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

Award

PART I: THE ARBITRATION

1.1.
The Arbitration: This is an international commercial arbitration brought by the Claimant against the First and Second Respondents under a written arbitration agreement signed by all three Parties, incorporating the rules of arbitration of the International Chamber of Commerce (the "ICC") in force as from 1 January 2012 (the "ICC Rules").
1.2.
The Claimant ("E*HealthLine"): The Claimant is E*HealthLine.com Inc., a company organised under the laws of Delaware, United States of America. The Claimant’s headquarters are located at 2450 Venture Oaks, Suite 100 Sacramento, California 95833 United States of America. For ease of reference, the Claimant is here also called "E*HealthLine" and also "EHL".
1.3.
The Claimant's Legal Representatives: E*HealthLine’s legal representatives are:

Charles H. Camp
Theresa B. Bowman
(the latter until 30 September 2016)
of Law Offices of Charles H. Camp, P.C.
1025 Thomas Jefferson Street, N.W., Suite 115G
Washington, D.C. 20007
United States of America
Tel: +1-202-457-7786
Fax: +1-202-457-7788
Email: ccamp@charlescamplaw.com
tbowman@charlescamplaw.com

and (until 4 April 2016)

Gary B. Born
Charlie Caher
John McMillan
of Wilmer Hale Cutler Pickering Hale & Dorr LLP
49 Park Lane
London, W1K 1PS
United Kingdom
Tel: +44-20-7872-1020
Fax: +44-20-7839-3537
Email: gary.bom@wilmerhale.com
charlie.caher@wilmerhale.com john.mcmillan@wilmerhale.com

and (from 4 April 2016).

Stephen Jagusch QC
Timothy L. Foden
of Quinn Emanuel
One Fleet Place
London EC4M 7RA
United Kingdom
Tel: +44-20-7653-2024
Fax: +44-20-7653-2100
Email: stephenjargush@quinnemanuel.com timothyfoden@quinnemmanuel.com

1.4.
The First Respondent ("Modern"): The First Respondent is Modern Industrial Investment Holding Group Company Limited, a legal person organised under the laws of Saudi Arabia. Its principal address is P.O. Box 300856, Riyadh 11372, Saudi Arabia. For ease of reference, the First Respondent is here also called "Modern".
1.5.
The First Respondent's Legal Representatives: Modern’s legal representatives are: Maggie Franke, Christopher H. Johnson and Michael Murray of Johnson & Pump, in association with Al-Sharif Law Office, P.O. Box 9170 Riyadh 11423, Saudi Arabia Tel: +966-11-4625925; Fax: +966-11-464-4898; Email: maggie@alshariflaw.com; chris@alshariflaw.com; mmurray@alshariflaw.com; and Abdulaziz F. Al Hamwah, Abdulkadir Farah, Tenz Taeza, of Modern Industrial Investment Holding Group Company Limited, P.O. Box 300856, Riyadh 11372, Saudi Arabia, Tel: +966-11-419-0627, Fax: +966-11-419-0774; Email: ceo@moderngroup-sa.com; abdulkadir.farah@moderngroup-sa.com; tenz.taeza@moderngroup-sa.com.
1.6.
The Second Respondent ("Pharmaniaga"): The Second Respondent is Pharmaniaga Berhad, a legal person organised under the laws of Malaysia. Its principal address is Pharmaniaga Berhad 467709-M7, Lorong Keluli 1B, Kaw. Perindustrian Bukit Raja Selatan, Seksyen 7, 40000, Shah Alam, Selangor Darul Ehsan, Malaysia. For ease of reference, the Second Respondent is here also called "Pharmaniaga".
1.7.
The Second Respondent's Legal Representatives: Pharmaniaga’s legal representatives are: Philip Clifford and Oliver Browne, of Latham & Watkins 99 Bishopsgate, London EC2M 3XF United Kingdom; Tel: +44-20-7710-1000; Fax: +44-20-7374- 4460; Email: philip.clifford@lw.com; oliver.browne@lw.com; and Dato Farshila Emran and Wan Intan Idura, Pharmaniaga Berhad 467709-M7, Lorong Keluli 1B, Kaw, Perindustrian Bukit Raja Selatan, Seksyen 7, 40000, Shah Alam, Selangor Darul Ehsan, Malaysia; Tel: +603 30020000 ext 288 / 206; Fax: +603 33410797; Email: farshila@pharmaniaga.com; idura@pharmaniaga.com.
1.8.
The Arbitration Agreement: The signed, written arbitration agreement invoked by E*HealthLine is Clause 17(2) (the "Arbitration Agreement") of the Memorandum of Collaboration (the "Memorandum" or "MOC"), being Exhibit E to its Request for Arbitration of 18 March 2014.
1.9.
The Arbitration Agreement contained in the Memorandum provides: "All disputes arising out of or in connection with this Agreement shall be settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce (‘Rules’) by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall take place In London and shall be conducted In English."
1.10.
The Arbitration Tribunal: The Tribunal is comprised of three arbitrators, as follows:

(i) Hilary Heilbron QC, nominated by the Claimant, of Brick Court Chambers, 7-8 Essex Street, London WC2R 3LD, United Kingdom; Tel: + 44-20-7379-3550]; and Email:hilary.heilbron@brickcourt.co.uk;

(ii) Until March 2016, Sir Simon Tuckey, nominated jointly by the First and Second Respondents, of 20 Essex Street, London WC2R 3AL, United Kingdom; Tel: + 44- 20-78421200; and Email: STuckey@20essexst.com;

(iii) From March 2016, Nicholas Fletcher QC, nominated jointly by the First and Second Respondents, of 4 New Square, Lincoln's Inn, London, WC2A 3RJ, United Kingdom; Tel: +44-20-7822-2000; and Email: n.fletcher@4newsquare.com; and

(iv) V.V. Veeder QC, jointly nominated by the two original Co-Arbitrators (with input from the Parties), of Essex Court Chambers, 24 Lincoln’s Inn Fields, London WC2A 3EG, United Kingdom Tel: +44 207 813 8000; and Email: wveeder@londonarbitrators.net.

1.11.
Pursuant to the ICC Rules, Ms Heilbron QC and Sir Simon Tuckey were confirmed as the CoArbitrators by the ICC Court’s Secretary-General on 13 May 2014, as reported to the Parties by the ICC Secretariat’s letter of 13 May 2014. Also pursuant to the ICC Rules, Mr Veeder was confirmed as the Presiding Arbitrator by the ICC Court’s Secretary-General on 12 June 2014, as communicated to the Parties by the ICC Secretariat’s letter dated 12 June 2014.
1.12.
On 8 March 2016, Sir Simon Tuckey was constrained to resign as Co-Arbitrator owing to ill-health. On 14 March 2016, the Respondents jointly nominated Mr Fletcher QC as CoArbitrator to replace Sir Simon Tuckey, as later confirmed by the ICC Court’s SecretaryGeneral on 18 March 2016 and communicated to the Parties by the ICC Secretariat’s letter dated 18 March 2016.
1.13.
The Counsel at the ICC Secretariat in charge of the arbitration is Rocio Digon; Email: rocio.digon@iccwbo.org.
1.14.
The Written Phase: By letter dated 12 June 2014, the ICC Secretariat transmitted the file to the Tribunal pursuant to Article 16 of the ICC Rules.
1.15.
Before the file was transmitted to the Tribunal, the Parties had submitted to the ICC Secretariat: E*HealthLine’s Request for Arbitration of 18 March 2014, Modern’s Answer (with jurisdictional objections) of 28 May 2014 and Pharmaniaga’s Objection to Jurisdiction and Answer also of 28 May 2014.
1.16.
The Parties and the Tribunal signed the Terms of Reference during August and September 2014, pursuant to Article 23 of the ICC Rules.
1.17.
The Tribunal held procedural meetings with the Parties, by telephone conference call, on 23 June 2015 and 5 April 2016.
1.18.
The Tribunal made a large number of procedural orders during this arbitration, principally its orders dated 23 June 2015, 26 July 2015, 20 January 2016, 26 February 2016, 6 April 2016, 12 July 2016 and 13 September 2016. All are in the possession of the Parties; and it would serve no purpose to list them here in full, save for the following and others specifically addressed later in this Award. On 23 June 2015, the Tribunal made a procedural order on the Parties’ disputed requests for document production. It made a further procedural order related to (inter alia) document production on 20 January 2016. On 30 July 2015, the Tribunal made a procedural order on confidentiality, with the consent of the Parties.
1.19.
Written Pleadings: The Parties submitted the following pleadings, with exhibits, during the written phase: E*HealthLine’s Memorial of 23 December 2014; Modern’s Counter Memorial of 30 March 2015; Pharmaniaga’s Counter Memorial of 30 March 2015; E*HealthLine’s Reply Memorial of 15 February 2016; Modern’s Reply Memorial of 17 March 2016; and Pharmaniaga’s Reply Memorial of 18 March 2016. (References to these pleadings and exhibits are here made to the electronic bundles prepared by the Parties for the Hearing).
1.20.
Written Testimony: The Parties submitted during the written phase written witness statements from the following factual witnesses: [REDACTED] (WS1, WS2 & WS3); [REDACTED] (WS1); [REDACTED] (WS 1); [REDACTED] (WS1 & WS2); [REDACTED] (WSl); [REDACTED] (WS1); [REDACTED] (WSl & WS2); [REDACTED] (WS1 &WS2); and [REDACTED] (WS1 & WS2). (References to these witness statements are here made as follows: "[REDACTED] WS1" signifies [REDACTED]s first witness statement).
1.21.
The Parties submitted during the written phase written expert reports from the following expert witnesses: as regards digital forensic computer technology, Mr Daniel Libby for E*HealthLine (ER1 & ER2); Mr Darren Mullins for Modern (ER1 & ER2); and Mr Peter Surrey for Pharmaniaga (ER1 & ER2); and, as regards quantum, Mr James Nicholson for E*HealthLine (ER1 & ER2); and Mr Luke Steadman for Pharmaniaga (ER1 & ER2). Tn addition to their respective expert reports, the three forensic expert witnesses submitted a joint written report. (References to these witness expert reports are here made as follows: "Libby ER1" signifies Mr Libby’s first expert report).
1.22.
The Hearing: The Hearing was held at the IDRC, 70 Fleet Street, London EC4Y 1EU, United Kingdom from 18 to 22 April 2016, recorded by verbatim transcript. It comprised written and oral submissions made by the three Parties’ legal representatives as opening and closing statements. The following factual and expert witnesses also testified orally at the Hearing, subjected to cross-examination: [REDACTED] Mr Libby; Mr Surrey; Mr Mullins; Mr Nicholson; and Mr Steadman. (References to the verbatim transcript, as later corrected with the Parties’ agreement, are here made as follows: "D1.10" signifies page 10 of the first day of the Hearing).
1.23.
Post-Hearing Briefs: The Parties exchanged post-hearing briefs (or "memorials" or "submissions") on jurisdiction and merits on 20 May 2016.
1.24.
E*HealthLine's Application of June 2016: By letter dated 7 June 2016, E*HealthLine complained about certain of the contents of the post-hearing briefs submitted by Pharmaniaga and Modern; and it made the request to the Tribunal described below. At the Tribunal’s request, these two Respondents replied by letters both dated 14 June 2016.
1.25.
In brief, E*HealthLine there requested the Tribunal to: (i) strike and disregard ‘the entirety of the new unfounded allegations put forward with regard to Dr Mekhamer personally tampering with evidence’ (as asserted by E*HealthLine) ; (ii) infer from the Respondents' decision to focus upon belated and unsubstantiated accusations, that the Respondents could not have any genuine confidence in the truthfulness of the remainder of their defences; and, in the alternative, (iii) to appoint its own forensic expert to be given full access to all relevant records of E *HealthLine in California. In brief, the two Respondents opposed this request.
1.26.
By procedural order of 12 July 2016, the Tribunal concluded that it was both unnecessary and inappropriate to grant E*HealthLine’s request at that stage of these arbitration proceedings. Subsequently, in mid-September 2016 at an advanced stage of its deliberations, the Tribunal re-considered E*HealthLine’s application, as described immediately below.
1.27.
By its Procedural Order dated 13 September 2016, the Tribunal decided (inter alia):

"1. The Tribunal refers to the Claimant’s two related applications made by its letter dated 7 June 2016, to which the First and Second Respondents objected by their respective letters both dated 14 June 2016. The Tribunal notes the Claimant’s complaint that the Respondents have made: ‘new, extreme and unsubstantiated allegations of fraud and criminal conduct in their post-hearing briefs [of 20 May 2016] against E*HealthLine’s Chairman of the Board, Dr Yoursy Mekhamer’. The Tribunal also notes the Respondents’ denial that any such allegations are ‘new’ and, further, that the Respondents have not pleaded a claim in fraud against the Claimant, based on Dr Mekhamer’s alleged conduct."

"2. As regards the Claimant’s first application, the Tribunal understands that the Claimant: ‘does not seek to submit any such revisions or additions in light of the Respondents' wholly new accusations against Dr Mekhamer personally. Instead, the Claimant writes to alert the Tribunal of the procedural and ethical impropriety of the Respondents' claims regarding Dr Mekhamer. The Claimant urges the Tribunal to 1) strike and disregard the entirety of the new unfounded allegations put forward with regard to Dr Mekhamer personally tampering with evidence, and 2) infer from the Respondents' decision to focus upon belated and unsubstantiated accusations, that the Respondents cannot have any genuine confidence in the truthfulness of the remainder of their defences’."

"3. The Tribunal considers that it would not be appropriate summarily to ‘strike and disregard’ any allegations pleaded by the Respondents or, indeed, any allegation pleaded by the Claimant itself. As regards all allegations and inferences, the Tribunal considers that these are best addressed and decided in its award, rather than by a procedural order at this late stage of the arbitration. Accordingly, this first application is refused by the Tribunal."

"4. As regards its second application, the Tribunal understands that, in the alternative to its first application, the Claimant: ‘suggests that the only way to properly and fairly approach this very serious allegation [of fraud by Dr Mekhamer] is for the Tribunal to appoint its own forensic expert to be given full access to all relevant records of E *HealthLine in California. Because this issue is already before the Tribunal, Claimant does not submit a renewed application. However, the Claimant hereby offers to pay for the entire costs of the Tribunal's forensic expert, to be reimbursed by Respondents once the expert determines that the Claimant's evidence is authentic’."

"5. The Claimant is correct in reminding the Tribunal that, in earlier procedural orders, the Tribunal declined to appoint its own forensic expert under Article 20(4) of the ICC Rules. Nonetheless, the Tribunal expressly reserved the right to do so at a later date, even after the Hearing. The Tribunal has now given careful consideration to the Claimant’s renewed request to appoint, effectively, a fourth forensic expert with broad terms of reference, in addition to the Parties’ three expert witnesses and their seven expert reports. In all the circumstances, the Tribunal has decided to confirm its decision not to appoint its own expert. Having reached the current advanced state of its substantive deliberations, the Tribunal remains confident that it has sufficient forensic materials to ‘establish the facts of the case’ as required under Article 20(1) of the ICC Rules. Accordingly, the second application is refused by the Tribunal."

1.28.
Costs: The Parties exchanged post-hearing written submissions, reply submissions and supplemental submissions on costs on 6 June, 20 June, 14 July and 27 July 2016.
1.29.
By letter dated 14 June 2016, Modern requested the Tribunal to allow Modern to amend its costs submissions to include the costs associated with E*HealthLine’s request of 7 June 2016. By its procedural order dated 12 July 2016, the Tribunal granted such permission to all three Parties. Modern revised its costs submissions (as regards updated figures) by further written submissions of 27 July 2016.
1.30.
Closing the File: By its procedural order dated 13 September 2016, the Tribunal declared these arbitration proceedings formally closed under Article 22(1) of the ICC Rules.
1.31.
Extensions of Time: At its session of 23 October 2014, the ICC Court fixed 29 May 2015 as the time limit for rendering the Final Award based upon the procedural timetable (Article 30(1) of the ICC Rules). At its session of 13 May 2015, the ICC Court extended the time limit for rendering the Final Award until 31 August 2016 (Article 30(2) of the ICC Rules). At its session of 4 August 2016, the ICC Court extended the time limit for rendering the Final Award until 30 September 2016 (ibid). At its session of 1 September 2016, the ICC Court extended the time limit for rendering the Final Award until 31 October 2016 (ibid). Lastly, at its session of 6 October 2016, the ICC Court extended the time limit for rendering the Final Award until 30 November 2016 (ibid).

