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Lawyers and other representatives

Final Award

I. THE PARTIES AND THEIR COUNSELS

A. Applicant

1.
The Applicant in this arbitration is:

ENKA INSAAT VE SANAYI A.S.

Balmumcu Mahallesi

Zincirlikuyu Yolu No. 10 ENKA Binasi

TR-34349 Be§ikta§. Istanbul

Turkey

(hereinafter: "the Applicant" or "ENKA")

2.
The Applicant is represented in this arbitration by:

Ms Julie Bédard

Ms Paula Henin

Lawyers

Skadden, Arps, Slate, Meagher & Flom LLP

4, Times Square

New York, NY 10036

United States

Tel +1 212 735 3000

Fax +1 212 735 2000

Email julie.bedard@skadden.com

paula.henin@skadden.com

B. Respondents

3.
The Respondents in this arbitration are:

1. THE GABONESE REPUBLIC

Minister Régis Immongault

Minister of the Economy, Strategic Foresight and Sustainable Development Planning

Immeuble Arambo

B.P. 747

Libreville

Gabon

(hereinafter: "Respondent 1" or "the Gabonese Republic")

2. L'AGENCE NATIONALE DES GRANDS TRAVAUX

Mr Bodgan Sgarticu, Chief Executive Officer

(replacing Ms Emmanuelle Mattei)

Immeuble du Bord de Mer

Boulevard de l'Indépendance

BP 23765

Libreville

Gabon

(hereinafter: "Respondent 2" or "l'ANGT")

4.
The Respondents are represented in this arbitration by:

Mr Georges Arama

Ms Gabrielle Olivier

Mr Pascal Ithurbide

Lawyers

KGA Avocats

44, avenue des Champs-Elysées

FR-75008 Paris

France

Tel +33 1 44 95 20 00

Fax +33 1 49 53 03 97

Email g.arama@kga.fr

p.ithurbide@kga.fr

g.olivier@kga.fr

Ms Huguette Yvonne Nyana Ekoumé

Chief Executive Officer of the State Judicial Agency

BP 912

Immeuble Le Narval

Libreville

Gabon

Email hnyana@yahoo.fr

5.
The Applicant and the Respondents are collectively referred to hereinafter as "the Parties" or individually as a "Party".

II. THE ARBITRAL TRIBUNAL

6.
The members of the Arbitral Tribunal in these proceedings are:

Mr Fernando Mantilla-Serrano

Lawyer

Latham & Watkins LLP

45, rue Saint-Dominique

FR-75007 Paris

France

Tel +33 1 40 62 20 00

Fax +33 1 40 62 20 62

Email fernando.mantilla@lw.com

appointed by the Applicant and confirmed as co-arbitrator by the Secretary-General of the International Court of Arbitration of the ICC, (hereinafter: "the Court").

Professor Mathias Audit

Lawyer

Steering Legal

20, rue Fortuny Street

FR-75017 Paris

France

Tel +33 1 45 05 15 65

Fax +33 1 45 05 45 66

Email mathias.audit@steeringlegal.com

appointed by the Respondents and confirmed as co-arbitrator by the Secretary-General of the Court.

Dr Xavier Favre-Bulle

Lawyer

Lenz & Staehelin

Route de Chêne 30

Case postale 6165

CH-1211 Geneva 6

Switzerland

Tel +41 58 450 70 00

Fax +41 58 450 70 01

Email xavier.favre-bulle@lenzstaehelin.com

confirmed as president of the Arbitral Tribunal by the Secretary-General of the Court following his joint appointment by the co-arbitrators.

