BVA and BVA Amendment

247.
The Parties had established that the vast majority of CAPEX required would have been funded by ARPIC's affiliate ARIC, which would in turn lease the land and facility to D-R Arabia. Pursuant to Clause 2.3 of the BVA, if any additional expenditure was then required, to the extent this could not be funded by D-R Arabia's cash flow, it would be funded by the Parties in accordance with their pro rata shareholding, failing which if one party funded the expenditure, the non-contributing party would be diluted.137
248.
ARPIC failed to provide the land for the facility, and a substantial expenditure had to be borne by D-R Arabia in order to obtain the proper facilities. Such expenditure was much higher than was envisaged by the Parties at the inception of the Joint Venture. D-R Arabia had sought funding from its shareholders to cover the cash shortfall, but ARPIC refused. Although the Parties agreed on a mechanism under Clause 2.3 of the BVA for such a situation, the mechanism proved unworkable. In order to change the composition of the shareholdings in a limited liability company in the KSA, the company's Articles of Association had to be amended, by a resolution passed by a 75% majority of the existing shareholders. Neither of the Parties held a sufficient majority of the shares in D-R Arabia to allow them to pass such resolution.138
249.
Respondent breached the following provisions:

(i) CAPEX and OPEX incurred by the Joint Venture prior to 31 December 2012

250.
Pursuant to Clauses 4.1 and 4.2 of the BVA Amendment, cited above in paragraph 116, ARPIC was required to promptly pay:

• USD 4,355,050 for operating expenses incurred by the Joint Venture prior to 31 December 2012 (Clause 4.1);

• USD 8,316,920 representing its proportionate share of the capital expenditures incurred by the Joint Venture until 31 December 2012 (Clause 4.2).139

251.
ARPIC, ultimately, agreed to increase its total shareholder loan to D-R Arabia by USD 12,671,970 to fund "promptly" its share of operating and capital expenses up to 31 December 2012.
252.
In breach of these Clauses, Respondent failed to provide these shareholders loans.

(ii) CAPEX and OPEX incurred by the Joint Venture post 31 December 2012

253.
The BVA Amendment also sought to resolve the issue of future funding. In particular, the aim was to settle the dispute in relation to the Modon Lease and the KAMCO contract and to find a mechanism for future cash shortfalls.
254.
In this respect, Clause 3.1 of the BVA Amendment amended Clause 3.9 of the BVA providing that:

"The parties acknowledge and ratify the Company entering into the lease of the land consisting of Lot No.: (TS5:2+4+6+8) that is located in the general plan of Dammam 2nd Industrial City with an area of 42000 m2 (Square Meters Forty Two Thousand) from the Saudi Industrial Property Authority (the "Land Lease"). The parties shall share in the capital expense costs incurred by the Company pro rata in proportion to their respective ownership interests in connection with such lease and the construction of the facility on the property of the Land Lease, including pursuant to the contracts with Al Hamdan and Khalifa A. Almulhem and Partners Co. ("Kamco"), each of which are hereby ratified."

255.
ARPIC expressly ratified the Joint Venture's entry into the Modon Lease, as well as the payment of amounts necessary to cover its proportionate share of CAPEX incurred by D-R Arabia for the Modon Lease and the construction of the Dammam Facility. Prior to the BVA Amendment, Respondent had tried to avoid paying for such costs, arguing that it had not authorized such projects.
256.
As for the future cash requirements, pursuant to Clause 4.3 of the BVA Amendment, it was established that:

"4.3 Cash Advance/Reconciliatory Interest Payment by ARPIC. Promptly upon finalising the first quarter results for 2013, the General Manager shall advise the parties of the operating and capital expenses incurred and submit invoices for payment for both the previously incurred expenses and the projected expenses to be incurred in the following quarter. Each quarter thereafter, the General Manager shall reconcile the projected amounts against amounts actually incurred and project the expenses for the then current quarter and provide the parties with an appropriate invoice therefor, if any...."

257.
Accordingly, the Parties agreed on the following procedure:140

• after the results of the first quarter in 2013 were finalized, the General Manager would advise both Parties on the OPEX and CAPEX incurred and submit invoices to the Parties for both the previously incurred expenses and the projected expenses to be incurred in the second quarter of 2013; and

• each quarter thereafter, the General Manager would reconcile the projected expenses invoiced to the Parties for that quarter against the amounts actually incurred and would project the expenses for the next quarter and issue an invoice to each of the Parties for the payment of the projected expenses.

258.
Taken together, under Clauses 3.1 and 4.3 of the BVA Amendment the Parties agreed that ARPIC would pay its proportionate share of the total CAPEX incurred in respect of the Modon Lease and the construction of the Dammam Facility, and that ARPIC would, on a quarterly basis, pay its proportionate share of the total CAPEX and OPEX of the Joint Venture that could not be paid from the cash it generated.141

Agreement to fund D-R Arabia under the BVA Amendment

259.
While in most jurisdictions shareholders rely on the limited liability, in KSA the local company law is different. Article 180 of the Companies Law, in force at the time the BVA and BVA Amendment were entered into, provided, in brief, that should the losses of a limited company exceed the threshold the company managers had to call a shareholders' meeting. At that meeting, the shareholders were required to decide whether to continue to operate the company, assuming the debts, or to dissolve it.
260.
In case the shareholders did not pass the resolutions, they would be automatically jointly and severally liable for all of the company's debts.
261.
Article 180 was incorporated by the Parties into Article 16(c) of the Articles:

"Losses shall either be borne by the shareholders in the prescribed manner or, if the shareholders so agree, carried over to the next fiscal year. No profits shall be distributed until the losses are fully covered. If the Company's losses reach one half (1/2) of its capital the Board of Directors of the Company must summon the shareholders to a meeting within a period not to exceed thirty (30) days from the date on which the losses reach this level in order to consider whether to continue the Company, in which case the shareholders must determine to pay the Company's debts or to dissolve the Company...If the Company continues to pursue its business without the issuance of a decision to continue it pursuant to the foregoing conditions or to dissolve the Company, the shareholders shall become jointly and severally liable io pay all of the Company's debts and any interested party may request that it be dissolved."