PART II: THE PARTIES’ DISPUTE

A: Introduction

2.1.
It is appropriate in this Part II to summarise briefly the Parties’ respective cases on their dispute for the purpose of this Award, together with the relevant provisions of the agreements and documentation upon which each Party principally relies. It should be understood that these are only brief summaries of the Parties’ cases, taken from their written pleadings that were significantly expanded during the Hearing and in their other submissions. The fact that a particular argument or reference is not here expressly cited should not be taken as any indication that it has not been considered by the Tribunal, along with the full presentation of the Parties’ cases.

B: The Principal Agreements and Documentation

2.2.
As indicated below, the Parties refer to certain agreements and documentation, principally as here listed in chronological order:

(i) an oral agreement of 15 March 2011 (as alleged by E*HealthLine) between E*HealthLine and Modern (for ease of reference here called the "Alleged Oral Agreement of March 2011");

(ii) the mutual non-disclosure and confidentiality agreement signed and in writing between E*HealthLine and Pharmaniaga made on or about 17 June 2011 (for ease of reference here called the "Pharma NDA");

(iii) the non-disclosure, non-circumvention and non-competition agreement signed and in writing between E*HealthLine and Modern and made on 25 July 2011 (for ease of reference here called the "Modern NDA"; but, also, more appropriately called "NDNCA");

(iv) the memorandum of collaboration signed and in writing between E*HealthLine, Modern and Pharmaniaga on 27 October 2011 (for ease of reference here called the "Memorandum", but also known as the "MOC");

(v) the ‘Letter of Intent’ in writing ostensibly made between E*HealthLine and Pharmaniaga on or about 16 January 2012 (for ease of reference here called "the ‘LOI’"); and

(vi) an oral agreement of 4 April 2012 (as alleged by E*HealthLine) between E*HealthLine and Pharmaniaga (for ease of reference, here called the "Alleged Agreement of April 2012").

Each of these is described more fully below. (This list omits other contractual oral agreements invoked by E*HealthLine against Pharmaniaga which are addressed later in this Award).

2.3.
(i) The Alleged Agreement of March 2011: [REDACTED]
2.4.
(ii) The Pharma NDA: [REDACTED]
2.5.
[REDACTED]
2.6.
[REDACTED]
2.7.
[REDACTED]
2.8.
(iii) The Modern NDA: [REDACTED]
2.9.
[REDACTED]
2.10.
[REDACTED]
2.11.
[REDACTED]
2.12.
[REDACTED]
2.13.
(iv) The Memorandum: The Memorandum was signed at a public ceremony at a trade fair in Frankfurt, Germany by all three Parties on 27 October 2011.4 It is a document of some 12 pages, in the English language.
2.14.
Clause 17.1, "Governing Law", of the Memorandum provided: "This Agreement shall be governed, construed, performed and enforced in accordance with the Laws of England & Wales without regard to the rules on conflict of law."
2.15.
Clause 17.2 of the Memorandum (the "Arbitration Agreement") provided: "All disputes arising out of or in connection with this Agreement shall be settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce ("Rules") by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall take place in London and shall be conducted in English."
2.16.
[REDACTED]
2.17.
[REDACTED]
2.18.
[REDACTED]
2.19.
[REDACTED]
2.20.
[REDACTED]
2.21.
[REDACTED]
2.22.
[REDACTED]
2.23.
[REDACTED]
2.24.
[REDACTED]
2.25.
[REDACTED]
2.26.
[REDACTED]
2.27.
[REDACTED]
2.28.
[REDACTED]
2.29.
[REDACTED]
2.30.
[REDACTED]
2.31.
[REDACTED]
2.32.
[REDACTED]
2.33.
[REDACTED]
2.34.
[REDACTED]
2.35.
[REDACTED]
2.36.
The Tribunal notes that, under English law, Clause 17.2 of the Memorandum (the "Arbitration Agreement") is a separate or independent agreement which survives the expiry or termination of the Memorandum; see Section 7 of the Arbitration Act 1996. Accordingly, its omission from the list in Clause 15 of the Memorandum can have no effect on the efficacy of the Parties’ Arbitration Agreement or this arbitration, including the jurisdiction of this Tribunal, under English law.
2.37.
[REDACTED]
2.38.
[REDACTED]
2.39.
[REDACTED]
2.40.
(v) The 'LOI': The ‘LOI’ was ostensibly made between E*HealthLine and Pharmaniaga on or about 16 January 2012.5 It is a document of some three pages, in the English language, signed by E*HealthLine (but not by Pharmaniaga). It is alleged by E*HealthLine to be a completed agreement with Pharmaniaga; but Pharmaniaga contends that the LOI was an unsigned draft designed only for discussion between these two Parties; and, further, that Pharmaniaga has no record of ever having received the version signed by E*HealthLine.6
2.41.
The ‘LOI’ read, in material part, as follows:

[REDACTED]

2.42.
[REDACTED]
2.43.
(vi) The Alleged Agreement of April 2012: E*HealthLine contends that an oral agreement, evidenced in writing by E*HealthLine’s letter of 5 April 2012 to Pharmaniaga, was made between Dr Mekhamer for E*HealthLine and Mr Jamaludin Elis for Pharmaniaga during a telephone conversation between them on 4 April 2012. (Pharmaniaga denies the making of such an agreement).
2.44.
E*HealthLine’s said letter of 5 April 2012 read, in material part:7

[REDACTED]

2.45.
[REDACTED]

C: The Claimant's Case (E*HealthLine)

2.46.
In abbreviated summary,8 E*HealthLine contends that it brought together Modern and Pharmaniaga for the purpose of entering into the project for a proposed joint venture with E*HealthLine to develop a pharmaceutical manufacturing facility in Saudi Arabia and to market pharmaceutical products throughout the Middle East. This was done at the request of Modern. E*HealthLine provided extensive services in validating and evaluating the business opportunity. E*HealthLine identified the appropriate pharmaceutical partner to form the joint venture with E*HealthLine and Modern, namely Pharmaniaga.
2.47.
E*HealthLine contends that it (E*HealthLine), Modern and Pharmaniaga entered into a series of contracts to work together towards this tripartite joint venture. E*HealthLine submits that these contracts contained numerous mutual non-disclosure, non-circumvention, non-competition and confidentiality obligations. E*HealthLine contends that, pursuant to these contracts, it prepared a business case and project plans for the project; disclosed confidential and proprietary trade secrets when it introduced Modern to Pharmaniaga; disclosed other confidential and proprietary trade secrets to Modern and Pharmaniaga, including business model information on establishing and operating the project as an "integrated" project; and expended significant sums trying to bring the proposed joint venture to fruition. E*HealthLine submits that its work, including its project plan, business intelligence, business model structure, know-how and trade secrets, all made the joint venture a realistic possibility.
2.48.
However, so E*HealthLine contends, Modern and Pharmaniaga in breach of their respective contractual obligations, entered into the joint venture without E*HealthLine. To that end, E*HealthLine submits that they used, improperly, confidential information belonging to E*HealthLine and preparatory work carried out by E*HealthLine. E*HealthLine contends that the Respondents’ wrongful actions give rise to liabilities to E*HealthLine in contract, unjust enrichment and tort, as well as under California’s CUTSA. E*HealthLine submits that it has suffered substantial actual damages.
2.49.
[REDACTED]
2.50.
[REDACTED]
2.51.
[REDACTED]
2.52.
[REDACTED]
2.53.
[REDACTED]
2.54.
[REDACTED] E*HealthLine submits that, if the Parties had entered into such a tripartite joint venture, it would have been successful; it would have generated substantial profits over an extended period; and E*HealthLine would have obtained 10% of these profits, calculated to be not less than US$ 22.8 million. In addition, so it also submits, E*HealthLine would have generated its own substantial profits by selling its software services to the joint venture, as had been anticipated during the Parties’ discussions in 2011, calculated to be not less than US$ 110.8 million.
2.55.
[REDACTED]
2.56.
Jurisdiction: E*HealthLine rejects all jurisdictional objections made by Modern and Pharmaniaga. E*HealthLine contends that the Tribunal has jurisdiction to decide on their merits all the claims advanced by E*HealthLine against both Modern and Pharmaniaga.
2.57.
The Rectification Claim: As to Clause 11.1 of the Memorandum, E*HealthLine requests the Tribunal to rectify the wording because of the Parties’ common mistake or, alternatively, because of E*HealthLine’s unilateral mistake under English law (as the applicable law).
2.58.
[REDACTED]
2.59.
[REDACTED]
2.60.
[REDACTED] Thus, E*HealthLine contends that the Memorandum should now be rectified to include the word "after."
2.61.
The Memorandum Claims [REDACTED]
2.62.
Other Contractual Claims: E*HealthLine contends that Modern and Pharmaniaga breached other confidentiality, non-competition and non-circumvention obligations made with E*HealthLine, including the Pharma NDA; the Modern NDA; the ‘LOF; the "Alleged April 2012 Agreement" and a covenant of good faith and fair dealing.
2.63.
Tortious Claims (including CUTSA): [REDACTED]
2.64.
Relief Claimed by E*HealthLine: As finally pleaded in its Post-Hearing Brief (Section IV), E*HealthLine, as Claimant, seeks:

a. an award declaring that the Tribunal has jurisdiction over all of E*HealthLine’s claims;

b. in relation to E*HealthLine’s non-circumvention claims:

i. an award rectifying the Memorandum, so that the word "after" is included in Clause 11.1; declaring that the Respondents have breached the exclusivity agreement in Clause 11.1 of the Memorandum; and awarding E*HealthLine damages of US$ 133.7m or an amount to be determined;

ii. alternatively, an award declaring that Modern has breached its noncircumvention obligation in Clause 3 of the NDNCA; and awarding E*HealthLine damages of US$ 133.7m or an amount to be determined;

c. further or alternatively, an award declaring that the Respondents have breached their confidentiality obligations in Clause 8 of the Memorandum, and/or Pharmaniaga has breached Clause 1 of the NDA, and/or Modern has breached Clause 1 of the NDNCA; and awarding E*HealthLine damages of US$ 133.7m or an amount to be determined;

d. further or alternatively, an award declaring that the Respondents have misappropriated E*HealthLine’s trade secrets within the meaning of CUTSA, and awarding E*HealthLine actual damages of US$ 133.7m and exemplary damages of US$ 267.4m, or an amount to be determined;

e. further or alternatively, an award declaring that Pharmaniaga has unlawfully deceived E*HealthLine; and awarding E*HealthLine damages of US$ 133.7m or an amount to be determined;

f. further or alternatively, an award declaring that the Respondents have been unjustly enriched; and awarding E*HealthLine restitution of US$ 20m or an amount to be determined;

g. further or alternatively, an award declaring that the Respondents were negligent; and awarding E*HealthLine damages of US$ 30m or an amount to be determined;

h. exemplary damages on E*HealthLine’s English-law non-contractual claims;

i. interest pursuant to Section 49 of the Arbitration Act 1996 on any such sum due at such rate and for such periods as the Tribunal sees fit;

j. any such additional or other relief as may be just; and

k. costs.

D: The First Respondent's Case ("Modern")

2.65.
In abbreviated summary,10 Modern first makes objections to jurisdiction as regards certain of the claims pleaded by E*HealthLine’s against Modern; and secondly (subject to such jurisdictional objections) Modern denies all liability to E*HealthLine on the merits of all its claims pleaded against Modern.
2.66.
Jurisdiction: As to E*HealthLine’s claims that Modern breached the Modern NDA, Modern contends that the Tribunal has no jurisdiction to address such claims in this arbitration. [REDACTED]
2.67.
As to E*HealthLine’s claims that Modern violated CUTSA, Modern contends that the Tribunal has no jurisdiction to address such claims, based on the Parties’ having chosen expressly the laws of England and Wales, but not those of California, to govern their relationship in the Memorandum. [REDACTED]
2.68.
For these reasons, Modern requests the Tribunal to reject jurisdiction over E*HealthLine’s said claims.
2.69.
Merits: Modern, further or alternatively, denies all of E*HealthLine’s claims, on the merits. [REDACTED]
2.70.
The. Rectification Claim: Modern denies this claim Modern also contends that E*HealthLine’s exclusivity and non-compete claims depend entirely upon its claim for rectification of the Memorandum [REDACTED]
2.71.
The Memorandum Claims: Modern denies these claims. [REDACTED]
2.72.
The Modern NDA Claim: As an alternative to its jurisdictional objection, Modern denies this claim on the merits. [REDACTED]
2.73.
The Alleged Agreement of March 2011 Claim: Modern denies this claim. [REDACTED]
2.74.
The Good Faith and Fair Dealing Claim: Modern denies this claim. [REDACTED]
2.75.
The Unjust Enrichment Claim-. Modern denies this claim. [REDACTED]
2.76.
The CUTSA Claims As an alternative to its jurisdictional objection, Modern denies this claim on the merits. [REDACTED]
2.77.
The Negligent Misleading Claim: Modern denies this claim. [REDACTED]
2.78.
The Fiduciary Duties Claim: Modern denies this claim. [REDACTED]
2.79.
The Civil Conspiracy Claim: Modern denies this claim. [REDACTED]
2.80.
Fraud and Deceit: Modern denies any liability in fraud, including the tort of deceit.
2.81.
Damages: Modern denies these claims for damages. As to E*HealthLine’s claims for actual damages in the revised amounts of US$ 133,700,000 or alternatively damages of US$ 267,400,000, Modern submits that E*HealthLine has suffered no loss at all. Modern contends further that punitive damages (as claimed by E*HealthLine) are not available under English law (as the applicable law); and that any sum, including the sum claimed in the amount of US$ 267,400,000, as exemplary damages is not justified either under CUTSA or English law.
2.82.
Relief Claimed by Modern: Modern seeks an award against E*HealthLine, as recorded in the Terms of Reference (supplemented in its Post-Hearing Brief, Paragraph 85):

(1) Upholding Modern’s jurisdictional objections;

(2) Further or alternatively dismissing E*HealthLine’s claims on the merits;

(3) Ordering E*HealthLine to pay 100% of Modern’s arbitration costs, including ICC administrative fees, the fees and expenses of the Arbitrators and Modern’s legal and other expenses, with interest as the Tribunal deems appropriate; and

(4) Granting Modern such further or other relief as may be appropriate.