III. SUMMARY OF THE PROCEEDINGS

7.
On 25 May 2017, the Secretariat received a Request for Arbitration dated 24 May 2017 (with exhibits C-1 to C-24), containing the appointment of Mr Fernando Mantilla-Serrano as coarbitrator. In accordance with Article 4 (2) of the ICC Rules of Arbitration (hereinafter the "Rules"), this arbitration was initiated on 25 May 2017 (see Letter from the Secretariat of 30 May 2017).
8.
The secretariat acknowledged receipt of the Request for Arbitration by letter dated 30 May 2017.
9.
In a letter dated 8 June 2017, the Secretariat notified the Respondents of the Request for Arbitration and granted them a period of 30 days to file their Response.
10.
On 8 June 2017, the Secretariat asked the Applicant to pay a provisional advance on the costs of USD 150,000, corresponding to an amount in dispute partially quantified at USD 44,550,752.
11.
Mr Fernando Mantilla-Serrano's Statement of acceptance, availability, impartiality and independence as well as his curriculum vitae were sent by the Secretariat to the Parties by letter dated 23 June 2017.
12.
In a letter dated 23 June 2017, the Secretariat acknowledged receipt of payment by the Applicant of USD 145,000 (in addition to the USD 5,000 already paid on filing the Request for Arbitration) and confirmed that the provisional advance was paid in full.
13.
In a letter dated 4 July 2017, the firm KGA Attorneys indicated having been appointed by the Respondents to ensure the defence of their interests in these proceedings.
14.
In the same letter, the Respondents' counsels requested a 15 day extension to reply to the Request for Arbitration and appointed Professor Mathias Audit as co-arbitrator.
15.
In a letter dated 10 July 2017, the Secretariat granted the Respondents an extension to 24 July 2017 to file their Response.
16.
Professor Mathias Audit's Statement of acceptance, availability, impartiality and independence as well as his curriculum vitae were sent by the Secretariat to the Parties by letter dated 21 July 2017.
17.
In an email dated 25 July 2017, the Applicant requested "confirmation that his revelations [of Professor Audit] with regard to the two arbitral proceedings involving Gabon in which Professor Audit intervened as an arbitrator are closed".
18.
On 24 July 2017, the Secretariat received the Response to the Request for Arbitration, dated 24 July 2017.
19.
In a letter dated 2 August 2017, the Secretariat notified the Applicant of the Response to the Request for Arbitration.
20.
On 2 August 2017, Professor Audit confirmed that the two arbitral proceedings referred to in his Statement were closed. On the same day, the Secretariat sent Professor Audit's letter to the Parties and invited them to submit any comments up until 9 August 2017.
21.
In an email dated 9 August 2017, the Applicant requested "further information about the arbitration involving Gabon in which the Professor acted as arbitrator, including, if possible, the identity of the parties and the outcome of the arbitration".
22.
On 10 August 2017, the Secretariat acknowledged receipt of the Applicant's email of 9 August 2017 and, in a letter sent on the same day, granted Professor Audit until 16 August 2017 to reply to the Applicant's question.
23.
In an email dated 12 August 2017, Professor Audit provided the required information, which was sent to the Parties on 17 August 2017 so that they could submit any comments by 24 August 2017.
24.
On 29 August 2017, the Secretariat received an "amended "Request for Arbitration from the Applicant, dated 25 August 2017 (including exhibits C-25 to C-30). The Applicant indicated (paragraph 1) that this document: "amends and supplements ENKA's Request for Arbitration filed on 25 May 2017 (the "original Request"), which was made necessary by the Respondents' actions since that date, which compounded the dispute between the Parties.
25.
In a letter dated 31 August 2017, the Secretariat granted the Respondents a period of 30 days to file a Response to the amended Request for Arbitration. The Respondents did not file any such submission.
26.
On 5 September 2017, the Secretariat confirmed the appointment of the co-arbitrators and invited them to appoint the president of the Arbitral Tribunal within 30 days.
27.
On 5 October 2017, the co-arbitrators informed the Secretariat that they had agreed to appoint Mr Xavier Favre-Bulle as president of the Arbitral Tribunal. On 10 October 2017 the Secretariat informed the Parties of this appointment and wrote to the prospective president asking him to complete the forms required for his confirmation.
28.
On 20 October 2017, the Secretariat sent the Parties Mr Favre-Bulle's Statement of acceptance, availability, impartiality and independence as well as his curriculam vitae.
29.
On 26 October 2017, the Secretary-General confirmed Mr Favre-Bulle in his role as president of the Arbitral Tribunal, by appointment of the joint co-arbitrators.
30.
On 27 October 2017, the Secretariat sent the file electronically to the Arbitral Tribunal.
31.
The full file was received by the Arbitral Tribunal on 30 October 2017 via DHL.
32.
On 2 November 2017, the Arbitral Tribunal wrote a first letter to the Parties to set a date for the case management conference, to discuss in particular the Terms of Reference and the Rules of Procedure applicable to this arbitration.
33.
On 10 November 2017, each of the Parties sent the Arbitral Tribunal, at the latter's invitation, a summary of its claims as well as its submissions for inclusion in the Terms of Reference.
34.
The Terms of Reference were sent to the Parties as a draft dated 14 November 2017.
35.
On 15 November 2017, the Arbitral Tribunal sent the Parties a draft agenda for the conference call.
36.
On 17 November 2017, the Arbitral Tribunal notified the Parties of draft Ordinance No. 1 containing the proposed Rules of Procedure.
37.
On 20 November 2017, the Respondents submitted comments on the draft Terms of Reference.
38.
On 21 November 2017, the Applicant informed the Arbitral Tribunal that the "Applicant has no comments or corrections to make to the draft Terms of Reference and agenda sent by the Arbitral Tribunal on 14 and 15 November, respectively".
39.
The case management conference was held by way of a telephone conference call on 22 November 2017 at 2:00 PM CET.
40.
Following the aforementioned conference call, in an email dated 27 November 2017, the Arbitral Tribunal recalled that "the Parties had to revert to the Arbitral Tribunal regarding some of the points discussed during the conference, in particular the confidentiality clause provided for in the Terms of Reference. In the same email, the Arbitral Tribunal indicated that it "would therefore be grateful [if you would] tell us today when you [the Parties] will be able to revert to the Arbitral Tribunal regarding these unresolved matters. In the meantime, the Secretariat, who is in copy hereto, will note that a brief extension of the time allotted to complete the Terms of Reference is likely to be necessary".
41.
On 28 November 2017, the Applicant sent the Arbitral Tribunal the revisions made by joint agreement of the Parties to the draft Terms of Reference and Ordinance No. 1, as well as ENKA's power of attorney to Skadden for the purposes of these proceedings".
42.
In an email dated 28 November 2017, the Arbitral Tribunal acknowledged receipt of an email from the Applicant dated the same day and noted that "the amendments to the Terms of Reference and procedural ordinance have been agreed between the Parties".
43.
On 29 November 2017, the Applicant sent the Arbitral Tribunal "the Parties' joint proposal on the procedural timetable". This draft provided for submissions to be exchanged, but not for a hearing.
44.
On the same day, the Arbitral Tribunal notified the Parties of the final version of the Terms of Reference, ready for the signature process.
45.
In a letter dated 30 November 2017, the Secretariat informed the Arbitral Tribunal that the Court "has extended the deadline to establish the Terms of Reference to 29 December 2017 ".
46.
In an email dated 3 December 2017, the Arbitral Tribunal notified the Parties of the presumably final versions of Ordinance No. 1 and the procedural timetable, explaining that "both documents will be formally notified to the Parties (Ordinance No.1 signed by the President) on Monday 4 December COB CET. If either Party should nevertheless have any feedback, then it should kindly make it known before that date".
47.
On 4 December 2017, the Parties informed the Arbitral Tribunal that they had no additional comments about the aforementioned drafts.
48.
On the same day, the Arbitral Tribunal therefore formally notified the Parties of the final versions of the procedural Ordinance No. 1 and the procedural timetable, dated 4 December 2017.
49.
In doing so, it was acknowledged that, as neither Party had requested arrangements for an oral hearing to have witnesses/experts examined, such a hearing would, in principle, not be held under the terms of the procedural timetable, unless special circumstances during the arbitration led the Arbitral Tribunal to deem an oral hearing to be necessary.
50.