262.
Following execution of the BVA Amendment, the Article 180 threshold was triggered each year of the Joint Venture's operations and the Article 180 resolutions were, accordingly, passed in respect of the financial years ended (i) 31 December 2010; (ii) 31 December 2011; and (iii) 31 December 2012.142
263.
Each 180 resolution provided that "[t]he shareholders of the Company hereby resolve to continue the operations of the Company and provide financial support to the Company, as needed, to meet the Company's obligations as they become due."
264.
By the time the Parties entered into the BVA Amendment they had already agreed to cover the debts of the Joint Venture, Once the BVA Amendment was signed, the Parties had to review the 2013 Operating Plan and capital budget and had to expect that further Article 180 resolutions would be passed in the future. According to Mr. Mai's witness statement,143 Respondent did not contest its obligation to pay its share of CAPEX and OPEX, but rather whether the individual items of expenditure had been properly incurred.144

ARPIC's breaches of its funding obligations

265.
Claimant, relying on the report made by Mr. Grantham, detailed the nature and amount of the sums due for payment by ARPIC pursuant to its contractual obligations.145
266.
Pursuant to Clause 4.3 of the BVA Amendment, D-R Arabia requested from ARPIC the following sums for OPEX after 31 December 2012:

• in respect of the period to 31 December 2013, USD 2,944,000;

• in respect of the period to 31 December 2014, USD 3,207,000;

• in respect of the period to 31 December 2015, USD 2,131,000;

• in respect of the period to 31 December 2016, USD 1,288,000; and

• in respect of the period to 31 December 2017, USD 2,787,000.146

267.
In breach of Clauses 2.3 and 4.3 of the BVA Amendment, Respondent never provided these funds.
268.
Pursuant to Clause 4.3 of the BVA Amendment, D-R Arabia requested from ARPIC the following sums for CAPEX after 31 December 2012:

• in respect of the period to 31 December 2013, USD 10,749,000;

• in respect of the period to 31 December 2014, USD 4,654,000;

• in respect of the period to 31 December 2015, USD 1,027,000;

• in respect of the period to 31 December 2016, USD 482,000; and

• in respect of the period to 31 December 2017, USD 106,000.147

269.
In breach of Clauses 2.3, 3.1 and 4.3 of the BVA Amendment, Respondent never provided these funds.
270.
Accordingly, in breach of Clause 2.3 of the BVA and Clauses 3.1, 4.1, 4.2 and 4.3 of the BVA Amendment, the Respondent failed to pay a total of USD 42,047,000 to D-R Arabia in respect of its obligations to pay its share of the shortfall in OPEX and CAPEX.148 This, Claimant stated, would be "a clear case of breach of contract",149 which forced Dresser Rand to provide significant funds into D-R Arabia that should have been provided by ARPIC. Instead of providing only its 50.1% proportionate share, Claimant provided the entirety of the funding the business required. If D-R BV had not procured the necessary funding, the Joint Venture would have been wound up: a liquidation would have led to other significant losses.150
271.
Loans were made to D-R Arabia via the Dresser-Rand treasury function. In total, through the Loans, DR BV procured payments to D-R Arabia of USD 68,872,000.71 in principal amount (or USD 75,808,000 including interest) in order to cover the Joint Venture's cash shortfalls.
272.
In addition, D-R BV procured that a number of expenses that were payable by D-R Arabia to third parties were paid directly by D-R BV's affiliates and subsequently charged back to D-R Arabia under the Intercompany Receivables. The Intercompany Receivables amounted to USD 10,815,000. As evidenced by the cash calls and Mr. Grantham's Expert Report,151 the total shortfall owed by ARPIC to D-R Arabia as at 31 December 2017 amounted to USD 42,047,000. The investment by D-R BV and its affiliates in respect of CAPEX and OPEX requested from both Parties amounted to USD 79,687,000 (plus interest).152

(vii) Relief sought

273.
Given Respondent's breaches, Claimant sought the remedy of specific performance.
274.
This case was a prime example of a breach of contract claim that would warrant an order of specific performance, which would compel ARPIC to perform the obligations provided in the BVA and the BVA Amendment.
275.
The Tribunal had the power to grant the equitable remedy of specific performance.153
276.
Claimant would suffer substantial injustice if it were to be limited to a claim in damages: a decree of specific performance would be the most effective and convenient remedy in respect to Respondent's breaches.154
277.
Given that it was unclear what would happen with the Loans, i.e., whether they would be further extended, it was impossible for Claimant to quantify the losses suffered as a result of having to continue to bear the funding risk on its own.155 In case the Loans would not be further extended, Claimant would still bear the risk in case the Joint Venture would become insolvent. The difficulty in assessing damages "is a key factor that may be taken into account by the Tribunal when considering whether it is just to limit a claimant to a remedy in damages".156
278.
Regardless of the Loans, since the Joint Venture's share capital was low, and the losses high, Article 181 of the Companies Law created an impending risk of insolvency. The recovery of the full amounts advanced through Loans would be unlikely in case of insolvency. A substantial portion of the losses suffered would fall on Dresser-Rand entities which were involved in providing the Loans. Such entities are not parties to the present Arbitration.157
279.
Therefore, "any damages recoverable by D-R BV would not be reflective of the harm actually suffered by Dresser-Rand as a result of it having to provide funds in the place for ARPIC". A damages award would result in Respondent retaining the continuing benefits resulting from BVA and the BVA Amendment, without having to perform its obligations under these agreements.158
280.
Claimant contended that the analysis regarding a specific performance award also applied to the regulatory and administrative issues suffered by D-R Arabia. These issues would represent a serious challenge for an effective management of the Joint Venture's business. Accordingly, it would be difficult to quantify such losses, but there would be also automatic consequences provided by Saudi law regarding lack of performance of regulatory requirements.159
281.
Claimant submitted that the appropriate remedy in specific performance would be for ARPIC to be ordered to fund its share of the outstanding Loans and Intercompany Receivables by payment to Claimant of:

"(1) the principal sum funded by D-R BV's affiliates under the Loans and Intercompany Receivables; plus

(2) the current outstanding interest due from D-R Arabia on such Loans and damages in lieu of interest in respect of the Intercompany Receivables".160

282.
Claimant therefore requested the Tribunal to exercise its discretion to grant an award compelling the Respondent to fund the outstanding Loans and Intercompany Receivables as above.
283.
Claimant also sought relief in relation to Respondent's breaches in of regulatory and administrative issues:

"The Claimant therefore respectfully requests that the Tribunal exercise its discretion to grant an award compelling ARPIC to comply with the following provisions:

(1) in respect of the appointment of a new general manager, Clause 4.4(a) and Clause 5.1 of the BVA;

(2) in respect of the authorized signatories, Article 10(d) of the Articles and Clause 5.1 of the BVA;

(3) in respect of the appointment of auditors and tax advisers, Article 14 of the Articles and Clause 3.3 of the BVA;

(4) in respect of the amendment of the Articles and Commercial Registration Certificate, Clause 2.1 of the BVA Amendment and Clause 3.3 of the BVA; and

(5) in respect of the Saudization Certificate, Clause 3.3 of the BVA."161

284.
Claimant reserved the right to amend the relief sought.
285.
In summary, Claimant sought the following relief in the SoC:

"In respect of the failure to pay the OPEX and CAPEX sums due up to 31 December 2012:

(1) A declaration that ARPIC has breached Clause 2.3 of the BVA and Clauses 4.1 and 4.2 of the BVA Amendment; and

(2) An order of specific performance of Clause 2.3 of the BVA and Clauses 4.1 and 4.2 of the BVA Amendment, compelling ARPIC to fund a proportion of the Loans and Intercompany Receivables representing the principal amount of USD 12,671,970 at a price representing the principal value of such Loans and Intercompany Receivables, and accrued interest on such Loans and damages in lieu of interest of the Intercompany Receivables.

In respect of the failure to pay the OPEX and CAPEX sums due after 31 December 2012:

(1) A declaration that ARPIC has breached Clauses 2.3 and 3.9 of the BVA and Clauses 3.1 and 4.3 of the BVA Amendment; and

(2) An order of specific performance of Clauses 2.3 and 3.9 of the BVA and Clauses 3.1 and 4.3 of the BVA Amendment, compelling ARPIC to fund a proportion of the Loans and Intercompany Receivables representing the principal amount of USD 29,375,000 at a price representing the principal value of such Loans and Intercompany Receivables, and accrued interest on such Loans and damages in lieu of interest of the Intercompany Receivables.