E: The Second Respondent’s Case ("Pharmaniaga")

2.83.
In abbreviated summary,11 Pharmaniaga also first makes objections to jurisdiction, as regards certain of the claims pleaded by E*HealthLine’s against Pharmaniaga; and secondly (subject to such jurisdictional objections) Pharmaniaga denies all liability to E*HealthLine on the merits of its claims against Pharmaniaga.
2.84.
Jurisdiction: Pharmaniaga objects to the jurisdiction of the Tribunal in respect of certain claims made by E*HealthLine; namely: (i) E*HealthLine claims that Pharmaniaga breached the Pharma NDA. [REDACTED] Pharmaniaga objects to the jurisdiction of the Tribunal in relation to such disputes; and (ii) E*HealthLine claims that Pharmaniaga has breached California’s Uniform Trade Secret Act (CUTSA). Pharmaniaga objects to the jurisdiction of the Tribunal to deal with this CUTSA Claim, given its inapplicability to the Parties’ dispute in this arbitration as a matter of the applicable law, namely English law.
2.85.
Merits: Pharmaniaga denies all claims advanced by E*HealthLine in their entirety. [REDACTED]
2.86.
[REDACTED]
2.87.
[REDACTED]
2.88.
The Rectification Claim: Pharmaniaga denies this claim. [REDACTED]
2.89.
The Memorandum Claims: Pharmaniaga denies these claims. [REDACTED]
2.90.
[REDACTED]
2.91.
The Pharma NDA Claim: Pharmaniaga denies this claim. [REDACTED]
2.92.
The 'LOI' Claim: Pharmaniaga denies this claim. [REDACTED]
2.93.
[REDACTED]
2.94.
The Alleged April 2012 Agreement Claim: [REDACTED]
2.95.
[REDACTED]
2.96.
Other Contractual Claims: To the extent that E*HealthLine maintains any other contractual claims against Pharmaniaga, Pharmaniaga denies all liability for such claims. [REDACTED]
2.97.
The Good Faith and Fair Dealing Claim: Pharmaniaga denies this claim. [REDACTED]
2.98.
The Unjust Enrichment Claim: Pharmaniaga denies this claim. [REDACTED]
2.99.
The CUTSA Claim: Pharmaniaga denies this claim, both as to jurisdiction and the merits. [REDACTED]
2.100.
The Negligent Misleading Claim: Pharmaniaga denies this claim. [REDACTED]
2.101.
The Fiduciary Duty Claim: Pharmaniaga denies this claim. [REDACTED]
2.102.
The Civil Conspiracy Claim: Pharmaniaga denies this claim. [REDACTED]
2.103.
[REDACTED]
2.104.
Fraud and Deceit: Pharmaniaga denies any liability in fraud, including the tort of deceit.
2.105.
Damages: Pharmaniaga contends generally there is no legal basis for E*HealthLine’s exorbitant claims for damages and, further, that the amounts claimed are based on incorrect assumption. [REDACTED]
2.106.
[REDACTED]
2.107.
Relief Claimed by Pharmaniaga: As to jurisdiction, Pharmaniaga seeks an award against E*HealthLine:

(1) Declaring that the Tribunal does not have jurisdiction in respect of E*HealthLine’s claims for breach of the Pharma NDA or for breach of the Modern NDA;

(2) Declaring that the Tribunal does not have jurisdiction in respect of E*HealthLine’s claims for breach of California’s Uniform Trade Secret Act (CUTSA);

(3) Ordering E*HealthLine to compensate Pharmaniaga in respect of all legal fees and other expenses incurred by Pharmaniaga in connection with its objections to jurisdiction, including the fees and expenses of Pharmaniaga’s lawyers, the Arbitrators, the ICC and any other expenses reasonably incurred in connection with the objections to jurisdiction; and

(4) Ordering such further or other relief as to the Tribunal seems just or appropriate.

2.108.
As to the merits, Pharmaniaga seeks an award:

(1) Dismissing all E*HealthLine’s claims;

(2) Ordering E*HealthLine to pay the costs of the arbitration, including the administrative fees and costs of the ICC, the fees and expenses of the Arbitrators and Pharmaniaga’s costs, fees and expenses, legal and otherwise, reasonably incurred in connection with this arbitration, and such interest as the Tribunal deems appropriate; and

(3) Granting Pharmaniaga such further or other relief as may be appropriate.

PART III: THE PRINCIPAL ISSUES

A: Introduction

3.1.
For the reasons explained below, the Tribunal has resolved to address only the issues arising from the Parties’ pleadings and submissions that are relevant and necessary to decide their dispute by this Award. Unfortunately, it proved impossible for the Parties jointly to agree any comprehensive list of such issues for the Tribunal. The Parties’ several attempts to do so became an increasingly contentious exercise, which entirely defeated its intended purpose.
3.2.
Accordingly, the Tribunal has set out below its own list of principal issues, to be addressed in this Award. Although expressed in more general terms, that list is intended to include all relevant issues raised by each of the three Parties in their successive draft lists of issues, albeit in different terms. (The latter lists are also set out below).

B: The Tribunal’s List of Principal Issues

3.3.
The Tribunal lists its own principal issues as follows, derived from the Parties’ respective cases summarised in Part II above:
3.4.
I - Jurisdiction: These jurisdictional issues address the Respondents’ objections to Tribunal’s jurisdiction regarding certain claims pleaded by E*HealthLine:

I:1: Modern objects to E*HealthLine’s claim under the Modern NDA, which objection E*HealthLine rejects.

I:2: Pharmaniaga objects to E*HealthLine’s claim under the Pharma NDA, which objection E*HealthLine rejects.

I:3: Both Modern and Pharmaniaga object to E*HealthLine’s claims under CUTSA, which objections E*HealthLine rejects.

3.5.
II - Rectification of the Memorandum: E*HealthLine claims the rectification of Clause 11.1 of the Memorandum, which claim both Modern and E*HealthLine deny.
3.6.
III - Contractual Liability under the Memorandum: E*HealthLine claims that both Modern and Pharmaniaga breached their contractual obligations under the Memorandum in two respects, both denied by Modern and Pharmaniaga:

III:1: Modern and Pharmaniaga entered into a bilateral joint venture without E*HealthLine.

III:2: Modern and Pharmaniaga misused Confidential Information received from E*HealthLine.

3.7.
IV: Contractual Liabilities under the NDAs: E*HealthLine claims that Modern and Pharmaniaga breached their respective confidentiality or other obligations under the Modern and Pharma NDAs, denied by each of Modern and Pharmaniaga.
3.8.
V: Other Contractual Liabilities: E*HealthLine claims that Modern and Pharmaniaga breached their respective contractual obligations under other agreements, the Alleged Agreement of March 2011, the Alleged Agreements of June, October, November 2011 and January 2012, their duty of good faith and fair dealing, the ‘LOI’ and the Alleged Agreement of April 2012, all denied by Modern and Pharmaniaga as regards claims made against them.
3.9.
VI: Non-Contractual Liabilities: E*HealthLine claims that Modern and Pharmaniaga are liable for unjust enrichment, negligence, deceit, breach of fiduciary duty and unlawful conspiracy, denied by each of Modern and Pharmaniaga.
3.10.
VII: CUTSA: E*HealthLine claims that Modern and Pharmaniaga are liable under CUTSA for misappropriating its trade secrets, denied by each of Modern and Pharmaniaga.
3.11.
VIII: Damages: In the event of jurisdiction (where disputed) and liability being found by the Tribunal in respect of any of E*HealthLine’s claims, what is the amount of damages recoverable from Modern and Pharmaniaga, jointly or severally?
3.12.
IX: Pre-Award and Post-Award Interest.
3.13.
X: Legal and ICC Costs.

C: The Parties’ Draft Lists of Issues

3.14.
From the first procedural meeting onwards, the Parties attempted to agree a draft list of issues submitted to the decision of the Tribunal in this arbitration. Unfortunately, from the Terms of Reference until even after the Hearing itself, such agreement was not possible. Accordingly, in all, six separate non-agreed draft lists of issues were submitted by the Parties to the Tribunal. These six lists also mark the evolution of the Parties’ dispute to the end of the Hearing. It is appropriate to set them all out below seriatim. For reasons which appear below, it is not necessary in this Award for the Tribunal to decide specifically all the issues identified by the Parties in their six lists.

(I) E*HealthLine‘s First Draft List (in the Terms of Reference)

3.15.
E*HealthLine proposed that the Tribunal should resolve all issues of fact and law arising from any claims and pleadings as submitted by the Parties, including, but not limited to, the following (non-exhaustive) issues, as well as any additional issues of fact or law which the Tribunal, at its own discretion, might deem necessary for the rendering of its Award or Awards.
3.16.
These issues to be determined were, as then proposed by E*HealthLine:

(1) Those relevant to decide the relief sought by the Parties (including on any new claims accepted by the Tribunal under Article 23(4) of the ICC Rules), taking into account the Parties’ positions and the relief requested, and all submissions admitted and filed by the Parties during this arbitral procedure; and

(2) The costs and expenses of and incidental to this arbitration and how such costs should be allocated between the Parties, including whether the Respondents are responsible for all costs and expenses pursuant to Clause 8.6 of the Memorandum.

(II) Modern's First Draft List (in the Terms of Reference)

3.17.
As a non-exhaustive list of issues, Modern proposed the following:

(1) Does the Tribunal possess jurisdiction over E*HealthLine’s Count Seven claims [referring to the CUTSA Claim]?

(2) Was the Memorandum’s integration clause (Clause 18) effective in superseding and merging all previous representations and agreements into its terms, and in excluding all future agreements unless confirmed in writing, and if so may E*HealthLine’s claims arising under other alleged agreements be denied on this basis?

(3) Did the Memorandum expire on 26 November 2011; and if so, what obligations if any survived (Clause 3.1)?

(4) Were all of E*HealthLine’s claims, excepting only those relating to breaches of confidentiality commitments, excluded by the Memorandum’s bar against any right to claim damages based on breach (Clauses 2.1 & 16)?

(5) If the Memorandum continued in effect after 26 November 2011, what obligations remained binding on the Parties?

(6) Were any enforceable Memorandum obligations for which damages are recoverable breached by the Parties?

(7) Should Modern be found liable on any of E*HealthLine’s claims, what damages apply under English law, how are these to be measured, and what is the correct valuation of E*HealthLine’s actual losses if any?

(8) Legal and Arbitration Costs.

(III) Pharmaniaga's First Draft List (in the Terms of Reference)

3.18.
Pharmaniaga proposed the following non-exhaustive list of issues:

(1) whether, and if so, to what extent, the Tribunal has jurisdiction in respect of the claims made by E*HealthLine in its Request for Arbitration under Count Five [referring to the Pharma NDA Claim];

(2) whether, and if so, to what extent, the Tribunal has jurisdiction in respect of the claims made by E*HealthLine in its Request for Arbitration under Count Seven [referring to the CUTSA Claim];

(3) whether the Memorandum expired on 26 November 2011;

(4) if the Memorandum expired on 26 November 2011, whether any obligations survived;

(5) if the Memorandum did not expire on 26 November 2011, what are the Parties’ obligations under the Memorandum;

(6) whether any of the Parties’ obligations under the Memorandum have been breached;

(7) whether the draft letter of intent of 16 January 2012 is legally binding [referring to the ‘LOI’ Claim];

(8) if this draft letter of intent is legally binding, what are the Parties’ obligations under that draft letter of intent and have they been breached;

(9) whether the letter dated 4 April 2012 is legally binding [referring to the Alleged Agreement of April 2012];

(10) if this letter is legally binding, what are the obligations under that letter and have they been breached;

(11) to the extent that any liability is established, the quantum of the damages to which E*HealthLine is entitled; and

(12) Legal and Arbitration Costs.

(IV) E*HealthLine’s Second Draft List of 12 April 2016

3.19.
The following ‘Agreed Issues’ were proposed by E*HealthLine shortly before the Hearing:
3.20.
Issue 1. Whether one or both of the Respondents entered into the following written or oral agreements with Claimant and whether one or both of the Respondents breached some or all of those agreements:

A: June 20, 2011, Mutual Nondisclosure and Confidentiality Agreement between E*HealthLine and Pharmaniaga... [referring to the Pharma NDA].

B: July 25, 2011, Non-Disclosure, Non-Circumvention and Non-Competition Agreement between E*HealthLine and Modern... [referring to the "Modern NDA or NDNCA].

C: October 27, 2011, Memorandum of Collaboration ("MOC").

D: January 16, 2012, Letter of Intent ("LOI") between E*HealthLine and Pharmaniaga.

E: April 4, 2012, Agreement (Confirmed in Writing on April 5, 2012) between

E*HealthLine and Pharmaniaga [REDACTED]

F: March 15, 2011, teleconference [REDACTED]

G: June 19, 2011 teleconference [REDACTED]

3.21.
Issue 2. Whether Clause 11.1 of the MOC should be rectified to include the words "or after"?
3.22.
Issue 3. Whether the Respondents negligently misled Claimant?
3.23.
Issue 4. Whether the Respondents’ conduct constitutes deceit?
3.24.
Issue 5. Whether the Respondents’ conduct constitutes fraudulent concealment?
3.25.
Issue 6. Whether the Respondents’ conduct constitutes civil conspiracy?
3.26.
Issue 7. Whether the Respondents’ conduct constitutes negligence?
3.27.
Issue 8. Whether the Respondents were unjustly enriched by the Claimant’s efforts, including its disclosure of confidential information, including trade secrets?
3.28.
Issue 9. Whether the Tribunal has jurisdiction to hear the Claimant’s claims under the NDA, NDNCA and the California Uniform Trade Secrets Act ("CUTSA")? Whether any information (including, without limitation, Pharmaniaga’s identity disclosed by Claimant to Modern pursuant to the Non-Disclosure, NonCircumvention, Non-Competition Agreement) disclosed by Claimant pursuant to one or more oral and written agreements with Respondents, constituted trade secrets under the CUTSA, and, if so, whether either or both Respondents misappropriated any such trade secrets to the detriment of Claimant? If so, did either or both Respondents wilfully or maliciously misappropriate such trade secrets from Claimant?
3.29.
Issue 10. Whether any violations of contractual and/or legal duties, if any, owed by the Respondents to the Claimant were the cause of any injuries suffered by the Claimant and, if so, what would be the quantum of damages, including alternately Wrotham Park damages that should be awarded to the Claimant?
3.30.
Issue 11. Whether any proven wrongful tortious conduct by either or both Respondents was deliberate and, if so, what would be an appropriate exemplary damage award against the Respondents?
3.31.
Issue 12. Whether E*HealthLine is entitled to exemplary damages under English law because either or both Respondents’ alleged wrongful conduct has been calculated by one or both of them to make a profit for themselves which may well exceed the compensation payable to E*HealthLine (i.e., whether either or both Respondents acted with a cynical disregard for E*HealthLine’s rights, calculating that the money to be made out of the Respondents’ alleged wrongdoing will probably exceed the damages Respondents are at risk of having to pay E*HealthLine)?
3.32.
Issue 13. Whether any Party altered any document used in support of its case and, if so, what is the appropriate remedy?
3.33.
Issue 14. Whether, as Pharmaniaga alleges, any otherwise recoverable losses should be reduced due to E*HealthLine’s failure to mitigate its losses?

(V) E* HealthLine's "Final" Draft List of 26 April 2016 (after the Hearing)

3.34.
Issue 1: Whether one or both of the Respondents entered into the following written or oral agreements with Claimant and whether one or both of the Respondents breached some or all of those agreements:

A: June 20, 2011, Mutual Nondisclosure and Confidentiality Agreement between E*HealthLine and Pharmaniaga ("E*HealthLine-Pharmaniaga NDA").

B: July 25, 2011, Non-Disclosure, Non-Circumvention and Non-Competition Agreement between E*HealthLine and Modern ("E*HealthLine-Modern NDNCA").

C: October 27, 2011, Memorandum of Collaboration ("MOC").

D: January 16, 2012, Letter of Intent ("LOI") between E*HealthLine and Pharmaniaga (including whether the LOI was legally binding).

E: March 15, 2011, oral Agreement on a teleconference [REDACTED]

F: June 19, 2011, oral Agreement on a teleconference [REDACTED]

G: October 8 and 9, 2011, oral Agreements in meetings [REDACTED]

H: October 20, 2011, Agreement in an email [REDACTED]

I: November 17, 2011, Agreement in an email [REDACTED].

J: November 24, 2011, oral Agreement on a teleconference [REDACTED]

K: November 28, 2011, oral Agreement on a teleconference [REDACTED]

L: November 30, 2011, Agreement in an email [REDACTED]

M: January 28, 2012, oral Agreement on a teleconference [REDACTED]

N: January 28, 2012, oral Agreement on a teleconference [REDACTED]

O: January 29, 2012, oral Agreement during a conversation [REDACTED]

P: April 4, 2012, oral Agreement (described and confirmed by E*HealthLine in writing on April 5, 2012) on a teleconference [REDACTED]

3.35.
Issue 2: Whether one or both of the Respondents made the following misrepresentations, among others, and whether Respondents negligently or intentionally misled Claimant by such misrepresentations:

A: [REDACTED]

B: [REDACTED]

C: [REDACTED]

D: [REDACTED]

E: [REDACTED]

F: [REDACTED]

G: [REDACTED]

H: [REDACTED]

I: [REDACTED]

J: [REDACTED]3.36. Issue 3: Clause 11.1 of the MOC:

A: Whether Clause 11.1, among other clauses, was legally binding?