In a letter dated 7 December 2017, the Arbitral Tribunal notified the Parties of the final version of the Terms of Reference (dated the same day), signed by all Parties and the members of the Arbitral Tribunal.
51.
In a letter dated 15 December 2017, the Secretariat informed the arbitrators and the Parties that it had sent the Terms of Reference of 7 December 2017 to the Court and that the deadline for handing down a final award was six months from the date of signature of the Terms of Reference.
52.
On 15 December 2017, the Secretariat also informed the Parties that the Court had reevaluated the amount of the provisional advance at USD 670,000, such that the Applicant had to pay an additional amount of USD 185,000 and the Applicant an amount of USD 335,000 no later than 15 January 2018.
53.
On 19 January 2018, the Respondents filed a Statement of Defence, including (i) an index of factual exhibits and (ii) three factual exhibits (R-1 to R-3).
54.
In their Statement of Defence, the Respondents indicated that they "need to think about the best option [with regard to the recovery of the steel structure], which they propose to do in the course of the arbitration proceedings, after having ensured that they had the wherewithal to meet the recovery costs of the steel structure, a choice that appears to make more sense than that of recovering only the price of the steel" (para. 49). "They will therefore make their final choice known as part of the Statement of Rejoinder" (para. 50).
55.
In a letter dated 22 January 2018, the Secretariat acknowledged the payment of USD 185,000 by the Applicant and, insofar as the Respondents had not paid their portion of the provision, granted to the latter an extension to 5 February 2018 to pay said amount.
56.
On 6 February 2018, the Applicant filed a Statement of Rejoinder, including (i) an index of case law references (CL-1 to CL-26), (ii) an index of factual exhibits submitted for the first time with the Statement of Rejoinder (C-31 to C-43) and (iii) a consolidated list of all factual exhibits submitted by the Applicant.
57.
In its Statement of Rejoinder, the Applicant "requests the Arbitral Tribunal to dismiss any attempt by the Respondents to submit their position on the steel structure for the first time in their Statement of Rejoinder, and naturally reserves the right to file further observations in response to any new argument or point that the Respondents might raise with respect to the Trade Finance, to the steel structure or to the Steel Payments in their Statement of Rejoinder" (para. 35).
58.
By letter dated 8 February 2018, insofar as the Respondents had still not paid their portion of the provisional advance, the Secretariat granted to the Respondents an additional extension to 23 February 2018 to pay said amount of the provisional advance.
59.
During the week of 12 February 2018, it was planned, according to the procedural timetable of 4 December 2017, that the Arbitral Tribunal would issue guidelines on the post-submissions procedure in consultation with the Parties (if necessary by telephone conference, to be arranged). This resulted from the wish expressed by the Parties at the case management conference of 22 November 2017 that an update be made after the two submissions had been filed, in order to confirm that it was, in principle, not necessary to convene a hearing.
60.
In an email dated 14 February 2018, the Arbitral Tribunal issued the aforementioned guidelines by informing the Parties of what it deemed to be the next steps in the proceedings, based on the submissions already received. As there were no witnesses/experts or other special circumstances, the Arbitral Tribunal admitted the Parties' position according to which a hearing was not necessary, as the issues in dispute could be ruled on based on the submissions and exhibits. It added: "The Respondents will have taken due note of the Applicant's position with regard to the procedural admissibility of certain topics which might be covered in the Rejoinder [to be filed on 15 February 2018 in accordance with the procedural timetable]. The Arbitral Tribunal considers that the Respondents must be able to reply to these points [with regard to the recovery of the steel structure] in their Rejoinder, without a prior procedural decision by the Arbitral Tribunal. The Arbitral Tribunal will, however, hand down any subsequent procedural decision required by the circumstances, if any specific questions remain with regard to the Rejoinder filed". In addition, a new case management conference call was planned for 22 February 2018.
61.
On 15 February 2018, the Respondents filed a Statement of Rejoinder including a list of their new factual exhibits (R-4 to R-19) and new legal exhibits (RL-1 to RL-16).
62.
On 18 February 2018, the Arbitral Tribunal - pending the Respondents' availability for a case management conference call on 22 February 2018 - informed the Parties that "the 'Deadline for submission of the final exhibits phase in the procedural timetable' scheduled for tomorrow 19 February 2018 is postponed to a date that will be set by the Arbitral Tribunal after having heard the Parties during this telephone conference".
63.
On 19 February 2018, the Arbitral Tribunal - having been notified of the Respondents' availability - confirmed the case management conference call on 22 February 2018.
64.
In a letter dated 19 February 2018, and in response to the Respondents' Statement of Rejoinder, the Applicant filed additional exhibits (C-44 and C-45) presumably to provide proof of payment of the invoices included in exhibits C-35 to C-41 of its Statement of Rejoinder, along with a consolidated list of the factual exhibits presented by the Applicant. The Applicant also stated that "in order to simplify these arbitration proceedings and facilitate a prompt resolution of this dispute, the Applicant withdraws its request for reimbursement of the operational expenses and other costs incurred since January 2016 as a result of the Respondents' breaches of the Settlement Agreement", which resulted in a reduction in the scope and the amount of its claim for damages in this arbitration, as will be discussed in greater detail below (see para. 403 and seq. below).
65.
On 20 February 2018, the Arbitral Tribunal acknowledged receipt of the original Statement of Rejoinder and its factual exhibits R-4 to R-19 and legal exhibits RL-1 to RL-16 and observed "that the original version of the exhibits list, unlike its electronic version, lists an exhibit R-20 without it being referred to in the Statement of Rejoinder or presented by the Respondents", and "invited the Respondents to clarify the status of this exhibit R-20 and the list of documents by 22 February 2018 12:00 PM CET".
66.
In a letter dated 21 February 2018, the Counsel for the Defence informed the Arbitral Tribunal that "during the preparation and finalisation of the Respondents' Statement of Rejoinder, I had planned to communicate an exhibit R-20 entitled 'Certificate of Waiver of payment of VAT, corporation tax and withholding tax'". However, when I had to send the Statement of Rejoinder, the exhibit I was expecting had not yet been provided. [...] In the meantime, the Gabonese Republic has sent me the certificate in question, which I am attaching hereto [Exhibit R-20]"
67.
In the same letter, the Counsel for the Defence explained that "sending this exhibit implies that the Gabonese Republic and ANGT request to be able to proceed with the amendment to their responses in relation to that question. [...] the Respondents are therefore required to ask the Arbitral Tribunal to acknowledge receipt of this Certificate of exoneration of payment of VAT, corporation tax and withholding tax'".
68.
The second case management conference call was held on 22 February 2018 at 5:30 PM CET.
69.
On 24 February 2018, the Arbitral Tribunal sent the Parties the procedural timetable (dated 23 February 2018) as updated following the conference call of 22 February 2018. The Arbitral Tribunal confirmed the nature of the new submissions agreed with the Parties, i.e., an amended Statement of Rejoinder from the Respondents as of 27 February 2018 (regarding the new exhibit R-20 and as an update of the Respondents' submissions following the Applicant's amended submissions of 19 February 2018), additional statements from the Parties as dated 19 March 2018 (regarding the possible recovery by the Respondents of the steel structure and final submissions in this regard; comments by the Applicant on the new exhibit R-20), followed by any questions the Arbitral Tribunal may have (to ensure a thorough understanding of the case in the absence of a hearing), and then by the usual final phases (arbitration costs, closing, award).
70.
The Arbitral Tribunal furthermore pointed out that the procedural timetable had been "amended by the deletion of the final deadline phase for the presentation of the final exhibits1. As things stand, it is the Parties' understanding that they do not intend to file other exhibits".
71.
In a letter dated 27 February 2018, the Secretariat observed that the Respondents had still not paid the balance of the provisional advance and invited the Applicant to substitute for the Respondents by paying the amount of USD 335,000 by 29 March 2018.