In respect of the regulatory and administrative issues:

(1) A declaration that ARPIC has breached Clause 4.4(a) and Clause 5.1 of the BVA by its refusal to consent to the appointment of a general manager and its failure to cooperate with D-R BV and D-R Arabia as necessary to facilitate the appointment of a replacement general manager. The Claimant further seeks an order compelling specific performance of Clause 4.4(a) and Clause 5.1 of the BVA in this regard;

(2) A declaration that ARPIC has breached Clause 5.1 of the BVA and Article 10(d) of the Articles by its removal of the signatory authority of all of D-R BV's appointees in respect of the Joint Venture. The Claimant further seeks an order compelling specific performance of Clause 5.1 of the BVA in this regard;

(3) A declaration that ARPIC has breached Clause 3.3 of the BVA and Article 14 of the Articles by its refusal to sign resolutions to appoint auditors and tax advisers for the year ended 31 December 2017. The Claimant further seeks an order compelling specific performance of Clause 33 of the BVA in this regard;

(4) A declaration that ARPIC has breached Clause 3.3 of the BVA and Clause 2.1 of the BVA Amendment by its refusal to sign resolutions to amend the Articles and Commercial Registration Certificate. The Claimant further seeks an order compelling specific performance of Clause 3.3 of the BVA and Clause 2.1 of the BVA Amendment in this regard; and

(5) A declaration that ARPIC has breached Clause 3.3 of the BVA by its failure to engage with D-R Arabia and prevention of D-R Arabia from obtaining the Saudization Certificate. The Claimant further seeks an order compelling specific performance of Clause 3.3 of the BVA in this regard; and

(6) A declaration that ARPIC has breached Clauses 2.3(a) and 3.3 of the BVA and the Saudi Companies Law by its refusal to execute Article 180 Resolutions for 2014 and 2015 and an Article 181 Resolution for 2017. The Claimant further seeks an order compelling specific performance of Clauses 2.3(a) and 3.3 of the BVA in this regard."

286.
Finally, Claimant sought an award of its legal and other costs incurred in the arbitration proceedings.

H. Claimant's Supplement to the Statement of Claim

287.
Claimant submitted the SoC Supplement in order to update the Tribunal on the events that occurred after the SoC was submitted.
288.
In particular, the SoC Supplement covered the following issues:162

• the Respondent's continuing regulatory transgressions, part of a consolidated strategy to damage the Joint Venture;

• financial status of the Joint Venture;

• Respondent's purported defense and counterclaim; and

• Claimant's case updated to reflect the document production process.

(i) Respondent's continuing regulatory transgressions

289.
Claimant stated that Respondent persistently refused to engage with the Joint Venture and provide assistance, including the election of the General Manager. Claimant pointed out that such behavior was part of a "tactical ploy" by Respondent. This was confirmed by an article posted online by Mr. O'Kane, former general counsel of Respondent, in which Mr. O'Kane detailed how when Saudi Partners are not able to control a venture, "acting up and acting out are common responses, akin to throwing a tantrum".163
290.
Mr. O'Kane identified several tactics, such as the removal of the manager, bringing charges against the foreign partner's appointed managers, commencing Saudi proceedings (even if the agreements provide for arbitration), and failing to approve annual accounting.164
291.
All these tactics were employed by Respondent in an effort to undermine the Joint Venture: "Respondent has deliberately acted in breach of the BVA and the BVA Amendment in an attempt to frustrate the Joint Venture and, presumably, to seek to extort settlement from Claimant". Respondent's first attempt to put the Joint Venture into liquidation by initiation of proceedings before the KSA Court proved unsuccessful (even though Respondent appealed that Court decision).165
292.
Claimant also pointed out that in respect of regulatory and administrative issues caused by Respondent, Respondent had failed to produce the documents ordered by the Tribunal. The Tribunal was entitled to draw adverse inferences from the failure to produce.166

(ii) Joint Venture’s financial status

293.
At the time the SoC was filed, the cash calls evidenced that as at 31 December 2017 the total shortfall owed by Respondent to the Joint Venture amounted to USD 42,047,000.167
294.
Since the SoC, there were three amendments to the Loans: (i) with effect from 4 June 2018, D-R Luxembourg loaned an additional USD 200,000 to the Joint Venture to be repaid at the then repayment date for the Loans of 31 July 2018; (ii) following a repayment of this additional USD 200,000 by the Joint Venture, the repayment date for the remaining sums due under the Loans was extended to 31 October 2018 with effect from 1 August 2018; (iii) with effect from 1 November 2018, the repayment date of the Loans was extended until 31 December 2018.168
295.
The principal amount of the Intercompany Receivables as at 30 September 2018 was USD 11,154,646.33.

(iii) Respondent's purported defense and counterclaim

296.
Claimant referred to the summary of the Respondent's position presented in the Terms of Reference. Respondent had argued that the Joint Venture was mismanaged by Claimant, and presented six examples of such mismanagement. Respondent also mentioned the possibility of a counterclaim for the losses incurred always arising from Claimant's mismanagement.
297.
Since Respondent failed to substantiate its claims, by not filing any submission, the summary set out in the Terms of Reference should be disregarded. Moreover, in the KSA proceedings, claims of mismanagement were dismissed, as well as Respondent's subsequent appeal.
298.
"[O]ut of an abundance of caution", Claimant requested Respondent to provide the documents in relation to the elements of alleged mismanagement (Requests 12-17). Respondent did not produce any documents in response to Requests 12,14,16, and 17.
299.
As to Request 13, Respondent produced a limited number of documents relating to Parties' disagreement in relation to the Modon Lease and KAMCO. Claimant stated that it never denied that there was a dispute as to whether Respondent should pay the related costs. Such disagreements were resolved through the BVA Amendment.169
300.
As to Request 15, which referred to documents relating to Respondent's internal audit of the Joint Venture, Respondent failed to produce any documents. It produced a letter dated 12 January 2014 that had no reference to any internal audit.170
301.
Since the KSA court dismissed Respondent's allegations of mismanagement against Mr. Craig, the Tribunal was entitled to draw adverse inferences from the Respondent's failure to provide any documents in support of its position in response to the Tribunal's order for production."171
302.
The "only proper inference to be drawn from the Respondent's failure to produce any documents evidencing any of the supposed mismanagement of the Joint Venture by the Claimant is that there was no such mismanagement".172

(iv) Claimant's claims

303.
In the SoC, Claimant emphasized that, while Respondent contested its liability to pay the costs relating to the Modon Lease and the KAMCO contract, such costs were ratified through the BVA Amendment. However, Respondent failed to pay for such costs. Upon the Tribunal's order, Respondent was required to produce internal e-mail or written correspondence regarding the Respondent's obligations to pay for the Modon Lease (Request 5), and the expenses incurred with respect to the KAMCO contract (Request 7).
304.
However, even the few letters that were produced,173 and which pre-date the BVA Amendment, confirmed that Respondent was aware that it had to pay for the construction and equipment of the Dammam facility. Respondent did not produce any document that would cast doubt on Respondent's obligation to pay the Modon Lease or the expenses incurred with respect to the KAMCO contract.174