B: Whether Clause 11.1, among others, lapsed with the MOC after 30 days?

C: Whether Clause 11.1 of the MOC should be rectified to include the word "after"?

D: Whether the addition of "after" affects the meaning of Clause 11.1?

E: Whether Clause 11.1, as interpreted by E*HealthLine, is unenforceable as a restraint of trade?

3.37.
Issue 4: Whether any of the written and oral agreements between and among the Parties survive the entire-agreement provision (Clause 18) included in the MOC?
3.38.
Issue 5. Whether one or more of the Respondents’ numerous false and misleading statements and misrepresentations constitute deceit?
3.39.
Issue 6. Whether one or more instances of the Respondents’ conduct, including false and misleading statements concealing information from E*HealthLine, constitute fraudulent concealment?
3.40.
Issue 7. Whether the Respondents’ conduct, including false and misleading statements made to E*HealthLine, constitutes civil conspiracy?
3.41.
Issue 8. Whether the Respondents’ conduct, including false and misleading statements made to E*HealthLine, constitutes negligence, breach of fiduciary duty and/or breach of the duty of good faith and fair dealing?
3.42.
Issue 9. Whether the Respondents were unjustly enriched by the Claimant’s efforts, including its disclosure of confidential information, including trade secrets?
3.43.
Issue 10. Whether the Tribunal has jurisdiction to hear the Claimant’s claims under the Pharma NDA, Modern NDNCA and the California Uniform Trade Secrets Act ("CUTSA")? Whether any information (including, without limitation, Pharmaniaga’s identity disclosed by Claimant to Modern pursuant to the NonDisclosure, Non-Circumvention, Non-Competition Agreement) disclosed by Claimant pursuant to one or more oral and written agreements with Respondents, constituted trade secrets under the CUTSA, and, if so, whether either or both Respondents misappropriated any such trade secrets to the detriment of Claimant? If so, did either or both Respondents wilfully or maliciously misappropriate such trade secrets from Claimant?
3.44.
Issue 11. Whether any violations of contractual and/or legal duties, if any, owed by Respondents to Claimant were the cause of any injuries suffered by Claimant and, if so, whether any such losses are recoverable from the Respondents and, if so, what would be the quantum of lost profits damages, or alternately the amount of Wrotham Park damages, if any, that should be awarded to Claimant?
3.45.
Issue 12. Whether E*HealthLine is entitled to exemplary damages under English law because either or both Respondents’ wrongful conduct has been calculated by one or both of them to make a profit for themselves which may well exceed the compensation payable to E*HealthLine (i.e., whether either or both Respondents acted with a cynical disregard for E*HealthLine’s rights, calculating that the money to be made out of the Respondents’ wrongdoing would probably exceed the damages Respondents are at risk of having to pay E*HealthLine)?

(VI) The Two Respondents' "Final" Draft List of 26 April 2016 (after the Hearing)

3.46.
Issue 1: Whether the Tribunal has jurisdiction to decide E*HealthLine’s claims under:

A: the NDA [referring to the Pharma NDA];

B: the NDNCA [referring to the Modern NDA]; and/or

C: the California Act [referring to CUTSA].

A number of the issues below will not be relevant if the Tribunal decides that it does not have jurisdiction under the NDA, the NDNCA and/or the California Act.

3.47.
Issue 2: Document Tampering:

A: Which Party or Parties were responsible for the alteration of documents relating to the insertion of "after" in Clause 11.1?

B: What are the consequences/remedies in relation to the claims, defences and/or costs allocations?

3.48.
Issue 3: The MOC:

A: Whether, save for Clause 8, the MOC was legally binding in light of, in particular, Clauses 2.1 and 16.

B: Whether Clause 11.1 was legally binding in light of, in particular, Clauses 2.1 and 16.

C: If so, whether E*HealthLine has proved any breach of Clause 11.1 (unrectified).

D: Whether E*HealthLine has proved that rectification should be granted for common mistake.

E: Whether E*HealthLine has proved that rectification should be granted for unilateral mistake.

F: Whether Clause 11.1, if rectified as requested by E*HealthLine:

i. would have a different meaning;

ii. would last forever as E*HealthLine suggests; and/or

iii. would be unenforceable as a restraint of trade.

G: Whether E*HealthLine has proved that Clause 11.1, if rectified, has been breached as alleged.

3.49.
Issue 4: Confidentiality Obligations:

A: Whether the NDA (with Pharmaniaga) and/or the NDNCA (with Modern) and/or any of the alleged agreements survive the entire agreement provision (Clause 18) in the MOC.

B: Whether E*HealthLine has proved that it provided any information considered "confidential" under the NDA and/or the NDNCA and, if so, what and when.

C: Whether E*HealthLine has proved that it provided any information considered "confidential" under the MOC and, if so, what and when.

D: Whether E*HealthLine has proved that Pharmaniaga breached any confidentiality obligations in the NDA and/or that Modern breached any confidentiality obligations under the NDNCA and, if so, which, how and when.

E: Whether E*HealthLine has proved that Pharmaniaga and/or Modern breached any confidentiality obligations in the MOC and, if so, which, how and when.

3.50.
Issue 5: The California Act:

A: Whether E*HealthLine has proved that it provided Pharmaniaga and/or Modern with "trade secrets" (for the purposes of the California Act).

B: Whether E*HealthLine has proved that Pharmaniaga and/or Modern "misappropriated" any trade secrets under the terms of the California Act.

C: Whether E*HealthLine has proved that it suffered any of the alleged loss as a result of any misappropriation and, if so, what loss, how and when.

D: Whether E*HealthLine has proved that it should be awarded exemplary damages.

E: Whether the award of exemplary damages under the California Act would be contrary to public policy and/or contrary to the Tribunal’s obligation to seek to render an enforceable award.

3.51.
Issue 6: Deceit Claims (and "fraudulent concealment" and "intentional misrepresentation"):

A: Whether E*HealthLine has proved that Pharmaniaga deliberately or recklessly made any specifically alleged and particularised false representations to E*HealthLine.

B: Whether E*HealthLine has proved that Pharmaniaga intended that E*HealthLine rely upon any such representations.

C: Whether E*HealthLine has proved that it did in fact rely upon any such representations and suffered any of its claimed loss as a result of any such reliance.

3.52.
Issue 7: Unjust Enrichment:

A: Whether E*HealthLine has proved that Pharmaniaga and/or Modern was enriched by E*HealthLine’s alleged "information and services" and, if so, how, when and to what extent.

B: Whether E*HealthLine has proved that any enrichment was unjust.

C: Whether E*HealthLine has used the legally correct measure of enrichment for its claim, including the time and manner for assessment of the enrichment.

3.53.
Issue 8: Claims that Pharmaniaga and/or Modern "negligently misled" E*HealthLine (and "negligence" and "negligent misrepresentation"):

A: Whether E*HealthLine has proved that Pharmaniaga and/or Modern owed E*HealthLine a duty of care.

B: Whether E*HealthLine has proved that Pharmaniaga and/or Modern negligently misled E*HealthLine.

C: Whether E*HealthLine has proved that Pharmaniaga’s and/or Modern’s representations have caused E*HealthLine any loss.

3.54.
Issue 9: Whether the following were binding agreements and, if so, whether E*HealthLine has proved that Pharmaniaga and/or Modern has breached any obligations under them:

A: A draft letter of intent allegedly signed by E*HealthLine but not Pharmaniaga;

B: The alleged 4 April 2012 agreement;

C: Alleged additional oral or written agreements on: (i) 15 March 2011; (ii) 19 June 2011; (iii) 8, 9 19 and 20 October 2011; (iv) 17, 24, 28 and 30 November 2011; (v) 23, 28 and 29 January 2012; (vi) 12 February 2012.

3.55.
Issue 10: Whether E*HealthLine has proved that Pharmaniaga and/or Modern were under a duty of good faith and fair dealing towards E*HealthLine and, if so, whether any such duty has been breached.
3.56.
Issue 11: Whether E*HealthLine has proved that Pharmaniaga and/or Modern were under fiduciary duties towards E*HealthLine and, if so, whether any such duties have been breached.
3.57.
Issue 12: Whether E*HealthLine has proved that Pharmaniaga and Modern engaged in a "civil conspiracy".
3.58.
Issue 13: Recoverable Losses:

A: Whether, to the extent that Pharmaniaga and/or Modern breached any obligations and/or duties, E*HealthLine has proved that the breach caused any loss and, if so, what is the quantum of any recoverable loss.

B: Whether E*HealthLine failed to mitigate its loss and, if so, to what extent.

C: What is the effect of Clause 9 of the MOC on any recoverable loss?

D: Whether E*HealthLine has proved that it is entitled to exemplary damages under English law and, if so, what the measure of such damages should be.

D: The Tribunal’s Check-List

3.59.
For the purpose of this Award, the Tribunal has attempted to cover all the draft issues separately identified by the three Parties, to the extent necessary and relevant to this Award, as a form of non-exhaustive check-list supplementing its own List of Principal Issues. As will appear later, the Tribunal has not found it necessary to address or decide all these draft issues.

PART IV: THE PRINCIPAL FACTUAL BACKGROUND

A: Introduction

4.1.
The Tribunal sets out below in this Part IV a chronology of the principal events relevant to its decisions in this Award, with disputed facts as found and noted by the Tribunal. This chronology is not complete; and it eschews unnecessary controversies between the Parties. It is intended only to explain, as determined by the Tribunal, the principal factual background relevant to other issues addressed later in Part V of this Award.

B: Chronology

(1) The Alleged Agreement of March 2011

4.2.
[REDACTED]
4.3.
Dr Mekhamer testified in his first witness statement, as follows:[REDACTED]
4.4.
[REDACTED]
4.5.
[REDACTED]
4.6.
[REDACTED]

(2) The Alleged Agreement of June 2011

4.7.
[REDACTED]
4.8.
[REDACTED]
4.9.
[REDACTED]
4.10.
[REDACTED]

(3) The Pharma NDA of June 2011

4.11.
The Pharma NDA, undated, was made between E*HealthLine and Pharmaniaga on or about 17 June 2011.8 As described above, it was signed by Pharmaniaga on 17 June 2011 and by E*HealthLine on or soon after the same date. Its material terms are set out in Part II above, to which the Tribunal returns later in this Award.

(4) The Modern NDA of July 2011

4.12.
The Modern NDA (also called the "NDNCA"), undated, was made between E*HealthLine and Modern on or about 25 July 2011.9 As described above, it was preceded (inter alia) by the telephone conference-call on 15 March 2011 between these two Parties. Its material terms are set out in Part II above, to which the Tribunal returns later in this Award.

(5) The Meetings in Sacramento on 8 & 9 October 2011

4.13.
[REDACTED]
4.14.
[REDACTED]

(6) The Alleged Agreement of October 2011

4.15.
[REDACTED]
4.16.
[REDACTED]
4.17.
[REDACTED]
4.18.
[REDACTED]
4.19.
[REDACTED]
4.20.
[REDACTED]

(7) The Memorandum of 27 October 2011

4.21.
[REDACTED]
4.22.
[REDACTED]

(8) The Meeting of 28 October 2011

4.23.
[REDACTED]
4.24.
[REDACTED]
4.25.
[REDACTED]
4.26.
[REDACTED]
4.27.
[REDACTED]
4.28.
[REDACTED]
4.29.
[REDACTED]
4.30.
[REDACTED]
4.31.
[REDACTED]
4.32.
[REDACTED]
4.33.
[REDACTED]
4.34.
[REDACTED]
4.35.
[REDACTED]
4.36.
[REDACTED]
4.37.
[REDACTED]
4.38.
[REDACTED]
4.39.
[REDACTED]
4.40.
[REDACTED]
4.41.
[REDACTED]
4.42.
[REDACTED]

(9) The Alleged Agreements of November 2011

4.43.
[REDACTED]
4.44.
[REDACTED]
4.45.
[REDACTED]
4.46.
[REDACTED]
4.47.
[REDACTED]
4.48.
[REDACTED]
4.49.
[REDACTED]
4.50.
[REDACTED]

(10) The Alleged Agreement of 12 January 2012

4.51.
[REDACTED]
4.52.
[REDACTED]
4.53.
[REDACTED]
4.54.
[REDACTED]
4.55.
[REDACTED]

(11) The 'LO1' of 16 January 2012

4.56.
[REDACTED]
4.57.
[REDACTED]
4.58.
[REDACTED]
4.59.
[REDACTED]
4.60.
[REDACTED]
4.61.
[REDACTED]
4.62.
[REDACTED]

(12) The Alleged Agreements of January 2012

4.63.
[REDACTED]
4.64.
[REDACTED]
4.65.
[REDACTED]
4.66.
[REDACTED]

(13) The Notice of Non-Compliance of 12 February 2012

4.67.
[REDACTED]
4.68.
[REDACTED]

(14) The Alleged Agreement of April 2012

4.69.
[REDACTED]
4.70.
[REDACTED]

4.71.
[REDACTED]
4.72.
[REDACTED]

(15) The Demand Letter of 7 October 2013

4.73.
[REDACTED]
4.74.
[REDACTED]

(16) The Request for Arbitration of 18 March 2014

4.75.
On 18 March 2014, E*HealthLine, as the Claimant, began this arbitration against Modern and Pharmaniaga as First and Second Respondents, by its Request for Arbitration submitted to the ICC International Court of Arbitration.

