(i) Progress Studio LLC (referred to as the "First Respondent"), which is incorporated in St Petersburg, Russia;
(ii) Movie Production Center LLC (referred to as the "Second Respondent"), which is incorporated in Moscow, Russia;
(iii) New Media Distribution Company SEZC LTD (referred to as the "Third Respondent" or "NMDC"), which is incorporated in the Cayman Islands;
(iv) New Media Programming (referred to as the "Fourth Respondent" or "NMP"), which is also incorporated in the Cayman Islands; and
(v) Nova Century Holdings LTD (referred to as the "Fifth Respondent" or "NOVA"), which is incorporated in Gibraltar.
The Group also includes New Century Distribution GmbH (referred to as "New Century"), which is incorporated in Switzerland.
(a) Any Dispute shall be referred to and finally resolved by arbitration under the LCIA Arbitration Rules (for the purpose of this Clause, the Rules).
(b) The Rules are incorporated by reference into this Clause and capitalised terms used in this Clause which are not otherwise defined in this Agreement have the meaning given to them in the Rules.
(c) The number of arbitrators shall be three. The claimant (or claimants jointly) shall nominate jointly one arbitrator for appointment by the LCIA. The respondent (or respondents jointly) shall nominate jointly one arbitrator for appointment by the LCIA. The LCIA shall appoint the chairman.
(d) The Parties hereby agree that any restriction in the Rules upon the nomination or appointment of an arbitrator by reason of nationality shall not apply to any arbitration commenced pursuant to this Clause 39.2.
(e) The seat, or legal place of arbitration, shall be London, England.
(f) The language used in the arbitral proceedings shall be English. All documents submitted in connection with the proceedings shall be in the English language, or, if in another language, accompanied by a certified English translation.
(g) Except as permitted under Clause 39.4 (Option to litigate), the jurisdiction of the English courts under s45 and s69 Arbitration Act 1996 is excluded."
The word "Dispute" is defined in wide terms in Clause 39.1 of the Agreement.
"For the reasons stated, the Tribunal awards the Claimant the sum of US$9,150,024.89, being the principal sum outstanding under the Agreement, such sum to be paid by the Respondents on or before 31 March 2019.
The Tribunal reserves jurisdiction to make another award or awards in respect of any remaining issues, including the Claimant’s claims to interest and costs." (paragraphs 75 and 76)
This Award addresses the only remaining issues, namely, interest and costs.
(i) Claimant’s first submission on 30 November 2018;
(ii) Respondents’ reply submission on 11 December 2018;
(iii) Claimant’s submission in response on 17 December 2018;
(iv) Respondents’ submissions in response on 18 December 2018.
Having carefully reviewed those submissions and comments on them as identified hereafter, the Tribunal proceeds to examine and determine each claim.
(a) Outstanding interest which has accrued under the Facility Agreement, being overdue interest and default interest until 28th September 2018 in the sum of US$1,244,700.02;
(b) Default interest from 28th September 2018, which it has calculated to 30th November 2018 to be a further US$211,670.15;
(c) (a) plus (b) totals US$1,456,370.17;
(d) Continuing interest post-Award under Clause 8.3(a) of the Facility Agreement at LIBOR plus 9.25%, compounded quarterly. Clause 8.3 stipulates that contractual default interest is payable both before and after judgment;
(e) Alternatively, interest pursuant to the Tribunal’s powers under the Arbitration Act and/or under the LCIA Rules.
(i) Interest and default interest to 30th November 2018 in the sum of USS 1,456,370.17 as asked by the Claimant;
(ii) Default interest accruing from 30th November 2018 until payment of the First Award on all sums unpaid thereunder. Such interest shall accrue at LIBOR plus 9.25% compounded quarterly.
"The Company must on demand pay to each Finance Party the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party (or where a Default has occurred, incurred by that Finance Party) in connection with: (i) the enforcement of, or the presentation of any rights under, any Finance Document..."
"The Arbitral Tribunal shall make its decisions on both Arbitration costs and Legal Costs on the general principle that costs should reflect the parties’ relative success and failure in the award or arbitration or under different issues, except where it appears to the Arbitral Tribunal that in the circumstances the application of such a general principle would be inappropriate under the Arbitration Agreement or otherwise. The Arbitral Tribunal may also take into account the parties’ conduct in the arbitration, including any co-operation in facilitating the proceedings as to time and cost and any non-co-operation resulting in undue delay and unnecessary expense. Any decision on costs by the Arbitral Tribunal shall be made with reasons in the award containing such decision."
"The Arbitral Tribunal shall also have the power to decide by an award that all or part of the legal or other expenses incurred by a party (the "Legal Costs") be paid by another party. The Arbitral Tribunal shall decide the amount of such Legal Costs on such reasonable basis as it thinks appropriate. The Arbitral Tribunal shall not be required to apply the rates or procedures for assessing such costs practised by any state court or other legal authority.
(i) Claimant’s submissions on costs on 30 November 2018;
(ii) An exchange of emails between the parties regarding counsel’s fee notes and costs generally between 3 and 6 December together with an update of the Claimant’s Appendix I on costs. The exchange was followed by a decision from the Tribunal in terms: "Having considered the Respondents’ request for more details of the Claimant’s costa submissions, the Tribunal has decided not to give any directions. If the Claimant produces inadequate support for its claim to costs, the claim may be refused or reduced when the Tribunal carries out its assessment."
(iii) Respondents’ submissions in reply on 11 December 2018;
(iv) Claimant’s response to that reply on 17 December 2018;
(v) Respondents’ comments to that response in the letter of 18 December 2018.
|Registration fee||£ 1,750.00|
|LCIA’s administrative charges:||£ 15,475.76|
|Tribunal’s fees and expenses||£130,104.34|
|Total costs of arbitration||£147,330.10|
Towards these costs the Claimant has paid £97,289.10 which includes the Registration fee, deposits lodged and interest accrued. The Respondent has lodged £50,040.99 which includes deposits lodged and interest accrued.
(i) US$ 1,456,370.17 for interest and default interest incurred up to 30 November 2018;
(ii) £ 209,627.80 for the Claimant’s costs, and
(iii) £97,289.10 to reimburse the Claimant for the costs incurred by the Claimant towards the costs of the arbitration.
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