72.
In an email dated 27 February 2018, confirmed by letter, the Respondents filed an amended Statement of Rejoinder (which supersedes the version dated 15 February 2018). To make this document easier to read, we have indicated the amended paragraphs with a line in the margin".
73.
In a letter dated 7 March 2018, sent to the Secretariat, the Applicant observed that "the Respondents' refusal to pay their share of the provisional advance of the arbitration costs is an utter disregard of their contractual agreements and these arbitration proceedings" and that "this situation is clearly unfair to the Applicant, which cannot accept it without any further clarification from the Respondents". The Applicant therefore asked the Secretariat to invite the Respondents to explain the reasons for their refusal to pay their share of the provisional advance on the costs.
74.
In a letter dated 12 March 2018, the Secretariat invited the Respondents to submit their comments on the Applicant's application of 7 March 2018 at the latest by 16 March 2018.
75.
In a letter dated 14 March 2018, the Applicant informed the Respondents that "the tax waiver certificate presented under exhibit R-20 in the arbitration referenced above is insufficient to meet the Respondents' tax obligations as defined in the Settlement Agreement". According to the Applicant, "the certificate presented under exhibit R-20 only refers to the payment 'of VAT, withholding tax, and corporation tax [impôt sur les sociétés (IS)]' and does not expressly include in its scope of application the other categories of taxes and duties covered by the terms of the Settlement Agreement, such as (but not limited to) the branch remittance tax and social security contributions". The Applicant therefore "invited the Respondents to produce a new Certificate of Waiver of payment generally referring (as in the Settlement Agreement) to "all taxes and duties" in the Gabonese Republic arising from the Contracts and from the Settlement Agreement".
76.
On 19 March 2018, in accordance with the revised procedural timetable of 23 February 2018, the Applicant filed an additional Statement, along with its letter to the Respondents of 14 March 2018 (see para. 75 above).
77.
At the same time, the Respondents also filed a brief submission to inform the Arbitral Tribunal that "the Parties have been unable to agree on the terms and conditions relating to the recovery of the steel structure by the Gabonese Republic. The Respondent therefore requests the Arbitration Court to separate the matter of the payment of the amounts claimed by ENKA (Applicant) from that of the recovery of the structural elements". The Respondents further indicated that "according to the broadest time limit (the Time Limit) granted by the Arbitral Tribunal in the coming final award, the Gabonese Republic will proceed with the recovery of the steel structure 30 (thirty) days from this Time Limit".
78.
In a letter dated 22 March 2018, the Secretariat observed that the Respondents had not made any comments on the reasons for their refusal to pay the balance of the provisional advance and invited the Applicant to substitute for the Respondents by paying the amount of USD 335,000.
79.
On 6 April 2018, the Secretariat observed that the Applicant had not paid the balance of the provisional advance and granted an extension to 20 April 2018 so that the Applicant could pay the amount of USD 335,000.
80.
In a letter dated 12 April 2018, the Secretariat acknowledged the payment of USD 335,000 by the Applicant and confirmed that the provisional advance set by the Court was fully paid up.
81.
In a letter dated 23 April 2018, the Arbitral Tribunal informed the Parties that it had conducted its initial deliberations and that it had "decided to dismiss the Respondents' request to separate the matter of the payment of the amounts claimed by the Applicant from that of the recovery of the elements of the steel structure".
82.
The Arbitral Tribunal also identified the points on which it wished to hear the Parties. Firstly, regarding the statements relating to taxes, the Respondents were invited to specify at the latest by 2 May 2018 (i) "if they intend to respond to the Applicant's request [which was sent to the Respondents so that they could provide a new Certificate of Waiver of payment; see para. 75 above] (and, if so, in what form and by when) or if the certificate under exhibit R-20 must be regarded as reflecting the Respondents' final position". Secondly, regarding the steel structure, the question was whether the Respondents maintained the following submission: "[the Respondents] request the Arbitral Tribunal to prohibit ENKA from disassembling and/or selling the steel structure, so that it will be possible to arrange for its return to Gabon (amended Rejoinder, para. 60, 73)".
83.
The Arbitral Tribunal also granted the Applicant until 11 May 2018 to briefly comment on the Respondents' responses and clarify the content of its final submissions, particularly with regard to the social security contributions required by the Caisse Nationale de Sécurité Social [national social security fund ("CNSS")].
84.
The Arbitral Tribunal also added: "in the event that one or other of the Parties were to deem that other important points needed to be supplemented before a Final Award can be handed down, it shall so indicate in the form of a reasoned request by 2 May 2018, i.e., including why such a submission should be admitted, but without providing the substance of the submission at this stage, so that the Arbitral Tribunal can first decide on the admissibility of the request before, if appropriate, admitting the submission".
85.
Finally, also in the same letter sent on 23 April 2018, the Arbitral Tribunal invited the Parties to discuss and if possible agree on the format and content of the expense claims.
86.
On 2 May 2018, the Respondents filed their responses to the requests made by the Arbitral Tribunal in its letter of 23 April 2018 with regard to the statements relating to taxes and the steel structure.
87.
In a letter dated 11 May 2018, the Applicant clarified the content of its final submissions regarding the payment of taxes, duties and social security contributions and briefly commented on the Respondents' responses of 2 May 2018 regarding the Certificate of Waiver of tax payments presented under exhibit R-20, the recovery of the steel structures, and the Respondents' request that a grace period be granted.
88.
In its cover email dated 11 May 2018, the Applicant informed the Arbitral Tribunal that "the Parties have come together on the matter of the submissions on the expense claims and agreed that they are to be limited to 8 pages maximum and that they are not to be accompanied by supporting documents".
89.
In a letter dated 31 May 2018, the Secretariat informed the Arbitral Tribunal that the Court "has extended the deadline for handing down the final award to 31 July 2018"
90.
In a letter dated 5 June 2018, the Arbitral Tribunal notified the Parties that it had continued its deliberations and concluded that, pursuant to the submissions made by the Parties, it now had the information allowing it to hand down a final award ruling on all questions raised.
91.
Moreover, the Arbitral Tribunal observed "that no Party has filed any additional request or supplements to the most recent submissions"; "the Parties have been fully heard". The pleadings and the presentation of evidence are deemed to be completed. The arbitration may proceed to its final phase as indicated in the letter from the Arbitral Tribunal of 23 April 2018".
92.
In the same letter, the Arbitral Tribunal invited the Parties "to submit their respective expense claims by 15 June 2018. Where appropriate, each Party will have an opportunity to comment on the submissions of the opposing Party until 21 June 2018".
93.
On 15th June 2018, the Applicant filed its Statement of Expenses on the costs it had incurred, in the format agreed between the Parties, without supporting documents.
94.
In an email dated 16 June 2018, the Arbitral Tribunal acknowledged the Applicant's submission dated 15 June 2018 and observed it had not yet received a submission from the Respondents.
95.
Shortly after 16 June 2018, the Respondents (who explained that there had been omission) filed their own expense claims in the form of a brief letter.
96.
In an email dated 21 June 2018, the Applicant informed the Arbitral Tribunal that "it has no comment" on the Respondents' expense claims. The latter, for their part, did not respond to the Applicant's expense claims.
97.
No other application or objections have been subsequently formulated by either Party.
98.
In a letter dated 13 July 2018, the Arbitral Tribunal closed the proceedings in accordance with Article 27 of the Rules.
99.
In a letter dated 31 July 2018, the Secretariat informed the Arbitral Tribunal that the Court "has extended the deadline for handing down the final award to 31 August 2018".
100.
In a letter dated 30 August 2018, the Secretariat informed the Arbitral Tribunal that the Court "has extended the deadline for handing down the final award to 31 October 2018".