(17) The ‘Bilateral Joint Venture’ (between Modern and Pharmaniaga)

4.76.
[REDACTED]
4.77.
[REDACTED]
4.78.
[REDACTED]
4.79.
[REDACTED]
4.80.
[REDACTED]
4.81.
[REDACTED]
4.83.
[REDACTED]
4.84.
[REDACTED]
4.85.
[REDACTED]
4.86.
[REDACTED]

PART V: THE TRIBUNAL’S ANALYSES AND DECISIONS

A: Introduction

5.1.
Applicable Procedural Rules: As recited in Part I above, the place (or juridical seat) of this arbitration is London, England, as agreed by the Parties in Clause 17.2 of the Memorandum (the "Arbitration Agreement") and confirmed in Paragraph 98 of the Terms of Reference.
5.2.
By virtue of such seat in London, Part 1 of the Arbitration Act 1996 of England and Wales applies to this arbitration as the lex loci arbitri (Section 2(1) of the 1996 Act). Its non-mandatory provisions are default rules, applying only in the absence of any written agreement by the parties otherwise (Sections 4(2) and 5(1) of the 1996 Act). Its mandatory provisions apply notwithstanding the parties’ agreement to the contrary (Section 4(1) of the 1996 Act).
5.3.
In the Terms of Reference, the Parties also agreed, in Paragraph 101, that: "The applicable procedural rules, save and to the extent prohibited by any mandatory law applicable to this arbitration at the place of arbitration [namely, London, England], shall be those deriving from the Arbitration Agreement [incorporating the ICC Rules] and, where silent, by the decision of the Tribunal taking into account any joint proposal made by the Parties in writing."
5.4.
Applicable Substantive Laws: Under Article 21(1) of the ICC Rules, "the parties shall be free to agree upon the rules of law to be applied by the arbitral Tribunal to the merits of the dispute". Under Section 46(1)(a) of the 1996 Act, the tribunal "shall decide the dispute... in accordance with the law chosen by the parties as applicable to the substance of the dispute".
5.5.
As recited in Part II above, the Parties expressly agreed on English substantive law to apply to the Memorandum (Clause 17); and Pharmaniaga and E*HealthLine agreed on Singapore law to apply to the Pharma NDA (Clause 8). There was no other express agreement to any substantive law in any of the other agreements (whether as alleged or otherwise) between the Parties.
5.6.
In the absence of agreement between the Parties, under Article 21(1) of the ICC Rules, the Tribunal is required to "apply the rules of law which it determines to be applicable." This power does not depend upon rules on the conflict of laws at the place of arbitration or elsewhere: i.e. it provides for "voie directe". This provision may be contrasted with Section 46(3) of the 1996 Act: "If or to the extent that there is no such choice or agreement [on rules applicable to the substance of the dispute], the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable." However, Section 46(3) of the 1996 Act is a non-mandatory provision (see Schedule 1 to the 1996 Act).
5.7.
Apart from E*HealthLine’s Claim under CUTSA (a California statute) and its Claim under the Pharma NDA (expressly subject to Singapore law), all other claims by E*HealthLine have been argued by all three Parties under English substantive law. In the circumstances, the Tribunal is content to adopt the same approach in this Award.
5.8.
Article 21(2) of the ICC Rules requires the Tribunal to: "take account of the provisions of the contract, if any, between the parties and of any relevant trade usages." The Tribunal returns below to the significance of this rule, as agreed by the Parties.
5.9.
The Parties have conferred no power upon the Tribunal to act as amiable compositeur or to decide their dispute ex aequo et bono within the meaning of Article 21(3) of the ICC Rules or otherwise. There is also no agreement between the Parties to any similar effect within the meaning of Section 46(1)(b) of the 1996 Act. This position was confirmed in Paragraph 102 of the Terms of Reference. The Tribunal has not sought to exercise any such power; and it has not done so in this Award.
5.10.
Testimony: The Tribunal considers that, with one exception, all the witnesses who testified orally at the hearing, both witnesses of fact and expert witnesses, were honest and trying in good faith to assist the Tribunal. As to the factual witnesses, their memories and understandings were sometimes inaccurate or incomplete or even absent, but they were doing their best with events taking place several years ago. The exception was Dr Mekhamer, the principal factual witness for E*HealthLine, its cofounder and the chairman of its board of directors, if not also E*HealthLine’s alter ego in this case.
5.11.
It is first necessary to recognise that Dr Mekhamer is an extremely able and highly intelligent person, with an excellent knowledge of English as a second language. He is a senior medical specialist, with developed skills in computer technology.
5.12.
For present purposes, the Tribunal can do no better than cite the fulsome description of E*HealthLine and Dr Mekhamer given at the hearing by E*HealthLine’s Leading Counsel:1 "Who is E*HealthLine? It is based in Sacramento, California. It is a healthcare technology company co-founded in the late 1990s by Dr Yousry Mekhamer, the Claimant's key witness. Dr Mekhamer... has been the chairman of the board of E*HealthLine since late 2000. He will tell you that his company had some -and this is in 2015 — some $180 million in revenues and employs some 215 people. It is no fly-by-night operation. He is an exceptionally smart and capable man, as you will see for yourself. Bom in Egypt, he attained a medical degree from [the] University of Cairo School of Medicine, and a veterinary science degree, also from the University of Cairo. That is impressive in and of itself. But he would go on to complete a general surgery residency, several clinical fellowships, as well as undertaking a residency in cardiothoracic surgery. In 1989 Dr Mekhamer obtained a PhD in clinical cardiology from the University of Paris Sud Medical School. He then relocated to the United States, specifically California, in order to pursue a doctorate of comparative pathology at the University of California Davis, a degree he obtained in 1996... Shortly after his obtaining his second doctor doctorate, Dr Mekhamer, with others, including his wife Georgette Smart, who you will also hear from tomorrow, formed E*HealthLine. So E*HealthLine is a software company. But to call it that would be a serious over-simplification. It is a miner, it mines healthcare data. It provides value to its clients through its ability to gather, arrange, filter and process data, typically in real-time, so as to allow pharmaceutical companies - pharmacies, doctors, hospitals, other healthcare providers - to maximise resources and products to minimise costs and increase profits. In a sense E*HealthLine is at the forefront of the new pharmaceutical economy..."
5.13.
As will be apparent from several places in this Award, the Tribunal did not find Dr Mekhamer to be a reliable witness. He clearly feels strongly that the two Respondents have treated him shabbily and have deprived E*HealthLine unfairly of a magnificent and well-remunerated business opportunity in Saudi Arabia and also, potentially, elsewhere in the Middle East and North Africa. His sense of grievance has led him to believe that what he alleges to have happened did happen, whatever the factual position. He may thus have persuaded himself that what he said was true. However, Dr Mekhamer gave evidence to the Tribunal that he must have known to be untrue, as indeed it was. There were also other occasions when his testimony was impossible for the Tribunal to accept. For this reason, the Tribunal has not relied upon any testimony from Dr Mekhamer that was not corroborated independently by the cogent testimony of one or more other factual witnesses or by contemporary, unimpeachable documentation. As explained above, the Tribunal does not consider that the testimony of Ms Smart qualifies as such corroboration.
5.14.
It is necessary to record that Dr Mekhamer is not a party to this arbitration, the Parties’ Arbitration Agreement, the Memorandum or any other agreement made or allegedly made between the Parties. Whilst Dr Mekhamer’s conduct and testimony have been subjected to severe criticism by both Pharmaniaga and Modern, neither of these Respondents could or did plead any claim of fraud against him personally in this arbitration.
5.15.
It also necessary to refer to a missing factual witness: Ms Mary Hoyer, E*HealthLine’s Vice-President for Global Development working at its office in Sacramento, California. Her absence as a witness was never satisfactorily explained by E*HealthLine, given that she was apparently the recipient or sender of many emails and participated in telephone calls with Modern and/or Pharmaniaga. She could have assisted the Tribunal on many significant issues. Her emails took on an added significance because Dr Mekhamer told the Tribunal that he did not himself use e-mail; and the Tribunal has seen no e-mails sent to or from an e-mail address belonging to him. Hence she was the only, or main, form of e-mail conduit to and from him. However, in the circumstances, the Tribunal has decided to draw no adverse inference against E*HealthLine for not calling her as a witness. It appears that Ms Hoyer no longer works for E*HealthLine.2 Equally, however, E*HealthLine can derive no advantage from her absence.
5.16.
Documentary Evidence: As will appear below, faced with highly contested and irreconcilable accounts of contemporary events from the Parties’ different factual witnesses, the Tribunal has found it necessary to rely heavily upon contemporary documentation. However, that too raised difficulties (as explained below); and the Tribunal has also, of necessity, relied upon the testimony of certain factual and expert witnesses whom the Tribunal found to be truthful and reliable.
5.17.
Burden and Standard of Proof: In this arbitration, as explained above, the applicable law is English law both as the substantive law (save for the Pharma NDA and CUTSA) and as the lex loci arbitri. The several allegations as to doctoring of evidence by all Parties in this arbitration are very serious. The legal burden of proof in each case rests, under English law, upon the Party making any allegation.
5.18.
As to the standard of proof under English law, it is clear that the seriousness of the allegation does not affect the rule that the burden remains the civil burden of the balance of probabilities and not the higher criminal standard of proof. This was forcefully expressed by Baroness Hale in In re B (Children)3, a case of alleged sexual abuse to a minor: "... I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the [Children] 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
5.19.
As to such inherent probabilities, in Sec of State v Rehman,4 Lord Hoffmann held: "... I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not."
5.20.
The Tribunal applies these rules on the burden and standard of proof in arriving at its several decisions below on the Tribunal’s list of principal issues set out in Part II of this Award.

B: The Jurisdictional Issues I:1, I:2 and I:3

5.21.
Issue I:1: Modern objects to E*HealthLine’s claim under the Modern NDA, which jurisdictional objection E*HealthLine rejects.
5.22.
As summarised in Part II above, Modern contends primarily that the Modern NDA was superseded some three months later by the Memorandum. Clause 18 of the Memorandum provided: "[REDACTED] ".5 Hence, so Modern submits, once the Memorandum was signed, neither the Modern NDA’s confidentiality or non-circumvention provisions survived; and, thus, these provisions could no longer be enforced against either E*HealthLine or Modern. Alternatively, if these obligations did survive the Memorandum, Modern contends that any alleged breach of these provisions falls within the scope of the Modern NDA’s arbitration clause (providing for LCIA arbitration) and not within the scope of the Memorandum’s Arbitration Agreement (providing for ICC arbitration).
5.23.
E*HealthLine contends first that, under English law, there is a strong presumption that claims by a party should be heard in one forum.6 That presumption has its origins in the dicta of Hoffmann LJ favouring "one-stop adjudication" in Harbour v Kansa.7 It is now firmly established (inter alia) in the cases cited by E*HealthLine: Fiona Trust v Privalov, USB v HSH Nordbank AG; C v D1; and Monde Petroleum v WA.8 As E*HealthLine itself recognises, however, this is only a presumption: "These decisions demonstrate that English law takes a commercial approach to construing arbitration agreements, starting from a presumption that the parties intended their disputes to be heard in one forum. Where there are successive contracts, with the parties’ obligations being subsumed within the latest contract, this presumption applies with particular force."9
5.24.
Next, E*HealthLine contends that the scope of the Memorandum’s Arbitration Agreement is "clearly wide enough to encompass all of E*HealthLine’s claims under [the Modern NDA]." It stresses the Arbitration Agreement’s broad phrase "all disputes... in connection with" the Memorandum. It also contends that the Memorandum’s Arbitration Agreement subsumed the Modern NDA’s arbitration clause, by virtue of the former’s entire agreement Clause 18.10 Hence, it concludes, this Tribunal has jurisdiction to decide its claim against Modern under the Modern NDA.
5.25.
Lastly, E*HealthLine contends that Modern’s submission that its substantive obligations have lapsed under the Modern NDA (by virtue of Clause 18 of the Memorandum) is not an objection to jurisdiction, but an argument as to waiver on the merits. E*HealthLine denies that it has waived its claim against Modern under the Modern NDA; and it also submits the subject matter of its claim relates to confidential information disclosed to Modern before the date of the Memorandum.
5.26.
The Tribunal’s Analysis: In the Tribunal’s view, Modern’s obligations under the Modern NDA survived the Memorandum. Modern accepts that its obligations under the Modern NDA existed until the Memorandum.11 Until that time, the only arbitral remedy available to E*HealthLine in regard to Modern’s obligations under the Modern NDA lay in the Modern NDA’s arbitration clause. Modern also accepts that the subject matter of the Modern NDA was not materially the same as the Memorandum, namely their respective "Business Purpose" and "Project" were different. In its Counter-Memorial, Modern pleaded:12 "Modern and Pharmaniaga’s joint venture had a business purpose distinctly different from the business purpose in the [Modern NDA] which essentially concerned the development, marketing and/or distribution of internet-based integrated healthcare services management software."
5.27.
The Tribunal agrees with this pleading. If the subject matters of these two agreements were different, however, it must follow that Clause 18 of the Memorandum is inapplicable: it only applies to supersede an earlier understanding or agreement "with respect to the subject matter specified herein." The Tribunal therefore rejects Modern’s primary case as to jurisdiction: its substantive obligations under the Modern NDA existed before the Memorandum and did not disappear with the signing of the Memorandum.
5.28.
The Tribunal does not accept E*HealthLine’s submission that the effect of Clause 18 of the Memorandum, whilst not superseding Modern’s substantive obligations under the NDA, nonetheless caused the arbitration clause in the Modern NDA to be superseded by the Memorandum’s Arbitration Agreement. In the Tribunal’s view, given these agreement’s different subject matters, Clause 18 cannot apply to any part of the Modern NDA, i.e. both its substantive obligations and arbitration clause survived the Memorandum. Even if it were possible (as E*HealthLine submits) to treat the two arbitration agreements as legally distinct from their different substantive obligations, the fact remains that an ICC arbitration clause is materially different from an LCIA arbitration clause: i.e. their subject matters are not to be treated as the same in applying Clause 18 of the Memorandum.
5.29.
In these circumstances, the Tribunal accepts Modern’s alternative submission. The Tribunal concludes that it has no jurisdiction to address E*HealthLine’s claim under the Modern NDA because that jurisdiction is exclusively reserved to an LCIA tribunal to be appointed under the extant arbitration clause in the Modern NDA, not this Tribunal appointed under the Memorandum’s Arbitration Agreement.
5.30.
The Tribunal has noted, of course, both the broad language of the Memorandum’s Arbitration Agreement, as also the legal presumption under English law for "one-stop shopping". However, that presumption is only a rebuttable presumption in construing arbitration clauses; and it must give way to the Parties’ express choice of words construed against their particular factual background, particularly in an ICC arbitration where the tribunal is expressly required to: "take account of the provisions of the contract" under Article 21(2) of the ICC Rules. In the Tribunal’s view, that presumption is here rebutted by the facts that the Modern NDA’s arbitration clause had an earlier and separate existence for some three months prior to the Memorandum; that it had a continuing existence thereafter (notwithstanding Clause 18 of the Memorandum); that the Modern NDA was a bilateral agreement between E*HealthLine and Modern distinct from the tripartite Memorandum between E*HealthLine, Modern and Pharmaniaga; and that these agreements’ respective subject matters (including their forms of institutional arbitration) were materially different. Lastly, as has long been recognised under English law and elsewhere, an arbitration agreement (like an exclusive jurisdiction clause) has two legal effects: it is both a contract of prorogation and a contract of derogation.13 Accordingly, there can be in this case no dual or overlapping jurisdiction; and, where (as the Tribunal has decided), an LCIA tribunal would have jurisdiction to decide E*HealthLine’s claim under the Modern NDA, it must necessarily follow that this Tribunal, under the Memorandum’s Arbitration Agreement, can have no such jurisdiction.
5.31.
The Tribunal’s Decision: For these reasons, the Tribunal decides this jurisdictional issue in favour of Modern and against E*HealthLine.
5.32.
Issue I:2: Pharmaniaga objects to E*HealthLine’s claim under the Pharma NDA, which jurisdictional objection E*HealthLine rejects.
5.33.
As summarised in Part II above, Pharmaniaga contends that the Singapore Courts have exclusive jurisdiction to decide any claim by E*HealthLine against Pharmaniaga under Clause 8 of the Pharma NDA, by reference to Singapore law. Pharmaniaga submits that these jurisdiction and applicable law clauses in the Pharma NDA were not superseded by the Memorandum’s different provisions for ICC arbitration and English law as the applicable law. It contends that Clause 18 of the Memorandum is inapplicable to these provisions.14
5.34.
E*HealthLine makes against Pharmaniaga’s jurisdictional objection substantially the same points as it does against Modern’s jurisdictional objections, albeit recognising that here these points related to the Pharma NDA’s jurisdiction clause, rather than the Modern NDA’s arbitration clause.15
5.35.
The Tribunal's Analysis and Decision: The Tribunal also recognises that Pharmaniaga’s jurisdictional objection relates to the Pharma NDA’s jurisdiction clause and provision for Singapore law, as compared to the LCIA arbitration clause in the Modern NDA. The Tribunal’s analysis is nonetheless materially the same, although, with the different applicable laws in the Pharma NDA and the Memorandum (Singapore and English), the case made by Pharmaniaga is perhaps even stronger than Modern’s case. Accordingly, for the same reasons, the Tribunal decides this jurisdictional issue in favour of Pharmaniaga and against E*HealthLine.
5.36.
Issue I:3: Both Modern and Pharmaniaga object to E*HealthLine’s claims under CUTSA, which jurisdictional objections E*HealthLine rejects.
5.37.
It is common ground that the Memorandum is expressly governed by English substantive law; that English law is the lex loci arbitri; and that CUTSA is a California statute. How then can CUTSA be relevant to the Parties’ dispute under the Memorandum’s Arbitration Agreement? The case advanced by E*HealthLine is, in its own words, "simple": it contends its CUTSA claim arises "in connection" with the Memorandum, within the broad language of the Memorandum’s Arbitration Agreement. Its pleading merits citation:16 "E*HealthLine provided the Respondents with confidential information during the course of the parties’ collaboration on the Joint Venture - including locating, vetting, and introducing Pharmaniaga to Modern — and in accordance with the terms of the MOC, the Respondents misused that information and proceeded without E*HealthLine. By the exact same conduct, the Respondents breached their confidentiality obligation under the MOC and breached CUTSA. There could be no closer connection."
5.38.
E*HealthLine invokes English conflict rules under Section 46(3) of the 1996 Act to invoke in turn the European Union’s Rome II Regulations, whereby (so it submits) its non-contractual breach of confidence claim is categorised as unfair competition. From this, E*HealthLine concludes that, by virtue of Articles 4 and 6 of Rome II, the applicable law, from which the Parties cannot derogate, is the law of California as the place where E*HealthLine suffered the damage caused by the Respondents’ wrongdoings. In the alternative, E*HealthLine contends that CUTSA applies as the mandatory law most closely connected with the Parties’ dispute. Pharmaniaga and Modern contest each of these submissions at some length;17 but it is unnecessary to set out their arguments here.
5.39.
The Tribunal’s Analysis: There is much to be admired in the innovative legal scholarship evident from E*HealthLine’s lengthy submissions. In the Tribunal’s view, however, these submissions fail at the outset. As recited above, Clause 17.1 of the Memorandum provides for the application of "the Laws of England & Wales without regard to the rules on conflict of laws". In other words, the Parties have not agreed upon the application to their dispute of any English conflict rules (including Rome II). The Parties did, however, agree to the application of the ICC Rules, in both the Memorandum’s Arbitration Agreement and the Terms of Reference. As recited above, Article 17(1) of the ICC Rules requires the Tribunal to apply the rules of law agreed by the Parties; and, where there is no such written agreement, to apply the rules of law "which it deems appropriate": i.e. by means of a "voie directe’ without reference to any conflict rules. That position is not altered by Section 46(3) of the 1996 Act because, as explained above, that is a non-mandatory provision only applicable if the parties have not agreed otherwise; and, in this case, the Parties have agreed otherwise.
5.40.
In the Tribunal’s view, given the significance of English law as the agreed applicable law and the first part of Article 17(1) of the ICC Rules, E*HealthLine’s noncontractual claims in this arbitration are sustainable under English substantive law only, to the exclusion of any other national laws. Even if the position were otherwise, the Tribunal would not, under the second part of Article 17(1) of the ICC Rules, apply the law of California, E*HealthLine’s home state. Nor would the Tribunal apply the laws of Saudi Arabia or Malaysia for similar reasons. There was manifestly a reason why the Parties agreed upon English law and an English arbitral seat: both were equally neutral as regards all three Parties. For this reason, if and to the extent necessary, the Tribunal would think it "appropriate" to apply English substantive law to all non-contractual claims made in this arbitration by E*HealthLine against both Modern and Pharmaniaga. It would not think it at all "appropriate" to apply the law of California, including CUTSA.
5.41.
It is necessary to add a coda to this analysis. First, there is something to be said for E*HealthLine’s complaint that the Respondent’s objection is not a true jurisdictional objection. In the Tribunal’s view, the objection is better categorised as an objection to the admissibility of E*HealthLine’s CUTSA Claim. That is, however, in this case a distinction without a difference. As an objection to admissibility, the Respondent’s case would lead to the same result: the Tribunal could not exercise its jurisdiction to decide the merits of the CUTSA Claim under California law for the same reasons. Second, E*HealthLine has cited, in terrorem, the general rule in Article 35 of the ICC Rules requiring the Tribunal to "make every effort to make sure that the Award is enforceable at law." In the Tribunal's view, it is (at best) far from established that the Tribunal’s decision not to apply CUTSA would lead to the non-enforceability of this Award in California; and it is far from clear that the California Courts would have or would exercise jurisdiction under CUTSA over Pharmaniaga and Modern. More relevantly, Article 35 of the ICC Rules is principally directed at the lex loci arbitri and not to multiple jurisdictions around the world.
5.42.
The Tribunal's Decision: Accordingly, for these reasons, the Tribunal decides the Respondents’ objections as to jurisdiction (including admissibility) in their favour and against E*HealthLine.