(v) Relief sought

305.
Claimant maintained its request for specific performance as previously set out in the SoC. It added that continued losses, explained in the Supplemental Witness Statement of Mr. Sheikh,175 were "no longer contingent but inevitable".176
306.
In the event the Tribunal were to decide not to order specific performance, Claimant asserted that the Tribunal should render an award compelling Respondent to pay the damages "that will be suffered [...] as a result of the Respondent's failure to contribute to the Joint Venture."177 Should the Tribunal find that an award in damages is the correct approach, Claimant reserved "the right to plead further as to the losses suffered as a result of the Respondent's breaches of contract."178
307.
Claimant further stated that if the Tribunal was not "prepared to determine the extent of any damages suffered by the Claimant (and its affiliates) at this stage, the Tribunal should render its findings on liability and retain jurisdiction over these proceedings such that when the Loans fall into default or the Joint Venture enters into insolvency, the Claimant may seek the Tribunal's permission to make further submissions at that stage as to the damages that it will suffer or has suffered as a consequence of the Tribunal's finding as to the Respondent's liability."179

I. Claimant's Skeleton

308.
Pursuant to the pre-hearing conference call, Claimant was invited to specify the relief it sought in the arbitration.
309.
In its 14 January 2019 Skeleton, dated 14 January 2019, Claimant defined its relief as follows:

"In respect of the failure to pay the Opex and Capex sums due up to 31 December 2012:

(1) A declaration that ARPIC has breached Clause 2.3 of the BVA and Clauses 4.1 and 4.2 of the BVA Amendment; and

(2) An order of specific performance of Clause 2.3 of the BVA and Clauses 4.1 and 4.2 of the BVA Amendment, compelling ARPIC to fund a proportion of the Loans and Intercompany Receivables representing the principal amount of $12,671,970 at a price representing the principal value of such Loans and Intercompany Receivables, and accrued interest on such Loans and damages in lieu of interest on the Intercompany Receivables; or in the alternative,

(3) An order for specific performance of Clause 2.3 of the BVA and Clauses 4.1 and 4.2 of the BVA Amendment, compelling ARPIC to make a shareholder loan to the Joint Venture of $12,671,970 plus interest and to execute any documents necessary to authorize the Joint Venture to use these sums to repay the Loans and / or Intercompany Receivables; or, in the further alternative,

(4) A partial award granting the declaration sought at paragraph 98(1) above, and, after further submissions by the Parties on the quantum of damages suffered, an order for damages in respect of the losses that will be suffered as a result of Respondent's breaches.180

In respect of the failure to pay the Opex and Capex sums due after 31 December 2012:

(1) A declaration that ARPIC has breached Clauses 2.3 and 3.9 of the BVA and Clauses 3.1 and 4.3 of the BVA Amendment; and

(2) An order of specific performance of Clauses 2.3 and 3.9 of the BVA and Clauses 3.1 and 4.3 of the BVA Amendment, compelling ARPIC to fund a the proportion of the Loans and Intercompany Receivables attributable to Respondent at a price representing the principal value of such Loans and Intercompany Receivables, which amounts to $29,930,030 as at 30 September 2018 (being the total of $42,602,000 minus the $12,671,970 referred to above), and accrued interest on such Loans and damages in lieu of interest on the Intercompany Receivables; or in the alternative,

(3) An order for specific performance of Clauses 2.3 and 3.9 of the BVA and Clauses 3.1 and 4.3 of the Amendment, compelling ARPIC to make a shareholder loan to the Joint Venture of $29,930,030 plus interest and to execute any documents necessary to authorize the Joint Venture to use these sums to repay the Loans and / or Intercompany Receivables; or, in the further alternative,

(4) A partial award granting the declaration sought at paragraph 99(1) above, and, after further submissions by the Parties on the quantum of damages suffered, an order for damages in respect of the losses that will be suffered as a result of Respondent's breaches.181

In respect of the regulatory and administrative issues:

(1) A declaration that ARPIC has breached Clause 4.4(a) and Clause 5.1 of the BVA by its refusal to consent to the appointment of a general manager and its failure to cooperate with D-R BV and D-R Arabia as necessary to facilitate the appointment of a replacement general manager. Claimant further seeks an order compelling ARPIC to execute a resolution and any further documents necessary to appoint Mr. Hussain Alkhater as general manager of D-R Arabia;

(2) A declaration that ARPIC has breached Clause 5.1 of the BVA by its removal of the signatory authority of all of D-R BV's appointees in respect of the Joint Venture. Claimant further seeks an order compelling ARPIC to execute all documents necessary to reinstate the signatory authority on behalf of D-R Arabia of all of D-R BV's appointees, including the general manager of D-R Arabia;

(3) A declaration that ARPIC has breached Clause 3.3 of the BVA by its refusal to sign resolutions to appoint auditors and tax advisers for the year ended 31 December 2017. Claimant further seeks an order compelling ARPIC to execute a resolution and any further documents necessary to appoint auditors and tax advisers nominated by D-R BV in respect of D-R Arabia;

(4) A declaration that ARPIC has breached Clause 3.3 of the BVA and Clause 2.1 of the BVA Amendment by its refusal to sign resolutions to amend the Articles and Commercial Registration Certificate. Claimant further seeks an order compelling ARPIC to execute resolutions and any further documents necessary to amend the Articles and Commercial Registration Certificate in order to update the shareholders such that D-R BV replaces D-R Holdings as shareholder of D-R Arabia and update the Articles such that they conform to the new Saudi Companies Law; and

(5) A declaration that ARPIC has breached Clauses 2.3(a) and 3.3 of the BVA and the Saudi Companies Law by its refusal to execute Article 180 Resolutions for 2014 and 2015 and an Article 181 Resolution for 2017. Claimant further seeks an order compelling ARPIC to execute an Article 181 Resolution for 2017; or, in the alternative,

(6) A partial award granting the declarations sought at paragraphs 100(1) to (5) above, and, after further submissions by the Parties on the quantum of damages suffered, an order for damages in respect of the losses suffered as a result of Respondent's breaches.182

310.
Claimant also sought an award of all legal and other costs incurred in pursuing the arbitral proceedings.

J. Evidentiary Hearing - Claimant's Evidence, Fact and Expert

311.
The Tribunal Chairman opened the hearing by addressing Respondent's absence:

"[...] First, however, I would like to mention a few procedural points. These points have been well ventilated by the tribunal in previous written communications to the parties, but in view of the absence of any respondent representative at the hearing this morning, which absence was foreshadowed by respondent's legal representative Dr Bader, in an e-mail message sent early morning 18 January 2019, Dubai time, to which the tribunal replied on 19 January 2019, a brief repetition may be appropriate as our hearing begins. The arbitration is being conducted pursuant to the 1998 ICC rules, and the legal place or seat of the arbitration is Dubai.