IV. CLAIMS AND SUBMISSIONS OF THE PARTIES

101.
In a letter from the Arbitral Tribunal dated 2 November 2017, the Parties were invited to file a brief summary of their claims and submissions for the purpose of the Terms of Reference, in application of Article 23, paragraph 1, letter c of the Rules, which the Parties did on 10 November 2017. These summaries were then included in the Terms of Reference (pages 10 to 16) of 7 December 2017, which was signed by both Parties and by the three members of the Arbitral Tribunal.
102.
The respective position of each Party, as well as the claims and resulting submissions, were then developed in the successive submissions of the Parties. They will not be recalled here in detail, in order to avoid excessive reiterations. The Arbitral Tribunal took due note of all allegations, evidence, arguments and claims from the Parties, which will be discussed in the decision-making phase of this award insofar as they are relevant to the outcome of the dispute. This section is limited to a brief overview of each Party's formal submissions, as well as their changes throughout the arbitration.

A. Applicant

103.
In its amended Request for Arbitration of 25 August 2017, the Applicant made the following submissions2:

"[...] the Applicant requests the following Decisions by means of an Arbitral Award:

(a) Declaring that the Respondents were in breach of their contractual obligations arising out of the Memorandum of Understanding;

(b) Ordering the Respondents to pay the Applicant the amount of USD 44,550,752, in accordance with Article 4.3 of the Memorandum of Understanding, plus the current legal interest on this amount, determined in accordance with French law;

(c) Declaring that the Applicant is not liable for any tax, duty, or social security contribution resulting from the Contracts or the Memorandum of Understanding or relating thereto, in the Gabonese Republic;

(d) Ordering the Respondents to pay the full amount of all taxes (including social security contributions) likely to become a liability for the Applicant in the Gabonese Republic as a result of the Contracts or the Memorandum of Understanding, unless the Respondents demonstrate, to the satisfaction of the Arbitral Tribunal, that the Republic will exempt the Applicant for the full amount of its potential tax liabilities (including any social security contributions sought) in the Gabonese Republic, by providing the Applicant a complete and accurate set of payment waivers and by any other means deemed sufficient by the Arbitral Tribunal;

(e) Ordering the Respondents to take possession of the steel warehoused in Turkey within 30 calendar days from the date on which the Award is handed down, failing which the Applicant should be able to dispose of the steel in any manner it deems fit without being liable for the Respondents, and this without prejudice to the Applicant's request regarding the payment of damages to compensate it for all of the steel warehousing costs that the Applicant has incurred and continues to incur due to the Respondents' breach of their contractual obligations, as well as all damages likely to compensate the Applicant for the financial losses that it may incur if it should be required to dispose of the steel at its own expense;

(f) Awarding the Applicant damages of an amount to be set during this arbitration, in order to compensate the Applicant for the losses it has incurred and continues to incur due to the Respondent's persistent and characterised breach of the terms of the Memorandum of Understanding;

(g) Sentencing the Respondents to pay the fees and expenses relating to this arbitration, including the fees and disbursements of the Applicant's lawyers; and

(h) All other decisions that the Applicant may request and which the Arbitral Tribunal finds fair and appropriate".

104.
The aforementioned submissions (a), (b), (g) and (h) were not amended during the arbitration.
105.
The following amendments were made to the other submissions.
106.
Regarding submissions (c) and (d) of the amended Request for Arbitration, relating to taxes, duties and social security contributions, the final content of the request is expressed by the Applicant in its letter dated 11 May 2018 as follows: "the Applicant respectfully requests that the Arbitral Tribunal orders the Republic to indemnify ENKA for any taxes and duties including all social security contributions, that were charged or that may be charged to ENKA in Gabon in connection with the Contracts and/or the Settlement Agreement, said amount to be, moreover, increased by interest at the legal rate calculated in accordance with French law. This includes the obligation for the Republic to indemnify the Applicant, in US dollars (the amount would be calculated based on the exchange rate applicable on the date of the Arbitral Award), for the amount wrongfully charged by the Caisse Nationale de Sécurité Social ("CNSS") (namely, FCFA 1,888,760,617) if it were to be paid, as well as all interest and/or penalties that may be imposed on the Applicant in connection with this request, and all additional costs that may be incurred in the event that enforcement measures were to be levied against ENKA's assets, as the case may be"3.
107.
Regarding submission (e) of the amended Request for Arbitration on the steel warehoused in Turkey, the Applicant has maintained its request to recover the steel structure throughout the arbitration, but with regard to the time frame, it specified in its letter dated 11 May 2018 that it "is ready to reach out to the Respondents and proposes a time limit of 60 days from the date on which the Arbitral Award is handed down"4 (in lieu of 30 days as previously stated).
108.
As for submission (f) on damages, in its Statement of Rejoinder, the Applicant specified that "the total damages claimed to date by the Applicant under paragraph 52 (f) of its Amended Request for Arbitration is USD 1,641,184 (plus interest), which includes € 425,000 in warehousing fees (for the period from 1 August 2016 at 31 December 2017)"5. In its subsequent letter of 19 February 2018, the Applicant informed the Arbitral Tribunal that it "is withdrawing its request for reimbursement of the operational expenses and other costs that it has incurred since January 2016 due to the Respondents' breach of the Settlement Agreement. Consequently, the Applicant's claim for damages, which was in addition to its request for the payment of the amounts due under the terms of the Settlement Agreement, is now limited to its request for reimbursement of the cost of warehousing the steel structure in Istanbul, which is calculated at €450,000 as of 31 January 2018 (plus the current legal interest on that amount). As it has already noted, the Applicant will continue to incur these costs, as a rate of € 25,000 per month, as long as the Respondents continue to be in breach of their obligation (which they do not contest) to take possession of the steel structure"6.

B. Respondents

109.
In their Statement of Defence, the Respondents made the following submissions7:

"- Take due note of the payments already made by the Gabonese Republic in favour of the Applicant, of an amount of USD 7,800,000;

- Take due note that ENKA has not provided proof of requests from the Gabonese Republic and/or the tax administration charging it with any claims for taxes, VAT or corporation tax for the tax years 2016 and 2017;

- Acknowledge that the Parties neither stipulated nor agreed in the Memorandum of Understanding of 17 December 2015 that the Applicant shall be excused and/or exonerated from any mandatory social security contributions in Gabon or social security contributions relating thereto;

- Consequently, as a counter-claim and to offset the amounts that may be ruled payable by the Respondents, sentence the Applicant to pay said contributions to the amount of FCFA 1,888,760,617, or USD 3,523,035, including the legal interests calculated in accordance with French law, as of the date of the coming Award;

- Acknowledge that the Gabonese Republic found itself in an unforeseeable economic and political situation at the time the Parties signed the Memorandum of Understanding of 17 December 2015;

- Find and rule, accordingly, that the unforeseeability theory commonly accepted in French administrative law is applicable, a fortiori pursuant to Clause 10 of the Memorandum of Understanding;

- Order the Parties to renegotiate the initial schedule of payments within two months from the date of the coming Award;

- Failing an agreement between the Parties on setting a new moratorium, rule that the Gabonese Republic will have a grace period of two years from the date of the coming Award, in accordance with Article 1343-5 of the French Code of Civil Procedure, applicable to the dispute;

- Defer ruling on the main award request in the amount of USD 44,550,752 pending the Parties' agreement on the definition of new terms of payment of the balance or any decision by the Arbitral Tribunal on the request for a grace period;

- Take due note that the Gabonese Republic will, in its Statement of Rejoinder, provide a reply on the choice it must make to either relinquish the steel structure currently warehoused in Turkey in custody of ENKA, or recover it, in return for the payment of its value, less the resale price of the steel by weight and at the best price, within a time frame that the Arbitral Tribunal will set according to the contingencies in connection with this recovery;

- Take due note that the Gabonese Republic reserves the right to reply to ENKA's claim for damages when the latter has calculated the alleged loss and substantiated it in the accounts;

- Order that the Applicant shall bear all charges, fees and costs incurred or to be incurred, including the fees and costs of the arbitrators and its own counsels in connection with the arbitral proceedings;

- The Gabonese Republic reserves the right to amend/supplement this Statement both in the presentation of the facts and in the case law discussion, to submit additional means and requests or revise them, and to submit all documents or evidence required in the context of these arbitration proceedings, in accordance with the ICC Rules".