C: Issue II - The Rectification Claim

5.43.
E*HealthLine claims the rectification of Clause 11.1 of the Memorandum under English law, which claim both Modern and E*HealthLine deny on its merits. The issue is whether Clause 11.1 of the Memorandum should contain the word "after", such that the rectified clause should read: "The Parties shall not, during the continuance of the MOC study or after enter into any activities that are related to the construction of manufacturing facility to produce pharmaceutical or biochemical products within Saudi Arabia, United Arab Emirates, Bahrain, Kuwait, Oman, Qatar, Jordan. Egypt, Morocco, Algeria, Israel or Turkey and marketing of pharmaceutical or biological products produced by the abovesaid manufacturing facility without the prior unanimous consent of the other Parties."
5.44.
E*HealthLine seeks rectification on the basis that the word "after" was agreed by the Parties to be included and was wrongly removed by Pharmaniaga just prior to signature on 27 October 2011 without E*HealthLine’s knowledge. Pharmaniaga and Modern contend that the word "after" was later inserted in certain contemporary drafts and e-mails by E*HealthLine, improperly altering these documents in order to deceive the Respondents and the Tribunal.
5.45.
The alleged relevance of the additional word is that, according to E*HealthLine, it means that the non-competition clause extends beyond the duration of the Memorandum i.e. beyond the stipulated term of 30 days expiring on 26 November 2011. Pharmaniaga and Modern respond that it does not matter in any event, because if the word "after" was included, the provision would be void under English law as being in unreasonable restraint of trade due to the fact that it is indefinite in duration. The Respondents also rely on the non-binding nature of Clause 11.1, whether or not rectified. Finally, they argue that semantically the addition of the word "after" and the construction put on the phrase "MOC study" does not make grammatical sense, the word "study " being a noun and not a verb. On any view, however, a determination of the issue goes to credibility affecting, potentially, all three Parties.
5.46.
Forensic evidence was adduced by all three Parties to attest to who altered certain documents. However, before addressing the digital forensic evidence, it is necessary to consider the evolution of the various drafts of the Memorandum with particular reference to the ‘non-compete clause’, Article 11. Given the seriousness of the allegations made by all three Parties, the Tribunal will set out the sequence at some length below. It is a complicated chronology. For the avoidance of doubt, this chronology does not deal in full with the testimony of the Parties’ factual witnesses, to which the Tribunal attaches less weight. The Tribunal’s analysis is, of course, based on the contemporary documents, their stated source and other evidence, all of which have been adduced in this arbitration.
5.47.
The September Draft: [REDACTED]
5.48.
[REDACTED]
5.49.
The 11/18 October Draft: [REDACTED]
5.50.
[REDACTED]
5.51.
The 20 October Draft: [REDACTED]
5.52.
[REDACTED]
5.53.
[REDACTED]
5.54.
[REDACTED]
5.55.
[REDACTED]
5.56.
The 21 October Draft: [REDACTED]
5.57.
[REDACTED]
5.58.
[REDACTED]
5.59.
EHL Exhibit 60: [REDACTED]
5.60.
[REDACTED]
5.61.
[REDACTED]
5.62.
EHL Exhibit 61: [REDACTED]
5.63.
[REDACTED]

5.64.
Modern Exhibit 22: [REDACTED]
5.65.
[REDACTED]
5.66.
EHL Exhibit 62 and Modern Exhibit 23: [REDACTED]
5.67.
EHL Exhibit 63 and Pharmaniaga Exhibit 8: [REDACTED]
5.68.
The 24 October Draft: [REDACTED]
5.69.
EHL Exhibit 64 and Pharmaniaga Exhibit 9:43[REDACTED]
5.70.
[REDACTED]
5.71.
[REDACTED]
5.72.
The Signed Version. [REDACTED]
5.73.
E*HealthLine’s Submissions: In brief, as already summarized above, E*HealthLine claims rectification of Clause 11.1 of the Memorandum to add the word "after" following "MOC study" on the grounds of common mistake, alternatively unilateral mistake under English law. It relies on its documents as being authentic: namely, EHL Exhibits 61, 63 and 64, together with the conversations Dr Mekhamer had with Pharmaniaga relating to the addition of the word "after". [REDACTED]
5.74.
If Pharmaniaga and Modern were not labouring under a common mistake with E*HealthLine, E*HealthLine contends, alternatively, that both Pharmaniaga and Modern must have been aware that E*HealthLine was mistaken about the terms of the Memorandum because: (i) in the last agreed draft, the word "after" had been included in Clause 11.1, but this word was then omitted from the version used at the signing ceremony in Germany; and (ii) E*HealthLine had not been given an opportunity to check the execution copy used at the signing ceremony.
5.75.
The Respondents’ Submissions: In brief, as also summarised above, Pharmaniaga disputes any discussion or agreement relating to the insertion of the word "after" in Clause 11.1 of the Memorandum and relies upon its own contemporary documents and the evidence of its witnesses summarised above. Modern likewise disputes any knowledge of or agreement with any intention to insert the word "after" in Clause 11.1. As such, the Respondents both dispute any common agreement or intention to insert the word "after" in Clause 11.1 or for the duration of the non-compete clause to be indefinite.
5.76.
Further, the Respondents point to the absence of any evidence to support the ingredients required for unilateral mistake, namely an erroneous belief on the part of E*HealthLine that the Memorandum contained the word "after"; that either Party was aware of such omission which was due to a mistake by E*HealthLine and did not draw E*HealthLine’s attention to the mistake which was calculated to benefit Pharmaniaga and/or Modern. They contend that, even if the word "after" was inserted, the meaning of Clause 11 would remain unchanged and that "study" is clearly intended as a verb. They submit that "MOC study" is different from "feasibility study" referred to elsewhere in the Memorandum and note that the original wording emanated from the MOU drafted by Modern. They also point to the inconsistency arising from the absence of any additional word "after" in Clause 11.2. They point further to the grammatical inconsistency of the use of the word "this" before "MOC". They also contend that the claim for rectification was made far too late and that, as a discretionary remedy in equity, it should be refused on grounds of delay.
5.77.
Alternatively, both Modern and Pharmaniaga contend that Clause 11.1 was not binding even when the Memorandum remained in effect (a period ending on 26 November 2011). Finally, the Respondents submit that if the word had been inserted and was intended to have the meaning attributed to it by E*HealthLine, then it would be void as being in restraint of trade under English law as it would not be reasonable to impose such an indefinite non-compete clause.
5.78.
The Expert Forensic Evidence: Each Party produced its own independent forensic expert witness, Mr Libby for E*HealthLine; Mr Mullins for Modern; and Mr Surrey for Pharmaniaga. Each produced expert reports; and the three expert witnesses also produced a joint report. Each gave oral testimony to the Tribunal at the Hearing.
5.79.
For their forensic exercise, there were six particular documents; namely: EHL Exhibits 61, 63, and 64; Modern Exhibit 22; and Pharmaniaga Exhibits 8 and 9. One of the key issues between the forensic expert witnesses was the scope of the investigation required to provide a reliable expert opinion.
5.80.
For E*HealthLine, Mr Libby testified that the acquisition of metadata is subject to manipulation; and that such manipulation can be guarded against by provision of information at the "whole disk" level. To this end, Mr Libby explained that he was given access to Ms Hoyer’s two desktop computers at E*HealthLine’s offices in Sacramento, California, by Dr Mekhamer, but only one computer had relevant material from which he was able to extract the relevant materials. He concluded that they were authentic images of the electronic originals; and that the electronic originals had not been altered or tampered in any way.49 He did not seek, nor was he given, any other data sources or computers by E*HealthLine; and he never met Ms Hoyer. Nor did he recall seeing whether any of the e-mail messages and attachments had been forwarded elsewhere within E*HealthLine’s offices.50
5.81.
Mr Libby explained that, in contrast, he did not have any access to Modern’s computers as its server was no longer available; and it had no back-up other than the e-mails of the CEO on a USB drive, and the CEO’s laptop was no longer available. Accordingly, the only source he could use was the CEO’s USB drive. Mr Libby also added that as he did not personally image the materials from the computers and/or associated databases of Pharmaniaga, he likewise could not guarantee their content.
5.82.
For Pharmaniaga, Mr Surrey accepted that Mr Libby’s "whole disc" method is useful for maintaining a chain of custody, but he commented that it did not assist in determining the events that took place before the image was collected.
5.83.
Another difference between the three experts was that Mr Libby relied upon Universal Coordinated Time ("UTC"). It is an international basis for civil time and can be considered equivalent to Greenwich Mean Time ("GMT"). Mr Surrey, on the other hand, corrected timings to local times which is the time at which Microsoft Word actually captures data and that way, as Mr Libby accepted, there was avoided in the metadata, at least for EHL Exhibit 64, the timing discrepancies which seemed to indicate that a document was saved after it was sent. Mr Libby did consider that Microsoft might also capture data in UTC.
5.84.
Mr Libby accepted that Modern Exhibit 22 and EHL Exhibit 61 were different emails; and under cross-examination he accepted that he had failed to rebut some of Mr Mullins’ conclusions such that he had only seen one e-mail from E*HealthLine to [REDACTED] attaching the draft MOC.51
5.85.
Mr Surrey testified that, in relation to EHL Exhibits 63 and 64, the e-mails from Ms Hoyer to Pharmaniaga and the reply dated respectively 21 and 24 October 2011, he was able, in his words: "to identify material that... quite strongly indicates that the messages in question were altered by E*HealthLine following their receipt by E*HealthLine and after they have been transmitted by Pharmaniaga... The metadata that I have examined paints a fairly consistent and fairly telling picture of the document having been altered by E*HealthLine after it was received. I can come to no other conclusion about the course of events...."52
5.86.
These were matters upon which Mr Libby did not express an opinion. Mr Surrey relied upon the metadata which enabled him to reconstruct what had happened based on local Malaysian timings (which is eight hours ahead of UTC). He referred to Appendix A to his Second Report which tabulated the various timings and was able to establish that the version of EHL Exhibit 64 from Pharmaniaga was sent and received almost simultaneously at 21.57 pm Malaysian time or 13.57 UTC or 01.57am Californian time on 24 October 2011. Relying on the materials extracted by Mr Libby, he then concluded that EHL Exhibit 64 was altered by E*HealthLine to add the word "after" the following day, 25 October, at 01.58 UTC or 18.58 California time.53
5.87.
Mr Surrey sought corroboration in images of the master database files from Pharmaniaga’s email systems, where he found 13 versions of the message as it was disseminated within Pharmaniaga which were consistent with Pharmaniaga’s version of EHL Exhibit 64 (i.e. Pharmaniaga 9).54
5.88.
As to EHL Exhibit 63 (i.e. Pharmaniaga Exhibit 8), Mr Surrey concluded that, even though the metadata did not admit of any easy explanation, it seemed likely that this document was similarly altered by E*HealthLine to make it consistent with Exhibit 64. He did not reach any conclusion on Exhibit 61.55
5.89.
For Modern, Mr Mullins explained that, in considering Modern Exhibit 22, he was only able to look at the limited information still retained by Modern, namely the backup of the e-mails taken from the server, the hard drive where the emails were located, e-mails from [REDACTED] (the latter two being separate both physically and geographically). He testified that Modern Exhibit 22 could not be directly compared to EHL Exhibit 61 as they were sent between different people at different times. He concluded that the internal metadata indicated that EHL Exhibit 61 was sent by Ms Hoyer to [REDACTED] at 18.00 UTC on 21 October 2011 which was within 10 minutes of [REDACTED] sending his e-mail, Modern Exhibit 22, to Modern and [REDACTED]
5.90.
Mr Mullins also drew attention to the zip file attached to EHL Exhibit 61, "Tripartite MOC - PB MIIHG EHEALTHLINE.zip" containing the Word document, "Tripartite MOC - PB MIIHG EHEALTHLINE PB Legal dated 211011 - FINAL.doc". He explained that the hash value for the EHL attachment was not the exact one provided by [REDACTED] to Modern and [REDACTED], which therefore indicated that the author of the document was E*HealthLine.
5.91.
In the Tribunal’s view, all three expert witnesses were experienced and knowledgeable specialists in their field; and, at the Hearing, all three were doing their best to assist the Tribunal in a complicated and difficult forensic exercise. However, where their expert opinions differ, the Tribunal prefers the testimony of Mr Surrey and Mr Mullins. It was at least unfortunate that Mr Libby’s original instructions limited the scope of his written testimony; and it was particularly unfortunate that Ms Hoyer’s assistance was not made available to Mr Libby in Sacramento; and, more significantly, that this person was not called as a factual witness by E*HealthLine during the arbitration. At the Hearing, Mr Libby accepted that his particular methodology did not explain timing discrepancies and also that he had not rebutted or addressed significant conclusions made by Mr Mullins and Mr Surrey.
5.92.
The Legal Test for Rectification: The legal test for rectification under English law is not materially at issue between the Parties. The burden is on the party seeking rectification; and it needs to be proved by clear and convincing evidence, on the balance of probabilities.
5.93.
In the case of common mistake a party seeking rectification, the test is usefully set out in Daventry District Council v Daventry & District Housing.56 Rectification for common mistake will be granted where: (a) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (b) which existed at the time of execution of the instrument sought to be rectified; (c) such common continuing intention to be established objectively, that is to say by reference to what an objective observer would have thought the intentions of the parties to be; and (d) by mistake the instrument did not reflect that common intention.
5.94.
The test for unilateral mistake, as set out in Thomas Bates v Wyndham57 is that rectification may be granted where: (a) Party A erroneously believed the contract to contain a term but that term was omitted; (b) Party B was aware that the term was omitted due to a mistake; (c) Party B omitted to draw the mistake to A’s attention; and (d) The mistake is calculated to benefit Party B so that it would be inequitable to allow Party B to resist rectification.
5.95.
The Tribunal’s Analysis: The Tribunal first addresses the forensic expert evidence adduced by the three Parties. Such evidence more than suffices for the decisions required by the Tribunal in this Award. The Tribunal therefore re-confirms its decision not to appoint its own forensic expert under Article 25(4) of the ICC Rules, as requested by E*HealthLine before the Hearing and, again, after the Hearing by its letter dated 7 June 2016 to the Tribunal.58 The Tribunal acknowledges with thanks the helpful assistance provided by all three of the Parties’ forensic experts, to which a fourth forensic expert and still further researches could have added nothing material.
5.96.
Having considered the forensic evidence in full, the Tribunal accepts the evidence of Mr Surrey and Mr Mullins that EHL Exhibit 64 was not authentic and that, accordingly, the inevitable conclusion is that EHL Exhibit 63 was also not authentic. It also accepts Mr Mullins’ conclusions as to the authenticity of Modern Exhibit 22 and the lack of authenticity of EHL Exhibit 61.
5.97.
Mr Libby had relied exclusively on data given to him from E*HealthLine without seeking to corroborate the information from other data sources at E*HealthLine. It is also clear that there were gaps in Mr Libby’s limited analysis, partly based on his original instructions, that were exposed in cross-examination and made his conclusions significantly less reliable.
5.98.
However, even without the expert evidence, the Tribunal does not accept Dr Mekhamer’s evidence as to whether or when the word "after" was added to the MOC.
5.99.
[REDACTED]
5.100.
[REDACTED]
5.101.
[REDACTED]
5.102.
[REDACTED]
5.103.
[REDACTED]
5.104.
[REDACTED]
5.105.
[REDACTED]
5.106.
[REDACTED]
5.107.
Decision: For all these reasons, applying to the evidence the legal burden and standard of proof set out above, the Tribunal concludes that the Parties did not agree or intend to include the word "after" in Clause 11.1 of the Memorandum. The Tribunal further concludes that E*HealthLine has not established, on the evidence, any unilateral erroneous mistake on its part that "after" had been included in the MOC. On the contrary, E*HealthLine knew all along that this word had never been included in any draft exchanged between the three Parries. There was therefore no common or unilateral mistake to support its claim for rectification under English law.
5.108.
The Tribunal also finds, on the evidence, that E*HealthLine inserted the word "after" in EHL Exhibits 61, 63 and 64 subsequent to these documents being sent to their respective recipients. The logical conclusion is that all three documents were probably tampered with by one or more unknown persons at E*HealthLine to make them appear consistent with each other. The Tribunal finds that these documents are not proven to be authentic. The corollary is that Modern Exhibit 22 and Pharmaniaga Exhibits 8 and 9 are probably authentic documents and not proven to be false. Accordingly, it is clear that the falsified EHL Exhibits 61, 63 and 64 have been deliberately presented by E*HealthLine to the Tribunal as genuine in a misplaced attempt to found its claim for rectification.
5.109.
The consequence of all this is that E*HealthLine’s claim for rectification of the Memorandum is dismissed by the Tribunal. In the circumstances, it is unnecessary for the Tribunal to consider the issues of delay and restraint of trade raised by the Respondents. The issue of the legally binding nature of the (unrectified) Memorandum is addressed separately below.