Early in 2018, when there was the possibility of an interim measures hearing, the parties agreed to London as the geographic location, of course without prejudice to Dubai as the legal place or seat; article 14 of the ICC rules, as well as the terms of reference and procedural order number 1, expressly providing for hearings at a place other than the seat, if the tribunal so decides after conferring with the parties. That hearing did not occur. However, on that basis in November 2018, the tribunal proposed London as again a useful geographic location for the oral hearing on the merits, and invited the parties to express any concerns about London, while of course maintaining Dubai as the legal place of arbitration. Procedural order number 1 with amended procedural timetable, amended as of 7 August 2018, had always provided for an oral hearing on the merits in this time frame, 21 to 25 January 2019, with venue and exact number of days to be determined in due course. Claimant in December 2019 expressed its preference for London ns venue; the tribunal asked respondent on several occasions to express its view on London as venue, and whether respondent planned to participate in the oral hearing on the merits, but respondent stayed silent at that time.

Accordingly, on 14 December 2018, the tribunal issued directions further to its previous communications regarding the location of the oral hearing on the merits. These directions provided that pursuant to article 28 of the UAE arbitration law, the hearing would be held in London, while the seat of arbitration would remain Dubai, unless respondent demonstrated by 17 December 2018, 5.00 pm Dubai time, that it would be impossible for respondent to attend a final hearing located in London. Respondent did not reply.

On 21 December 2018, the tribunal duly summoned the parties to this final hearing in London, commencing on this date, 21 January 2019, the date as set out in procedural order number 1, both in the original procedural order and amended procedural timetable, pursuant to article 14 of the 1998 ICC rules, the terms of reference signed by the parties in this case, procedural order number 1 as amended, and article 28 of the UAE arbitration law. Dr Bader's e-mail of 17 or 18 January 2019 — the timing between those two dates is not significant - in addition to objecting to the London location, also raised a jurisdictional objection that the tribunal had rejected previously on 7 August 2018, and in procedural order number 2, dated 16 October 2018. No circumstances have changed that would cause the tribunal to modify its previous rejection of a jurisdictional objection.

In its reply to Dr Bader on 19 January 2019, the tribunal drew the respondent’s attention to article 21.2 of the 1998 ICC rules which states that: "If any of the parties, although duly summoned, fails to appear without valid excuse, the arbitral tribunal shall have the power to proceed with the hearing."

Respondent, being duly summoned, has failed to appear at this oral hearing on the merits without valid excuse, and the tribunal exercises its power to proceed with this hearing.

As a final point, the tribunal notes that it encouraged Dr Bader to appear, even though respondent has not filed a formal statement of defence or skeleton argument, and informed Dr Bader that if he appeared, he would of course be able to examine witnesses and present oral argument.

We regret that neither Dr Bader nor any other representative of the respondent has appeared, despite having notice of the precise location in London of this hearing, and of course the date.

So the hearing proceeds pursuant to the procedure discussed in the prehearing teleconference of 10 January 2019. [...]"

312.
The first day of the hearing continued with the opening submissions from Brendan Cook and Andy Moody, Claimant's legal representatives. In the afternoon, Mr. Craig and Mr. Sheikh, fact witnesses, gave oral evidence.
313.
On the second day of the hearing, Mr. Mai, a fact witness, gave oral evidence, and Mr. Grantham, an expert witness on quantum, gave a brief presentation and then testified.
314.
The Tribunal indicated that a supplemental report from Mr. Grantham, filed together with Claimant's post-hearing brief, would be useful to the Tribunal. Respondent would of course have the opportunity to address the supplemental report and the post-hearing brief in Respondent's subsequent post-hearing submissions.

K. Claimant's Post-Hearing Submission

(i) The Joint Venture

315.
Claimant stated that the heart of the matter was that, since the creation of the Joint Venture, Respondent failed to provide property to build a facility, and to comply with its contractual commitments.183
316.
It was undisputed that ARPIC was unable to provide the land and facility, as agreed in the BVA. As Mr. Mai testified, there was "an industrial accident, and as a result of that accident, that area was no longer capable of being used as industrial purposes, [ARPIC] couldn't add more facilities or infrastructure to that area; so because that business park was no longer available, the business needed to find an alternative location."184 Respondent consequently lost interest in, and wanted to leave, the Joint Venture.
317.
In order to comply with commitments to Saudi Aramco, D-R Arabia entered into a two-year lease with Cleveland Bridge Arabia Limited, an ARPIC affiliate, to lease part of its facility located in Jubail. The Cleveland Bridge was a short-term solution. D-R Arabia entered into a twenty-year Lease Agreement with Modon to lease land in the Dammam Second Industrial City, where a new facility could be built. Due to design changes, there were additional unforeseen costs.185
318.
The Yanbu project, the first project of the Joint Venture, was completed in March 2013 totaling approximately USD 13,400,000 of losses. Since the initial share capital and cash flow generated by the Joint Venture was insufficient, it was necessary for the Parties to cover the OPEX and CAPEX.
319.
Despite such obligation being provided for in Clause 2.3 of the BVA, Respondent "mispresented its intentions"186, by making promises which it failed to fulfill.
320.
Claimant initially filled the Joint Venture's cash shortfall through Intercompany Receivables: certain D-R Arabia expenses, were to be paid directly by an affiliate, Dresser-Rand Company, and subsequently charged back to the Joint Venture on a non-interest bearing basis. Since this was not a sustainable basis in the long run, D-R International BV and D-R Arabia entered into an Intercompany Loan Agreement under which USD 1,000,000 was initially advanced.187

(ii) The BVA Amendment

321.
On 14 April 2013, the Parties entered into the BVA Amendment, to resolve their outstanding differences, such as costs incurred up to 31 December 2012, authorizations for the Joint Venture to enter into various agreements, removing the General Manager's authority limits, and a future CAPEX and OPEX funding mechanism.
322.
Pursuant to Clauses 4.1 and 4.2 ARPIC agreed to increase its total shareholder loan to D-R Arabia by USD 12,671,970 to fund its share of operating and capital expenses up to 31 December 2012 and agreed to make these payments "promptly".188
323.
However, ARPIC breached the BVA Amendment obligations.189
324.
The Parties also agreed on a future funding mechanism which consisted in:

• once the results of the first quarter of 2013 were finalized, the General Manager would advise both Parties of the OPEX and CAPEX incurred and submit invoices to the Parties for payment for both the previously incurred expenses and the projected expenses to be incurred in the second quarter of 2013; and

• each quarter thereafter, the General Manager would reconcile the projected expenses invoiced to the Parties for that quarter against the amounts actually incurred and would project the expenses for the next quarter and issue an invoice to each of the Parties for the payment of the projected expenses.190

325.
Respondent had to pay on a quarterly basis its proportionate share of CAPEX and OPEX that could not be covered from the cash generated by the Joint Venture. However, Respondent did not pay the sums requested.
326.
Therefore, Claimant had to fund in full the Joint Venture.
327.
Claimant specified that all the information regarding the Joint Venture's activities and operations was regularly transmitted to Respondent. ARPIC continually changed its position on whether to stay in or leave the Joint Venture.