110.
Some of these submissions were maintained during the arbitration. The ones that were amended were changed as follows.
111.
In their amended Statement of Rejoinder (replacing the initial Statement of Rejoinder), the Respondents did not reintroduce the submission tending to ask the Arbitral Tribunal to:

"Take due note that ENKA has not provided proof of requests from the Gabonese Republic and/or the tax administration charging it with any claims for taxes, VAT or corporation tax for the tax years 2016 and 2017"8.

112.
Regarding the submissions on the unforeseeability theory, these were changed as follows in the amended Statement of Rejoinder:

"Acknowledge that the Gabonese Republic found itself in an unforeseeable economic and political situation not only at the time the Parties concluded the transaction, but also to date, due to a very slow rise in oil prices, which have never returned to the level of before the Memorandum of Understanding of 17 December 2015"9.

"Find and rule, accordingly, that the unforeseeability theory and, at the very least, Clause 10 of the Memorandum of Understanding, are applicable"10.

113.
With regard to the submissions relating to the renegotiation by the Parties of the initial schedule of payments, the following submissions were withdrawn, given the Applicant's refusal to renegotiate:

"Order the Parties to renegotiate the initial schedule of payments within two months from the date of the coming Award;

"Defer ruling on the main award request in the amount of USD 44,550,752 pending the Parties' agreement on the definition of new terms of payment of the balance or a decision of the Arbitral Tribunal on the request for a grace period"11

114.
In the Amended Statement of Rejoinder, withdrawing the aforementioned submissions for renegotiation led to an adjustment of the submissions with the application of a grace period of two years, which became an alternate submission (if the Arbitral Tribunal were to dismiss the request to apply the unforseeability theory) as follows:

"Given the Applicant's refusal to renegotiate, alternatively rule that the Gabonese Republic will have a grace period of two years from the date of the coming Award, in accordance with Article 1343-5 of the French Civil Code, applicable to the dispute"12.

115.
Regarding the outcome of the steel structure, in the Amended Statement of Rejoinder, the Respondents indicated that: "they are opting for the recovery of the steel structure and therefore request the Arbitral Tribunal to prohibit ENKA from disassembling and/or destroying and/or selling the steel structure, so that it will be possible to arrange for its return to Gabon"13. By letter dated 2 May 2018, the Respondents then took due note of the Applicant's statement of the fact that the recovery of the steel structure is "separate, independent and without prejudice to its claim for damages" and that it undertakes not to sell or disassemble the structure until the removal date to be set by the Arbitral Tribunal in its final award". On this basis, the Gabonese Republic informed the Arbitral Tribunal that it "is withdrawing its prohibition request"14.
116.
By taking a position in favour of the recovery of the structure, the Respondents have withdrawn the following submission from their Statement of Defence:

"Take due note that the Gabonese Republic will, in its Statement of Rejoinder, provide a reply on the choice it must make to either relinquish the steel structure warehoused in Turkey in custody of ENKA, or recover it, in return for the payment of its value, less the resale price of the steel by weight and at the best price, within a time frame that the Arbitral Tribunal will set according to the contingencies in connection with this recovery"15.

117.
As for the period granted to recover the steel structure to which they undertake, the Respondents found, as a final point, that "the 30-day period requested by the Applicant appears, as already mentioned in the Statement of Defence of 19 January 2018 (§51), too short for the Gabonese Republic, which recommends a period of 90 days"16.
118.
Regarding the submissions relating to taxes, levies and social security contributions, including the counter-claim ("to offset") for payment of said social security contributions, these submissions remained the same in substance.
119.
An additional submission was included in the Amended Statement of Rejoinder due to the exhibit R-20 ("Certificate of Waiver of payment of VAT, corporation tax and withholding tax") presented by the Respondents on 21 February 2018. The Respondents have asked the Arbitration Court to:

"Take due note that the Respondents have provided a Certificate of Waiver of payment of VAT, corporation tax and withholding tax required under the terms and conditions of the Memorandum of Understanding"17.

120.
Regarding the claim for damages, the Respondents initially added the following submission in their amended Statement of Rejoinder:

"Take due note that the Applicant has withdrawn its request for reimbursement of the operational and other expenses incurred since January 2016; its request is now limited to its request for reimbursement of the cost of warehousing the steel structure in Istanbul, which is calculated at €450,000 as of 21 January 2018 (plus the current legal interest on that amount)"18.

121.
On the other hand, another submission was withdrawn because it was no longer relevant after the Applicant specified the nature and amount of its claim for damages:

"Take due note that the Gabonese Republic reserves the right to reply to ENKA's claim for damages when the latter has calculated the alleged loss and substantiated it in the accounts"19.

122.
The Respondents also added another submission in their Statement of Rejoinder regarding the proof of the warehousing costs, but which should clearly have no longer appeared in the amended Statement of Rejoinder given that the evidence requested had been provided by the Applicant in the meantime (see para. 424 and seq. below):

"Find that the sum of € 425,000 claimed in compensation for the warehousing costs does not rely on any invoice paid and that the supplement relating to the management fees in Istanbul is also not substantiated in the accounts, as it is not directly related to the dispute"20.

V. ARBITRATION AGREEMENT AND JURISDICTION

123.
The arbitration agreement on which the jurisdiction of the Arbitral Tribunal to hear the Parties' claims in this case relies is found in Article 20 of the "Memorandum of Understanding on the Termination of the Contracts "concluded between ENKA, on the one hand, and the Gabonese Republic and ANGT, on the other hand, dated 17 December 2015 (hereinafter the "Memorandum of Understanding ", also referred to as the "Settlement Agreement"21 by the Applicant; C-l). Its content is as follows:

"ARTICLE 20 SETTLEMENT OF DISPUTES

20.1 Any dispute relating to or arising out of this Memorandum of Understanding, including any question regarding its existence, validity or termination (the "Dispute") will be initially resolved as indicated in Article 20.2 of the Contracts (Senior Representative Negotiations).

20.2 If unable to resolve the Dispute within 28 calendar days of the date of the request for negotiation, or a period of time jointly agreed on in writing by the Parties, a Party may submit the dispute to arbitration as defined below.

Any dispute arising directly or indirectly out of this Memorandum of Understanding or in connection with it, including all questions relating to its existence, validity or termination, shall be submitted to and settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (the "Rules") by three (3) arbitrators appointed in accordance with said Rules.

The language of arbitration will be French.

The seat of the arbitration will be Geneva (Switzerland).

Neither Party may request provisional measures except pursuant to a decision of the arbitral tribunal appointed in application of this Memorandum of Understanding".

124.
Article 20.2 of Contract No. ANGT/PR/MAUS/01 on the construction of a Mausoleum, a Mosque, a Library and a Museum in Franceville (Gabon), dated 13 March 2013 (C-2), to which Article 20.1 of the Memorandum of Understanding refers, sets out the following:

"The authorised representatives of the Parties are the Chief Executive Officer of ANGT for the Contracting Authority and Mr Gokhan Sagnaklar for the Contractor, as amended from time to time, and will have the necessary authority to enter into agreements on behalf of the Parties that they represent and which apply to them.