D: Issue III:1 - The "Non-Compete" Claim under the Memorandum

5.110.
Issue III:1: The issue is whether Modern and/or Pharmaniaga abandoned the tripartite project with E*HealthLine and entered into a bilateral joint venture without E*HealthLine, in breach of a legally binding contractual obligation in Clause 11.1 of the Memorandum regarding ‘exclusivity’ and ‘non-competition’. E*HealthLine contends that Clause 11.1 (whether rectified or unrectified) imposes a contractual obligation upon Modern and Pharmaniaga under English law; and that both Respondents breached this obligation. Modern and Pharmaniaga each deny that that is so.
5.111.
The relevant terms of the Memorandum are cited in Part II above in full; and it is unnecessary to repeat them here.
5.112.
E*HealthLine’s Submissions: In brief, E*HealthLine asserts that, notwithstanding the wording of Clauses 2 and 16 of the Memorandum, Clause 11.1 is legally binding under English law. First, it is said that a "contextual reading" of the Memorandum and the "commercially reasonable interpretation" confirms that Clause 11.1 is binding. This argument has several steps:62
5.113.
E*HealthLine submits that certain provisions of the Memorandum were undoubtedly non-binding. These included Clause 4 (the agreement to negotiate the terms and conditions that would form the basis of the Definitive Agreement) and Clause 5.1 (containing the undertakings to provide business plans, projections and equity). English law has recognised, so E*HealthLine submits, that an agreement to negotiate can in certain circumstances be binding; and the purpose of Clauses 2.1 and 16 was therefore to clarify that there is no such binding obligation in these limited respects.
5.114.
Next, Clause 2.1 is, by the terms of its last sentence, intended to protect any one of the Parties from a decision not to proceed with the project at all. It is not intended to shield one of the Parties from a breach of Clause 8 or Clause 11. A plain language interpretation of the latter demonstrates that it is an exclusivity and non-competition provision, which prohibits any party to the Memorandum from proceeding with any project without the unanimous consent of the other Parties.
5.115.
Next, the binding nature of Clause 11.1 is reinforced by Clause 11.2, which provides that, [REDACTED] Clause 11.1 could only have that preclusory effect, so E*HealthLine submits, if it was intended to be a contractually binding provision.63
5.116.
Next, all of the other provisions of the MOU concern contractual mechanics. These provisions would be pointless if they were non-binding.
5.117.
Next, Clause 9 supports the legally binding nature of the restrictive covenants contained in Clause 11. Because, by its terms, Clause 9 does not apply to Clause 8, E*HealthLine submits that it must follow that, for Clause 9 to have any effect at all, "all of the other terms of the MOC" are intended to be binding64.
5.118.
Second, it is said by E*HealthLine that the "commercial background" of the Memorandum confirms that Clause 11.1 is legally binding on the Parties. This is because Modern and Pharmaniaga’s interpretation of Clause 11.1 would deprive Clause 11.1 of any effect. It would also make no commercial sense for E*HealthLine to have replaced its earlier binding NDAs with a document that was not legally binding. A better interpretation is that E*HealthLine secured "equal protection" under the Memorandum by agreeing to similarly binding confidentiality, non-compete and non-circumvention agreements65.
5.119.
In further support of this approach, E*HealthLine submits that the signing ceremony in Germany, the public announcement of the Memorandum and Pharmaniaga’s listing of the Memorandum as a material contract in its shareholders’ circular dated 13 March 2012 all indicate that the Memorandum was intended to be legally binding on the Parties.66
5.120.
The Respondents' Submissions: In brief, Modern and Pharmaniaga’s position, so they contend, is simple. It is that Clauses 2 and 16 of the Memorandum are clear on their face; and that, with the exception of Clause 8, the other provisions of the Memorandum are not contractually binding and cannot create any legal obligations between the Parties.67 Although Clause 11.1 may have been phrased in mandatory language, they submit that it was not intended to give rise, and was expressly stated as not giving rise, to any legally binding obligations between the Parties.68
5.121.
Pharmaniaga also relies upon other provisions of the Memorandum to emphasise the preliminary and non-binding nature of all but Clause 8 of the Memorandum. These include the exploratory nature of the partnership, as noted by Recital D, the limited term of the Memorandum (Clause 3.1), the provision that the Parties would negotiate a "Definitive Agreement" in due course (Clause 4) and the understanding that a "Feasibility Study" would need to be conducted to analyse the merits and prospects of the Project (Clause 5.3).69
5.122.
In answer to E*HealthLine’s contention that there would have been no point in the Memorandum were it not binding, Pharmaniaga points to the fact that, on any view, the Memorandum contained binding confidentiality obligations (Clause 8).70
5.123.
E*HealthLine’s argument that Clause 2 of the Memorandum offered protection from claims if any Party decided not to move forward with the Project (but not if that Party decided to move forward with a similar project) is met, according to Pharmaniaga, with the objection that this simply ignores the plain wording of Clause 2 (as well as of Clause 16). Pharmaniaga asserts that the suggestion from E*HealthLine that almost all of the provisions of the Memorandum would be pointless if they were not binding is to read too much into "simple boilerplate language".71
5.124.
Both Modern and Pharmaniaga answer E*HealthLine’s argument as to the significance of the commercial background with a reference to [REDACTED] Pharmaniaga also challenges E*HealthLine’s reliance upon Pharmaniaga’s subsequent actions as being both irrelevant as a matter of English law (as alleged post-contractual conduct) and also of no factual significance.73
5.125.
The Tribunal’s Analysis: The Tribunal’s obligation is to interpret the words of the agreement made between the Parties. The question is not what one or other of the Parties subjectively meant or understood by the words, but rather what a reasonable person in the position of the Parties would have understood the words to mean.74 The Tribunal is not required to approach the task of construction with too much concentration on individual words to the neglect of the agreement as a whole.75 The approach to construction should be "neither uncompromisingly literal nor unswervingly purposive". The words used must be understood to bear the meaning which they would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of their agreement.76 Where there are two possible constructions of an agreement, a tribunal is entitled to prefer a construction which is consistent with business common sense and to reject the other, particularly if it leads to an absurd result.77 However, where the parties have used clear and unambiguous language, the Tribunal must apply that construction.78 Under English law, this approach to construction applies generally to all words exchanged between commercial parties, whether in a legally binding contract or a non-legally binding agreement or other document. Thus, it was applied by the House of Lords to a letter from one commercial party to another in Woodhouse v Nigerian Produce.79
5.126.
The Tribunal considers that the wording of Clause 2.1 and Clause 16 of the Memorandum could not be clearer. They state in terms that, with the exception of the confidentiality provisions, the Memorandum is not binding. Clause 2.1 is emphatic that: [REDACTED] Clause 16 is equally unambiguous, that, with the exception of Clause 8, [REDACTED]. If it was the Parties’ intention to extend the binding nature of the Memorandum to Clause 11.1, then it would have been a simple matter for them to include an express reference to that provision alongside the reference to Clause 8 in both Clause 2 and Clause 16. Significantly, the Parties did not do so.
5.127.
E*HealthLine’s argument that a "contextual reading" of the Memorandum shows Clause 11.1 to be legally binding does not stand scrutiny. Not only does it require the Tribunal to ignore the clear wording of Clause 2.1 and Clause 16, it would also require the Tribunal to cherry-pick other provisions and to declare some to be binding and others not to be so. The suggestion that Clauses 4 and 5.1 should be treated as non-binding in context, because English courts have on occasion interpreted some agreements to negotiate as legally binding, whilst declaring Clause 11.1 to be binding in the face of express wording to the contrary, is perversely to rewrite the Memorandum. That is not something that this Tribunal can legitimately do.
5.128.
Nor, in the Tribunal’s view, can the saving words at the beginning of Clause 11.2 justify a conclusion that Clause 11.1 was intended to be legally binding. The subsequent provision is to be read as clarifying that the Memorandum was not intended to inhibit the Parties from entering into agreements with other parties in Saudi Arabia during the course of the Memorandum.
5.129.
The provisions relating to contractual mechanics have a separate nature. They are required in order to give effect to Clause 8 and to those other provisions that are expressed to survive the expiration or termination of the Memorandum under Clause 15, namely Clauses 9 and 14 (both of which relate to the enforceability of Clause 8). Provisions such as the Governing Law Clause 17, the Entire Agreement Clause 18 and the Language Clause 19 are "binding" in so far as any enforcement of the obligations in Clause 8 are dependent upon them. They cannot confer binding status upon other substantive provisions of the Memorandum, such as Clause 11.1.
5.130.
Whilst Clause 9 of the Memorandum may be worded in a somewhat cumbersome fashion, it also cannot by itself confer binding status upon other provisions of the MOU. Moreover the provision extends to limit any tortious claims. Rather than create a binding obligation under Clause 11.1 and a liability for damages for breach of that provision, it merely emphasises that a breach of Clause 8 can attract a liability for any loss whatsoever, including indirect losses under Clause 8.6.
5.131.
E*HealthLine’s appeal to the "commercial background" to the Memorandum does not provide the answer that it seeks. Commercial common sense "should not be invoked to undervalue the importance of the language of the provision" which is to be construed.80 Nothing in the factual matrix justifies distorting the unambiguous wording of Clauses 2.1 and 16 to give life to a still-born Clause 11.1. Whatever may have been the position regarding the Parties’ earlier agreements, the evidential record shows that the Parties entered into a new form of agreement with the Memorandum. The Tribunal is not satisfied that the evidential record supports a conclusion that the Parties (including E*HealthLine) must be taken as having intended to adopt a position no worse than that which prevailed under the two NDAs. Rather, the contemporary evidence of [REDACTED] tends to show that the Parties envisaged the Memorandum as essentially a non-binding agreement.
5.132.
E*HealthLine’s reliance on Pharmaniaga’s actions after the signing of the Memorandum on 27 October 2011 is not, as a matter of English law, relevant as an aid in its construction: such post-contractual conduct is immaterial (albeit in contrast to certain other common law countries).81 Even if that were not the case, however, the Tribunal does not consider that any of the three matters relied upon by E*HealthLine is sufficient to justify a conclusion that the Parties intended the Memorandum as a whole or Clause 11.1 in particular to be legally binding.
5.133.
[REDACTED]
5.134.
Decision: For these reasons, the Tribunal decides that Clause 11.1 of the Memorandum was not legally binding upon the Parties under its applicable law, English law. It follows that E*HealthLine’s claim under the Memorandum in regard to a contractual non-compete obligation under the Memorandum cannot succeed; and it is dismissed by the Tribunal. In these circumstances, it is unnecessary for the Tribunal to consider other defences raised by the Respondents, in particular as to timing, causation and loss given that the relevant provisions of the Memorandum had expired by 26 November 2011.