(iii) Authorization to enter into Loans

328.
As to Loan authorizations, during the hearing several questions were raised in relation to the limits imposed on Mr. Craig's authority as the General Manager. According to Claimant, the authority derived from the BVA and the Articles of Association.
329.
In testimony, Mr. Craig stated that: "the loan was...an instrument that we used, we could use, and as a general manager, I had the authority to enter an agreement such as this, where I could secure funding for the operating expenses and capital expenses of the business. And this was especially important during the early part of the business when we were building the facility and we needed capital, and during the operations where there was insufficient cash flow to cover salaries."191
330.
Claimant specified that the Loans were not increasing the Joint Venture's debt position, as the sums were being used to pay debts vis-à-vis third parties (such as employees).
331.
Accordingly, the General Manager had the authority to enter into Loans and Intercompany Receivables under his general power to manage the day-to-day activities, as provided under Clause 5.4 of the BVA and Article 10 of the Articles of Association.
332.
Moreover, Respondent authorized the Loans. In testimony, Mr. Craig stated that he understood that the Board approved them. Claimant emphasized this part of his testimony: "subsequent to negotiations between the shareholders, I would be given direction that I could proceed with the management of the business. These [Loans] -- rather than --I was not getting cash calls resolved, so that was the mechanism provided to me...[The] guidance I received was from the Board, but the communication came from shareholders, and they would have been Dresser-Rand shareholders."192
333.
In addition, Mr. Sheikh stated that the Parties had considered obtaining external finance from the Arab National Bank to cover the cash shortfall, but once "Al Rushaid was presented with that proposal, they realized that the loan that [Dresser-Rand was] proposing to get from [the Dresser-Rand corporate group] was way cheaper compared to what Arab National Bank was proposing. So there was an oral commitment to go ahead with the [Loans]."193 ARPIC had orally authorized the Joint Venture to inter into Loans, since it was more affordable than outside financing through the Arab National Bank.
334.
In addition, the BVA Amendment itself provided the General Manager with the authority to enter into the Loans. Under Clause 4.3 of the BVA Amendment, the shareholders reiterated their commitment to financially support the Joint Venture in relation to the cash requirements. Any shortfall would have therefore led to further shareholding funding and, according to Claimant, Clause 4.3 of the BVA Amendment "impliedly authorize[d] the Joint Venture to enter into funding arrangements with its shareholders in respect of any such shortfall".194
335.
Both Parties understood that the shareholders would have to fund the cash shortfall with respect to CAPEX and OPEX. As Mr. Sheikh testified, "we told them we would need USD 53 million as capex to spend...at that point in time, it was very clear to them that out of the 53, being 50 per cent partner, they need to invest USD 26 million."195
336.
Even under Clause 4.4 of the BVA Amendment the General Manager was expressly authorized to make payments due to certain Dresser-Rand affiliates, as set out in Schedule 4.4. Under this Schedule, both Loans and the Intercompany Receivables were included to the extent they were incurred prior to 31 December 2012.196
337.
In brief, Claimant submitted that: (i) the entry into the Loans fell within the General Manager's power to manage the day-to-day business; (ii) ARPIC approved the entry into the Loans orally in or around February 2013 and expressly under Clause 4.4 of the BVA Amendment; and (iii) ARPIC further approved the entry into the amendments to the Loans to increase the size of the Loans by agreeing under Clause 4.3 that any cash shortfalls should be met by shareholder funding.197

(iv) Authorization of OPEX and CAPEX post-31 December 2012

Clause 4.2(b) of the BVA Amendment

338.
Regarding authorization of OPEX and CAPEX after 31 December 2012, the Parties authorized the Joint Venture to enter into certain agreements under the BVA Amendment.
339.
Under Clause 4.2(b) of the BVA Amendment, the Parties agreed that the General Manger was entitled "to make expenditures that are within the budgets or capital plans approved by the Board"; and the General Manager could perform certain agreements set out in Schedule 4.2(b).

CAPEX authorized under Clause 4.2(b)

340.
The contracts set out in Schedule 4.2(b) were contracts for capital expenditure, replicated in the materials for the Board Meeting held on 14 April 2013 to approve the 2013 Annual Operating Plan. As at 31 March 2013, shown in the materials for the Board Meeting, the total value of the purchase orders in respect of these contracts, amounted to USD 39,867,198.89.
341.
In the Second Supplemental Grantham Report, Mr. Grantham reviewed the actual expenditures incurred on the contracts listed in Schedule 4.2(b) against the actual capital expenditures incurred by the Joint Venture. Mr. Grantham reconciled USD 28,053,201 of capital expenditures actually incurred by the Joint Venture after 31 December 2012 to the contracts approved under Schedule 4.2(b), as detailed in paragraph 4.3.4 of the Report. The cash shortfall resulting from CAPEX contracts is the full value of the expenditures on such contracts, as the contracts do not themselves generate income.
342.
ARPIC's 49.9% share of the CAPEX incurred after 31 December 2012 in respect of the contracts authorized under Schedule 4.2(b) was therefore USD 13,998,547.198
343.
Claimant stated that the key issue was whether any budgets and capital plans had been approved by the Board. At the meeting of the Board held on 14 April 2013, the Board approved the 2013 Annual Operating Plan. The minutes were not signed since, as Mr. Mai testified, the Parties had a disagreement relating to the draft shareholders' meeting minutes of the same date. However, Mr. Mai confirmed that the board in fact approved the 2013 Annual Operating Plan. This Operating Plan contained a "Capital Budget", under which the original project capital budget was increased from USD 53 million to USD 55 million, "for the medium voltage works".199
344.
Since the 2013 Annual Operating Plan, and the new capital budget of USD 55 million, were approved by the Board, the General Manager was authorized to make "any expenditures within" the Capital Budget in accordance with Clause 4.2(b). As set out in the Report to the Board of Directors, this was not solely expected to be capital expenditure incurred in 2013, but the Parties and the Board understood that some of this capital expenditure may be deferred until future years. As such, under Clause 4.2(b), the General Manager was authorized to make capital expenditures, not limited to capital expenditure in 2013, up to the agreed capital budget of USD 55 million.
345.
The total capital expenditure incurred by the Joint Venture as at 31 December 2018 amounted to USD 50,771,69161, which falls within the capital budget of USD 55 million.200

OPEX authorized under Clause 4.2(b)

346.
For the reasons set out above, Claimant emphasized that the General Manager was authorized to make any operating expenditure within the Board-approved budget.
347.
The 2013 Annual Operating Plan also included a section called "PNL Outlook/Forecast based on Q1 Actual vs AOP/Budget" section. Contrary to the 2013 Annual Operating Plan, this section also took into account the actual results from the first quarter of 2013.
348.
Mr. Grantham calculated the cash call that would have been made for 2013 if the budget in the Board-approved 2013 Annual Operating Plan had been achieved: "[t]his would have resulted in a cash shortfall of USD 2,082,000 due from ARPIC in 2013 in respect of operational expenditure (as compared to the actual Opex-related cash call amount of USD 2,907,000 requested from ARPIC in respect of 2013)".201
349.
Accordingly, pursuant to Clause 4.2(b), the Board authorized the General Manager to make expenditures that would have resulted in ARPIC being required to fund USD 2,082,000 in 2013.202