If a Dispute arises, it must be submitted to the authorised representatives for discussion by a Party who shall notify the other Party's authorised representatives, stating that it wishes to invite that Party to discussions between the authorised representatives.

The authorised representatives shall meet as soon as possible after receipt of the notice inviting the Parties to discussions between the authorised representatives.

Unless otherwise provided for, the discussions between the authorised representatives will be conducted without prejudice and will be confidential.

If the authorised representatives are unable to settle the dispute through consultation within 28 days of receipt of the notice inviting the authorised representatives to discussions (or if the authorised representatives invited to the discussions between the authorised representatives find that an agreement is unlikely or that it is inappropriate or impossible for them to pursue the discussions), then any Party may refer the dispute to arbitration in accordance with Article 20.3 [Arbitration].

Any decision or agreement resulting from the discussions between the authorised representatives must be confirmed in a written agreement and will be final and binding on the Parties, unless otherwise provided for in the written agreement".

125.
In accordance with the aforementioned arbitration clause, the seat of this arbitration is Geneva, Switzerland22.
126.
This arbitration shall be governed by the provisions of the ICC Rules of Arbitration in force on 1 March 2017 and the provisions of Chapter 12 of the Swiss federal law on international private law [Loi fédérale sur le droit international privé ("LDIP")], as lex arbitri as well as by the Rules of Procedure set by the Arbitral Tribunal23.
127.
The arbitration language shall be French (Article 20.2 of the Memorandum of Understanding)24.
128.
The Arbitral Tribunal was validly constituted. Neither Party has raised any plea of lack of jurisdiction with regard to the Arbitral Tribunal.
129.
In particular, the Respondents did not deny that they are indeed both bound by the Memorandum of Understanding (and therefore by the arbitration clause contained therein) as Parties to it - the Gabonese Republic as Contracting Authority and ANGT as Delegate Contracting Authority. However, there remains the matter of the specific rights and obligations underlying the dispute, as to whether the qualities of Contracting Authority and Delegate Contracting Authority, respectively, create differences with regard to the ownership of the obligations on which the Applicant has based its claims. These matters will be examined, where applicable, in the sections on the merits of the Parties' claims.

VI. ESSENTIAL FACTS

130.
The Arbitral Tribunal shall hereinafter provide a summary of the essential facts.

A. The Parties in the case

131.
The Applicant, ENKA, is a Turkish company based in Be§ikta§- istanbul, Turkey25, whose activities have not been specifically detailed in this arbitration, except in connection with the contract that it had entered into with the Respondents.
132.
The Gabonese Republic and ANGT are the Respondents in these arbitration proceedings. ANGT is a government agency created in 2010 under the supervision of the Presidency of the Gabonese Republic, whose mission was to assist all ministerial departments in charge of public works and infrastructures as well as with the planning and implementation of priority projects for the development of Gabon26.
133.
The Respondents explain that the various contracts that have been concluded by the Gabonese Republic were negotiated between ENKA and ANGT, who then managed them directly27.

B. Contractual relations between the Parties

134.
On 17 December 2015, the Gabonese Republic ("Contracting Authority")28, ANGT ("Delegate Contracting Authority") and ENKA ("Contractor")29 signed a Memorandum of Understanding30 on the termination of the following contracts:

• Contract No. 12ZUA01-043/PR/ANGT: Construction of the Conference Centre in the Cité de la Démocratie in Libreville (signed on 4 June 2013)31;

• Contract No. 12ZUA01-0532/PR/ANGT: Construction of the Presidential Palace in the Cité de la Democratie in Libreville (concluded on 5 May 2013)32 ;

• Contract No. ANGT/PR/MAUS/01: Construction of a Mausoleum, a Mosque, a Library and a Museum in Franceville (concluded on 13 March 2013)33.

135.
Under the first section of the Memorandum of Understanding covering the purposes and the Parties' commitments, "[t]he Parties acknowledge that the progress of the work was obstructed by several late payments due to the financial difficulties of the Gabonese State, for a continuous period of more than 80 days and that in accordance with the stipulations in this Memorandum of Understanding, each Party is released from any obligations with regard to the other under or in connection with the Contracts.

Consequently, both Parties have agreed to definitively terminate their contractual relations and to clear their accounts due under the Contracts, in order to:

- Settle and put an end to all obligations, claims and demands of either Party pursuant to Contract(s), unless otherwise provided for therein;

- Waive all requests subsequent to the service of the notice of termination of the Contract(s)".

136.
The transaction formalised by the Memorandum of Understanding is an amicable settlement agreement within the meaning of Gabonese regulations (Memorandum of Understanding -"Objectives and Commitments of the Parties", paragraph five), intended to give effect to "reciprocal concessions" and "to cover ENKA's interventions, complaints and claims with regard to the three Contracts and to permanently terminate and settle their relations, for the future (Preamble, ad GENERAL AGREEMENT). As a result of the termination of the Contracts, the Gabonese Republic "contractually undertakes to pay as a final settlement, to ENKA, the Settlement Amount "(Article 2, second paragraph).
137.
Under Article 3 of the Memorandum of Understanding, "[...] it is agreed that the Contracting Authority undertakes to pay ENKA a final lump sum of USD 46,010,804 (forty-six million ten thousand eight hundred and four US dollars), net of all taxes and duties34. This amount includes an amount of USD 19,010,804 (nineteen million ten thousand eight hundred and four US dollars), relating to the Steel Payments as set out in article 4.1 ("Conclusion of a loan agreement with 'EXIM Bank'"). The balance, i.e., USD 27,000,000 (twenty-seven million US dollars), [...]" was payable according to a "Schedule of Payments of the Comprehensive Settlement".
138.
In accordance with Article 4.5 of the Memorandum of Understanding, "the Contracting Authority agrees to indemnify ENKA for any tax owed by ENKA in the Gabonese Republic which may arise from the Contracts and from this Memorandum of Understanding as defined in more detail in the Table below the definition of 'Settlement Amount' ".
139.
The Settlement Amount, as defined in the Preamble of the Memorandum of Understanding, takes into account "all adjustments in the reduction of costs invoiced, including all deductions and waivers of VAT and corporation tax apart from the possible conclusion of a loan agreement with EXIM-Bank Trade in Turkey [...]"35.
140.
According to the table entitled "Summary of Transactional Amount— Payable to ENKA in relation of the 3 contracts" [in English in source] ("Breakdown of the Settlement Amount")36, which is shown on page 6 of the Memorandum of Understanding, the Parties agreed on the Amount of the Comprehensive Settlement (term used by the Applicant) based on a fixed balance of USD 47,643,209 ("Balance of Agreed Outstanding Receivables")37 calculated based on the invoices not paid by the Respondents ("Balance of Outstanding Receivables before adjustments")38 with subsequent adjustments.
141.
This table states, at the end, under "SETTLEMENT AMOUNT": "ENKA is, for the purposes of a comprehensive settlement by setting the positive result of the Memorandum of Understanding, willing to not pursue its request for the interest fees and to reduce the total outstanding receivables by a lump sum provided that: a) the EXIM Trade is in place; b) the Memorandum of Understanding is in place; c) the schedule of payments as indicated in the Memorandum of Understanding is secure.
142.
Pursuant to Article 4.3, second paragraph, of the Memorandum of Understanding, "[i]f the Contracting Authority fails to comply with any of its payment obligations relating to the Settlement Amount under this Memorandum of Understanding, ENKA will be entitled to demand the amount of USD 47,643,209 (forty-seven million six hundred forty-three thousand two hundred and nine US dollars) plus interest as set out in the table under the definition of Settlement Amount, without deductions or offset of any kind".
143.
In accordance with Article 4.1 of the Memorandum of Understanding, "[...] ENKA has undertaken to sign the Trade Finance Contract according to the terms stipulated in Appendix 4, for the manufacture and supply of the Steel Structure for the Conference Centre (the 'Trade Finance Contract') and the Contracting Authority undertakes to take out from EXIM Bank Trade in Turkey a loan in the amount of USD 26,696,100 (twenty-six million six hundred ninety-six thousand, one hundred US dollars) (the 'Loan') to cover the sums due for the construction of the Steel Structure for the Conference Centre - Cité de la Démocratie (the 'Trade Finance Agreement') [...]. If the Trade Finance Agreement is not signed and does not come into force within 90 days of the Target Date, the Trade Finance Contract shall be null and void and the USD 19,010,804 (nineteen million ten thousand eight hundred and four US dollars) must be paid by the Contracting Authority as follows: [...] in this case, the Contracting Authority shall take possession, at the warehouse in Turkey, after payment of the final 50% at the latest on 30 July 2016 (together with the payment of the amount in the paragraph above, the "Steel Payments")".
144.
Article 4.3, fifth paragraph, of the Memorandum of Understanding specifies that "[i]f the Contracting Authority is unable to comply with any of its payment obligations relating to the Steel Payments in accordance with Article 4.1, ENKA shall be entitled to claim the full amount of the Steel Payments without deduction or offset of any kind".