E: Issue III:2 - The "Confidential Information" Claim under the Memorandum

5.135.
The issue is whether Modern and/or Pharmaniaga misused "Confidential Information" received from E*HealthLine, in breach of a legal obligation as to confidentiality in Clause 8 of the Memorandum. E*HealthLine contends that such Confidential Information was disclosed to Modern and Pharmaniaga and that they both misused it. Modern and Pharmaniaga each deny these allegations.
5.136.
English substantive law may provide protection for confidential information on both a contractual and an equitable basis. A duty of confidence will be imposed whenever a person receives information it knows or ought to have known is fairly and reasonably to be regarded as confidential.83 Where the parties have specified the information to be treated as confidential and/or the extent and duration of the obligations in respect of it, a court or tribunal will not ordinarily superimpose additional or more extensive equitable obligations.84 Wider equitable duties of confidence may arise where the contractual obligations are not clearly prescribed or governed by contractual terms and the use of certain information would "plainly excite and offend a reasonable man’s conscience". That is not this case.
5.137.
The terms of the Memorandum in relation to confidential information are broad, clear and well defined: the relevant wording of Clause 8 is set out in Part II above. The equitable principles can however provide a useful pragmatic guide. To attract protection: "... it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document... which is the result of work done by the maker on materials which may be available for the use of anybody - what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process".85 It is necessary to look at the constituent parts and determine whether the information has a secret or confidential nature by reason of the work that has been done on it. The basic attribute which must be shown to attach to information for it to be treated as confidential is inaccessibility: information cannot be treated as confidential if it is common knowledge or generally accessible and in the public domain. However, a special collation and presentation of information, the individual components of which are not of themselves or individually confidential, may have the quality of confidence; a customer list may be composed of publicly available names but the list itself can be confidential.86
5.138.
Clause 8: Turning to the Memorandum, a preliminary question is whether there can be any breach of Clause 8.1(b) of the Memorandum in circumstances where the "Confidential Information" was disclosed by E*HealthLine to both Modern and Pharmaniaga. In this case, there is no disclosure to a "third party" as they are both Receiving Parties. Also, the question arises whether, even if the Confidential Information were given only to one of Modern and Pharmaniaga, disclosure by one of them to the other would constitute disclosure to a "third party". It may not matter, as Clause 8.1(a) would catch the use of any Confidential Information for the purposes of a bilateral joint venture that excluded E*HealthLine as being unrelated to the "Project" and thus prohibited under Clause 8.1(a) of the Memorandum. For present purposes, therefore, the Tribunal sets these preliminary questions aside, in favour of the case advanced by E*HealthLine.
5.139.
Categories of "Confidential Information": It is necessary to list the categories of "Confidential Information" said by E*HealthLine to have been disclosed by it to one or other of the Respondents and to consider, in respect of each category, (a) whether the information satisfies the definition of "Confidential Information" in the Memorandum; and (b) if it does, whether the obligations under Clause 8 do not apply because the information is otherwise exempt by operation of Clause 8.3. The following numbered categories are summarised from E*HealthLine’s pre-hearing written submissions (the "Claimant’s Skeleton Argument"), forming part of its opening submissions at the Hearing:
5.140.
[REDACTED]
5.141.
[REDACTED]
5.142.
It was for E*HealthLine to prove its case on this first category. In the Tribunal’s view, E*HealthLine has not done so.
5.143.
[REDACTED]
5.144.
[REDACTED]
5.145.
[REDACTED]
5.146.
It was for E*HealthLine to prove its case on this second category. In the Tribunal’s view, E*HealthLine has not done so.
5.147.
[REDACTED]
5.148.
It was for E*HealthLine to prove its case on this third category. In the Tribunal’s view, E*HealthLine has not done so.
5.149.
[REDACTED]
5.150.
In the Tribunal’s view, E*HealthLine did not prove its case on this fourth category.
5.151.
[REDACTED]
5.152.
It was for E*HealthLine to prove its case on this fifth category. In the Tribunal’s view, E*HealthLine has not done so.
5.153.
[REDACTED]
5.154.
The information does not therefore qualify for protection under Clause 8 of the Memorandum or English law. It was for E*HealthLine to prove its case on this sixth category. In the Tribunal’s view, E*HealthLine has not done so.
5.155.
[REDACTED]
5.156.
It was for E*HealthLine to prove its case on this seventh category. In the Tribunal’s view, E*HealthLine has not done so.
5.157.
[REDACTED]
5.158.
[REDACTED]
5.159.
[REDACTED]
5.160.
It was for E*HealthLine to prove its case on this eighth category. In the Tribunal’s view, it has not done so.
5.161.
[REDACTED]
5.162.
[REDACTED]
5.163.
[REDACTED]
5.164.
[REDACTED]
5.165.
It was for E*HealthLine to prove its case on this ninth category. In the Tribunal’s view, it has not done so.
5.166.
Decision: For all these reasons, the Tribunal concludes that E*HealthLine has not established its claims against Modern or Pharmaniaga on Confidential Information under Clause 8 of the Memorandum; and both such claims are therefore dismissed.

F: Issue IV - Contractual Claims under the NDAs

5.167.
E*HealthLine claims that Modern and Pharmaniaga breached their respective confidentiality obligations under the Modern and Pharma NDA, denied by each of Modern and Pharmaniaga.
5.168.
In the light of the Tribunal’s decisions under Issues I.1 and I.2 above, as regards the objections made by Modern and Pharmaniaga, it is inappropriate and unnecessary for the Tribunal to address these claims on the merits. In these circumstances, these claims are dismissed by the Tribunal.

G: Issue V - Other Contractual Claims

5.169.
E*HealthLine claims that Modern and Pharmaniaga breached their respective contractual obligations under other agreements, the Alleged Agreement of March 2011, the Alleged Agreements of June, October, November 2011 and January 2012, their duty of good faith and fair dealing, the ‘LOI’ and the Alleged Agreement of April 2012. It is convenient to address each of these claims in turn.
5.170.
Alleged Agreement of March 2011: [REDACTED]
5.171.
[REDACTED]
5.172.
In the Tribunal’s view, E*HealthLine’s case fails. [REDACTED] For these reasons, the Tribunal dismisses this claim.
5.173.
Alleged Agreement of June 2011: [REDACTED]
5.174.
[REDACTED]
5.175.
In the Tribunal’s view, E*HealthLine’s case fails. [REDACTED] For these reasons, the Tribunal dismisses this claim.
5.176.
Alleged Agreement of October 2011: [REDACTED]
5.177.
[REDACTED]
5.178.
In the Tribunal’s view, E*HealthLine’s case fails for reasons similar to its case on the Alleged Agreement of June 2011. [REDACTED] For these reasons, the Tribunal dismisses this claim.
5.179.
Alleged Agreements of November 2011: [REDACTED]
5.180.
[REDACTED]
5.181.
[REDACTED]
5.182.
In the Tribunal’s view, Pharmaniaga’s case on Clause 18 of the Memorandum is decisive in its favour. [REDACTED] For these reasons, the Tribunal dismisses this claim.
5.183.
Alleged Agreements of January 2012: [REDACTED]
5.184.
[REDACTED]
5.185.
In the Tribunal’s view, E*HealthLine’s case fails. [REDACTED] For these reasons, the Tribunal dismisses this claim.
5.186.
'LOI': [REDACTED]
5.187.
[REDACTED]
5.188.
In the Tribunal’s view, E*HealthLine’s case fails. [REDACTED] For all these reasons, the Tribunal dismisses these claims under the ‘LOI’.
5.189.
Alleged Agreement of April 2012: [REDACTED]
5.190.
[REDACTED]
5.191.
In the Tribunal’s view, E*HealthLine’s case fails. [REDACTED] For these reasons, the Tribunal dismisses these claims.
5.192.
Duty of Good Faith and Fair Dealing: E*HealthLine contends that the Respondents violated a general (contractual) covenant of good faith and fair dealing to be implied, as a matter of English law, into the Memorandum and their several alleged agreements, causing actual loss to E*HealthLine. These violations are alleged to comprise: (a) repeated misrepresentations; and (b) planning and carrying out an unlawful conspiracy to gain E*HealthLine’s trust.107
5.193.
Modern denies any contractual duty of good faith and fair dealing towards E*HealthLine, as unwarranted as a matter of English law under the Memorandum and other agreements alleged by E*HealthLine - none being long-term relationships (such as was considered in Yam Seng v ITC).108 Further, in any event, Modern denies any breach of such an alleged duty.109 Pharmaniaga likewise contends that there was no express or implied contractual duty of good faith and fair dealing in the Memorandum or otherwise; and that, in any event, there was no breach by Pharmaniaga of such a duty.110
5.194.
The Tribunal does not accept that the Memorandum (or any other agreement alleged by E*HealthLine) contained a contractual duty of good faith and fair dealing. There is no general doctrine of good faith for commercial contracts governed by English law; and, as the Court of Appeal held in Mid-Essex Hospital Services v Compass Group:111 "If the parties wish to impose such a duty, they must do so expressly." There may be exceptions for a long term special relationship between certain parties. However, the Memorandum was essentially a thirty-day non-binding agreement, between three commercial parties with an entire agreement provision (Clause 16). Such a general duty of good faith could have been expressed without difficulty if the Parties had wished to impose it upon themselves; and its absence in the Memorandum or elsewhere is therefore highly significant. E*HealthLine’s case based on its other alleged agreements is equally hopeless. Moreover, given also the decisions made by the Tribunal in this Award, the Tribunal does not find that the Respondents were in breach of such a general duty of good faith towards E*HealthLine, even if it had been agreed by them. For these reasons, the Tribunal dismisses these claims.

H: Issue VI - Non-Contractual Claims

5.195.
E*HealthLine claims that Modern and Pharmaniaga are liable for unjust enrichment, negligence, deceit, breach of fiduciary duty and unlawful conspiracy, denied by each of Modern and Pharmaniaga. It is convenient to address each of these claims in turn.
5.196.
Unjust Enrichment: E*HealthLine contends that the Respondents were unjustly enriched in that each obtained the benefit of confidential information, services and preparatory work provided by E*HealthLine under the NDAs and Memorandum, without having paid for E*HealthLine’s services. Under English law, so E*HealthLine submits, each Respondent was thereby guilty of unjust enrichment, causing E*HealthLine to suffer actual loss and to be entitled to restitution in the form of compensation.112
5.197.
Modern contends that it was not enriched, unjustly or otherwise: the bilateral joint venture between Modern and Pharmaniaga did not use any of E*HealthLine’s alleged confidential information; Modern has not been enriched by that bilateral joint venture (to the contrary, it suffered irrecoverable expenses); and, in any event, there was no injustice because E*HealthLine contributed nothing of value to that bilateral joint venture.113 Pharmaniaga also contends that it was not enriched at the expense of E*HealthLine; and, in any event, that there was no unjust enrichment as E*HealthLine alleges.114
5.198.
In the Tribunal’s view, given its decisions reached earlier in this Award, there was no unjust enrichment of either Modern or Pharmaniaga to the detriment of E*HealthLine. There was no violation by either of them of the Memorandum or other agreements (as alleged by E*HealthLine or otherwise); and there is no case that they misused E*HealthLine’s confidential information or work-product for their bilateral joint venture. In any event, that bilateral venture (now lapsed) brought neither of them any material benefit. For these reasons, the Tribunal dismisses this claim.
5.199.
Negligence: E*HealthLine contends that the Respondents owed a duty of care to E*HealthLine; that the Respondents negligently misled E*HealthLine into believing that the two had a continuing intention to form a joint venture with E*HealthLine when they no longer held that intention; that E*HealthLine reasonably believed the Respondents’ statements to be true, and that it therefore continued to work on the proposed joint venture, thereby sustaining actual loss.115
5.200.
Modern denies that it owed a duty of care to E*HealthLine and, in any event, that it ever misled E*HealthLine about its project with E*HealthLine and Pharmaniaga.116 Pharmaniaga contends likewise that it owed no duty of care to E*HealthLine, that it did not negligently mislead E*HealthLine; and, in event, that its alleged negligence did not cause any loss to E*HealthLine or any recoverable loss by virtue of the limitation of liability in Clause 9 of the Memorandum.117
5.201.
As regards Modern, the Tribunal accepts its submission that it never, in the person of [REDACTED] or others, mislead E*HealthLine (negligently or otherwise) in regard to its position regarding the Memorandum, the project or the later bilateral joint venture with Pharmaniaga. Further, the Tribunal does not accept that E*HealthLine ever misunderstood Modern’s consistent position from 28 November 2011 onwards; but, even assuming it did (contrary to the Tribunal’s finding), that could not have been a reasonable belief held by E*HealthLine.
5.202.
[REDACTED]
5.203.
In the Tribunal’s view, if there were any duty of care owed to E*HealthLine (as alleged), it was not violated by Modern or Pharmaniaga. Accordingly, for these reasons, this claim is dismissed by the Tribunal.
5.204.
Breach of Fiduciary Duty: E*HealthLine contends that the Respondents owed fiduciary duties to E*HealthLine under English law, "to act honestly, responsibly and reasonably, and with the utmost good faith and candor in all of their dealings" with E*HealthLine; and that both Respondents breached these duties causing actual loss to E*HealthLine. These breaches of duty are alleged to be negligence, by act and omission, misleading E*HealthLine and thereby making a profit out of E*HealthLine’s trust where they convinced E*HealthLine to continue to provide support for the proposed joint venture when the Respondents had no intention of honouring their contractual duties to E*HealthLine.118
5.205.
Modern denies any fiduciary duties to E*HealthLine under English law, and, in any event, it denies any breach as alleged by E*HealthLine.119 Pharmaniaga contends likewise that it owed no fiduciary duties to E*HealthLine and, in any event, that it did not breach any such duties as alleged by E*HealthLine.120
5.206.
In the Tribunal’s view, the Respondents owed no fiduciary duties to E*HealthLine under English law. As was held by the House of Lords in Cobbe v Yeoman's Row: "the Court should be very slow to introduce uncertainty into commercial transactions by over-ready use of equitable concepts such as fiduciary obligations or equitable estoppel. This applies to commercial negotiations whether or not they are expressly stated to be subject to contract".121 As addressed above, English law imposes on commercial parties no general duty of good faith, whether contractual or noncontractual. If the Parties had intended to impose upon themselves the broad fiduciary duty alleged by E*HealthLine, they should have, as a matter of English law, agreed such duties expressly. They chose not to so in the Memorandum or elsewhere. Accordingly, this claim fails in limine. Further, the Tribunal does not consider that E*HealthLine established its case regarding any breach of an alleged fiduciary duty by either Modern or Pharmaniaga. For these reasons, these claims are dismissed by the Tribunal.
5.207.
Unlawful Conspiracy: E*HealthLine contends that the Respondents, unlawfully under English law, combined together to injure E*HealthLine and/or to use unlawful means to HealthLine’s detriment, causing actual loss to E*HealthLine.122
5.208.
Modern denies any kind of conspiracy against E*HealthLine. [REDACTED].123 Pharmaniaga contends likewise that there was no unlawful conspiracy with Modern directed at E*HealthLine
5.209.
In the Tribunal’s view, E*HealthLine has failed to discharge its legal burden of proving any unlawful conspiracy between Modern and E*HealthLine. There is no reliable evidence that Modern and Pharmaniaga had any intention at any time (together or alone) of seeking to injure E*HealthLine or that they used any unlawful means to cause loss to E*HealthLine. For these reasons, these claims are dismissed by the Tribunal.
5.210.
Deceit: It is a measure of the general difficulty in analysing E*HealthLine’s successive pleadings and overlapping submissions in this arbitration, that it was unclear whether E*HealthLine was advancing a separate and distinct claim against Modern or Pharmaniaga for the English tort of deceit, sounding in damages. These claims were not specifically pleaded in E*HealthLine’s Request for Arbitration and Memorial (nor summarised in the Terms of Reference). However, as appears from E*HealthLine’s Reply Memorial, its Pre-Hearing Skeleton Argument, its opening oral submissions at the Hearing, its Post-Hearing Brief and its Relief formally pleaded in Paragraph IV(e) of its Post-Hearing Brief, deceit is alleged by E*HealthLine against Pharmaniaga. That appears also to have been Pharmaniaga’s understanding in addressing allegations of false representations and deceit in its Reply Memorial and opening oral submissions at the Hearing.124 Hence, the Tribunal considers that the tort of deceit was alleged against Pharmaniaga as an ancillary claim by E*HealthLine.