Clause 3.1 of the BVA Amendment

350.
The Parties agreed to pay their share of the Modon Lease, and CAPEX incurred in relation to the facility, including the contracts with KAMCO and Al Hamdan. The latter contracts were included in Schedule 4.2(b) and, as such, the CAPEX incurred for these two contracts was included in the USD 28,053,201 approved in accordance with Clause 4.2(b) and Schedule 4.2(b).203
351.
Mr. Grantham was not able to allocate an additional USD 8,923,723 within the contracts detailed in Schedule 4.2(b). In the Second Supplemental Expert Report, Mr. Grantham confirmed that this capital expenditure was incurred in connection with the construction of the Dammam Facility, and was set out in the Capital Budget explanation in the Report to the Board of Directors that prefaced the 2013 Annual Operating Plan.204
352.
The total capital expenditure fell within the budget authorized by the Board. Accordingly, pursuant to Clause 3.1, the capital expenditure incurred in relation to the construction of the Dammam Facility was authorized by the Parties. ARPIC's share of this CAPEX amounted to USD 4,452,938.67. Under Clauses 3.1 and 4.2(b) of the BVA Amendment the full value of the Joint Venture's CAPEX was authorized and incurred.205
353.
As for OPEX, the Parties had ratified the entry into and performance of the Modon Lease. The OPEX incurred in respect of the Modon Lease from 2014 to 2018 amounted to USD 1.4 million, with ARPIC's share being USD 698,000.68.

Clause 3.6 of the BVA Amendment

354.
Lastly, as to Clause 3.6 of the BVA Amendment, the Parties agreed that the Company would pay the Cleveland Bridge Lease until 31 March 2013 and the housing costs for Mr. Craig until 31 December 2013. Each of these costs were included in the amounts stated above.
355.
In summary, under the BVA Amendment, the Parties agreed on the following expenses:

• OPEX: budget in the 2013 Annual Operating Plan that would have resulted in a cash shortfall in 2013, ARPICs share of which would have been USD 2,082,000; Modon Lease, which resulted in a cash shortfall of USD 1.4 million from 2014 to 2018, of which ARPICs share is USD 698,000; and OPEX incurred prior to 31 December 2012, of which ARPIC had to fund USD 4,355,050

• CAPEX: on 14 April 2013 the Board approved the capital budget of USD 55 million, leaving the General Manager to make any expenditures within this budget; the total CAPEX of the time of the Post Hearing Submission was USD 50,771,691; CAPEX contracts which CAPEX amounted to USD 28,053,201, of which ARPIC's share was USD 13,998,547.74.206

(v) Other Authorizations of OPEX and CAPEX post-31 December 2012

356.
As provided in the Articles of Association and the BVA, the General Manager had the authority to manage the business and affairs of the Joint Venture. In particular, the General Manager was authorized under Article 10(e) of the Articles of Association and Clauses 5.1 and 5.4 of the BVA to approve and execute on behalf of the Joint Venture contracts with both suppliers and customers and to enter into contracts for capital expenditure.
357.
The General Manager was subject to the following three specified thresholds in respect of such contracts:

• in respect of capital expenditure, the Board was required to approve any capital expenditure in excess of SR 3.75 million (approximately USD 1 million) (subject to the General Manager being authorized to incur any capital expenditure in any capital plan approved by the Board under Clause 4.2(b) of the BVA Amendment) (Clause 5.4(a) of the BVA);

• in respect of contracts with suppliers, the Board was required to approve any contract with a value of more than SR 37.5 million (approximately USD 10 million) (Article 10(e)(ii) of the Articles of Association); and

• in respect of contracts with customers, the Board was required to approve any contract with a value of more than SR 93.7 million (approximately USD 25 million) (Article 10(e)(iii) of the Articles of Association and Clause 5.4(b) of the BVA).207

358.
The contracts below these thresholds fell within the General Manager's authority under Clause 5.4 of the BVA and Article 10(e) of the Article of Association, and any operating expenditure incurred in respect of such contracts was properly incurred. If the operating expenditure could not have been met by the cash generated by the Joint Venture, then pursuant to Clause 4.3 of the BVA Amendment, the shareholders were required to pay their share of the shortfall.208
359.
According to the Second Supplemental Report, the Joint Venture did not enter into any contracts with customers or suppliers with a value in excess of the General Manager's authority. Accordingly, none of the operating expenditure incurred required any further Board approval in order for such expenditure to be properly incurred. ARPIC's share of the cash shortfall resulting from this operating expenditure is USD 13,551,063.209

(vi) Total CAPEX and OPEX

360.
Claimant concluded that the Parties had authorized the full value of the CAPEX incurred by the Joint Venture, both before and after 31 December 2012.
361.
In summary, the authorized CAPEX was:210

• under Clause 4.2 of the BVA Amendment, ARPIC agreed to make a loan of USD 8,316,920 in respect of CAPEX incurred prior to 31 December 2012;

• under Clause 4.2(b) and Schedule 4.2(b) of the BVA Amendment, the Parties authorized certain listed contracts, which resulted in total CAPEX of USD 28,053,201 post-31 December 2012, of which ARPIC's share was USD 13,998,547;

• under Clause 3.1 of the BVA Amendment, the Parties authorized the General Manager to execute acts and deeds needed for the Dammam facility, excluding the CAPEX separately authorized under Clause 4.2(b) and Schedule 4.2(b) of the BVA Amendment as set out above, the Joint Venture incurred a further USD 8,923,723 CAPEX for the Dammam facility, of which ARPIC's share was USD 4,452,938.83.

362.
Accordingly, ARPIC's share of the CAPEX incurred by the Joint Venture is USD 25,335,074.
363.
As for OPEX:211

• ARPIC would make a loan of USD 4,355,050 in respect of OPEX incurred up to 31 December 2012;

• under Clause 4.2(b) of the BVA Amendment, all expenditure approved by the Board in the 2013 Annual Operating Plan was authorized, and had the Parties met the 2013 Annual Operating Plan, there would have been a shortfall in cash relating to OPEX in 2013, of which ARPIC's share was UDS 2,082,000.87;

• the Modon Lease resulted in payments of USD 1.4 million from 2014 to 2018, of which ARPIC's share was USD 698,000;

• the contracts with customers and suppliers, below the above thresholds, resulted in cash requirements due from ARPIC from 2013 to date of USD 13,551,063; this sum includes the above sums of USD 2,082,000 and USD 698,000.

364.
Accordingly, ARPIC's share of the total cash shortfall in respect of OPEX was USD 17,906,113.90.
365.
Pursuant to Clauses 3.1, 4.1, 4.2 and 4.3 of the BVA Amendment, ARPIC was obliged to make shareholder loans of USD 25,335,074 in respect of CAPEX, and USD 17,906,113 in respect of OPEX, a total of USD 43,241,187.212
366.
ARPIC, however, failed to make a shareholder loan for these sums, even though it authorized, "to full extent", the CAPEX and OPEX. As Mr. Mai testified: "the joint venture partner was approving all the expenditures that were being paid; you know, they were signing off on the cheques, they knew the outflows that were happening."213 ARPIC's approval was given by countersigning the cheques: "they were signing the cheques, they are in the process for approving...payments...In terms of setting [up] the bank accounts, they insisted on having a signature of authority."214 Mr. Mai further added that: "it wasn't a situation where ARPIC wasn't knowledgeable about what was happening. They were knowledgeable, and there wasn't any objection by ARPIC."215
367.
Mr. Sheikh confirmed this position: "we submitted the information, they never objected back on that. The board was not functioning, they were not meeting, but the information was submitted to both sides, and one side approved it, the other side never responded back."216

(vii) Relief sought

Remedy of Specific Performance

368.
In its Post-Hearing Submission, Claimant again addressed the relief sought in this arbitration.
369.
Regarding specific performance, "the question that the Tribunal must ask itself in deciding whether to award specific performance is whether it is just to confine the Claimant to a remedy in damages, taking into account all of the circumstances",217 as established by Lord Justice Jackson in Araci v. Fallon,218 and, similarly, in Tito v. Wadell.219
370.
Claimant argued that "[t]here is a real risk of harm to Dresser-Rand in the event that it is unfairly required to continue sustaining the Joint Venture from a financial standpoint, as it has to date, and further assuming the risk of a possible insolvency."220 It stated that given that it was forced to provide substantial funds to the Joint Venture, it would be unjust "to confine" Claimant to a remedy in damages.
371.
According to Claimant, Respondent engaged in numerous attempts to damage the joint venture. Those actions prevented the normal functioning of the Joint Venture. It was difficult to assess the position the Joint Venture would have been in had it not faced these problems. Difficulty in assessing the damages is a factor to consider in favor a specific performance remedy221
372.
Moreover, Claimant, in order to prevent the Joint Venture's insolvency, extended the Loans with a repayment date of 16 February 2020, with "a real risk that damages will result from lost opportunities". Since it was impossible to calculate the losses suffered from having to continuously fund the Joint Venture, this was another factor in favor of specific performance.222
373.
There was also a risk of irrecoverable losses being suffered by a third party, which cannot be recovered in these proceedings.
374.
The injustice of limiting Claimant to a remedy in damages would be especially stark in comparison with ARPIC's deliberate strategy to undermine the Joint Venture and avoid its share of the financial burden. Respondent constantly made promises that it would pay its share. Under the BVA Amendment or Article 180 resolutions, these promises were legally binding. Respondent's conduct was neither right nor just, and the most appropriate relief would be an order for specific performance "to ensure that ARPIC funds its share and takes its share of the risk."223
375.
According to Claimant, "ARPIC's bad faith in pursuing this plainly tactical approach to obstruct the management of the Joint Venture having induced Dresser-Rand to continue funding should be taken into account by the Tribunal in determining whether it is just to award specific performance. Specific performance is an equitable remedy and the Claimant submits that equity should step in and assist given ARPIC's manifestly bad faith conduct".224
376.
Claimant argued that a "payment of money" can be enforced by way of specific performance under the English law. When an obligation to lend money is collateral to the main agreement which is capable of specific performance, the agreement to lend money can also be enforced through specific performance. Referring to the Tribunal's questions on whether there was bar as a matter under English law to order specific performance in the context of a joint venture. Claimant answered that the Tribunal was allowed to do so: under Man UK v. Falcon and Latin American Investments v. Maroil, the English Courts had in fact ordered specific performance in the context of a joint venture relationship.

Proposed Order for Specific Performance

377.
Claimant specified that the obligations that it was seeking to enforce were for Respondent to make shareholder loans of USD 43,241,187 to the Joint Venture, pursuant to Clauses 4.1, 4.2 and 4.3 of the BVA Amendment.
378.
This, according to Claimant, could be achieved in two ways:225

• ARPIC could fund USD 43,241,187 of the Loans and/or Intercompany Receivables already advanced by Dresser-Rand to the Joint Venture; or

• ARPIC could make a shareholder loan of USD 43,241,187 to the Joint Venture.

379.
The effect would be that ARPIC will have funded the shareholder Loans to the Joint Venture. This would be appropriate since ARPIC failed to comply with its obligations and induced Claimant to make loans to the Joint Venture for the full amount sought. While Claimant made the necessary loans, it took on a higher risk. Should Respondent fund the amount sought, the Joint Venture would be in a "cash neutral" position. The order for specific performance would be "the most equitable remedy", as it would place all the Parties (Joint Venture included) in the position they would have been had Respondent fulfilled its obligations under the BVA and BVA Amendment.226
380.
Claimant stated that the correct outcome would be for "the Joint Venture to remain in cash neutral position and for Dresser-Rand to be made good in respect of the relevant proportion of the Loans that it was forced to pay through its affiliated".227
381.
In the alternative, Claimant submitted that the Tribunal should order Respondent to make a shareholder loan to the Joint Venture, on reasonable terms (i.e. the terms of the existing loans).228
382.
In the further alternative, in case the Tribunal should decide not to award specific performance, the Tribunal should render a partial final award on liability and retain jurisdiction to determine quantum. In that event, further submissions from the Parties would follow in order to determine the appropriate quantum of damages before a final award could be rendered.229
383.
In the event of a damages claim, Claimant's affiliates - according to Claimant - would be able to recover the sums of this arbitration - as set out in Clause 14.1 of the BVA. Moreover, under Clause 14.2 of the BVA the Parties agreed that "This Agreement shall be binding upon and inure to the benefit of the respective affiliates...of...Dresser-Rand. All obligations, liabilities and benefits pursuant to this Agreement shall inure to such affiliates...".230
384.
Thus, on the basis of the BVA, the BVA Amendment, and the arbitration agreement, affiliates that performed funding activities should be permitted to bring claims to enforce the agreements in their own. This would be further confirmed by section 1(1) of the Contracts (Rights of Third Parties) Act 1999 according to which a third party may enforce the terms of a contract in their own right.
385.
Claimant asserted that it was clear that the arbitral proceedings were being brought on behalf of itself and D-R Luxembourg. D-R Luxembourg's and Dresser-Rand Company's claims against Respondent were assigned to Claimant.
386.
Claimant, acknowledging the Tribunal's concerns about imposing a General Manager or auditors or tax advisers on the Joint Venture, narrowed the scope of the order sought from the Tribunal in relation to these breaches:231

"(1) in respect of a new General Manager, an order for specific performance of Clauses 4.4(a) and 5.1 of the BVA ordering ARPIC not to unreasonably withhold its consent to the appointment of a new General Manager; and

(2) in respect of the appointment of auditors, an order for specific performance of Clause 8.1 of the BVA ordering ARPIC not to prevent an annual audit of the books of account, records and affairs of the Joint Venture being made in each year by an internationally known and recognized firm of certified public accountants and an order for specific performance of Clause 3.3 of the BVA ordering ARPIC io operate the Joint Venture in accordance with its Article of Association, including Article 14, which provides that "The shareholders shall cause an auditor to be appointed annually by a shareholders' resolution adopted at a general meeting"."

387.
Claimant also provided the Tribunal with its Bill of Costs.
388.
In summary, Claimant's 'final' request for relief is as follows (in addition to the costs of the arbitration):232

"In respect of the failure to pay the Opex and Capex sums due up to 31 December 2012:

(1) A declaration that ARPIC has breached Clause 2.3 of the BVA and Clauses 4.1 and 4.2 of the BVA Amendment; an