C. The Respondents' Payment Obligations

145.
In a letter dated 21 December 2015, ENKA sent ANGT Invoice No. D0001 for an amount of USD 1,000,000 corresponding to "the 1st tranche of the 1st payment of the Memorandum of Understanding signed on 17 December. 2015"39.
146.
The said invoice was paid "within the specified deadlines"40.
147.
In a letter dated 19 January 2016, ENKA sent ANGT Invoice No. D0002 for an amount of USD 4,000,000 corresponding to "the 2nd tranche of the 1st payment of the Memorandum of Understanding signed on 17 December 2015" which was to be paid by 30 January 201641.
148.
In a letter dated 4 February 2016, ENKA observed that Invoice No. D0002 had not been paid and offered ANGT to "meet to understand the possible reasons and the planned solutions to this problem"42.
149.
In another letter dated 4 February 2016, ENKA sent ANGT Invoice No. D0003 for an amount of USD 2,200,000 corresponding to the 2nd payment of the Memorandum of Understanding signed on 17 December 2015"43 which was to be paid by 29 February 2016. In the same letter, ENKA reminded ANGT "that the 2nd tranche of the 1st payment amounting to 'USD 4 million' and payable on '30 January 2016' remains outstanding to date [...]".
150.
In a letter dated 16 March 2016 sent to the Gabonese Republic, in the person of the Chief Executive Officer of Debt, ENKA indicated that "there had been payment delays and especially that of February (which we have not yet received". ENKA asked "respectfully to meet with you in person to discuss and understand the status of the February payment, which is exceptional and outstanding as of today"44.
151.
In another letter dated 16 March 2016, ENKA informed the Gabonese Republic, through the Minister of the Economy, that "we have not received any reply with regard to our letter No. GA202-BM-LET-ENGV-00359 of 4 February 2016" (i.e. exhibit C-11, see para. 148 above)45.
152.
In a third letter dated 16 March 2016, ENKA sent ANGT "Invoice No. TOOO1 for payment of the remaining un-invoiced balance due of the Memorandum of Understanding (MOU) signed on 17 December 2015", for an amount of USD 13,418,328.34 and intended to replace the previous invoices which would be cancelled46. In the same letter, ENKA reiterated the wording of Article 4.5 of the Memorandum of Understanding and "insist [ed] on the fact that due to ENKA's tax and financial obligations, the tax waiver certificates are a prerequisite to the issue of the credit note for the tax waiver provided for in the MOU"47.
153.
Invoice No. D0002 was finally fully settled by the Respondents, several weeks late48.
154.
In a letter dated 26 April 2016, ENKA informed ANGT that "ENKA wishes to, yet again, recall that, according to article 4.5 of the Memorandum of Understanding (MOU), 'The Contracting Authority undertakes to indemnify ENKA for any taxes incurred in the Gabonese Republic arising from the Contracts and its Memorandum of Understanding as set out in detail in the definition of the Settlement Amount '49. In the same letter, ENKA also sent ANGT "a credit note corresponding to the amount of taxes of the MOU on the principle that all of the tax waiver letters in question will be provided as soon as possible [...]"50.
155.
By letter dated 2 May 2016, the Gabonese Republic sent ENKA the confirmation of a payment of USD l,800,000 as partial settlement of the second instalment of the Settlement Amount51.
156.
In a letter dated 26 May 2016 sent to the Gabonese Republic, in the person of the Minister of the Economy, ENKA reiterated its "request for a hearing to evaluate ENKA's status with regard to the Memorandum of Understanding which was signed by the Parties on 17 December 2015"52.
157.
At the end of August 2016, the President of the Gabonese Republic, Ali Bongo, was re-elected for a second term, which led the Gabonese economy into a "high turbulence"53 situation, fuelled both by political and economic reasons54.
158.
On 3 October 2016, the Gabonese Republic informed the Applicant that its economic situation, affected by "some cash-flow difficulties"55, did not permit it to continue to pay the amounts agreed in the Memorandum of Understanding56, in particular as a result of "a certain number of events linked to the current conjuncture on the international raw materials market"57.
159.
In a letter dated 2 November 2016, the Counsel for the Applicant in this arbitration pointed out, among other things, that "the conduct of the Gabonese Republic constitutes a clear breach of the Memorandum of Understanding". ENKA reserved its rights, gave notice to the Gabonese Republic to pay the amount of USD 47,643,209 plus interest in accordance with Article 4.3 of the Memorandum of Understanding and emphasised that "this letter is a communication according to Article 20.2 of the Memorandum of Understanding enabling a Party to submit a dispute to arbitration within 28 days of the date of a request for negotiation"58.
160.
In a letter dated 14 November 2016, the Gabonese Republic acknowledged receipt of the Applicant's letter of 2 November 2016 and informed it of "the resumption of the payments of the instalments due prior to 30 November 2016"59. The Gabonese Republic did not contest the accumulation of arrears and "regret [ed] any inconvenience to your institution and [reaffirmed] the willingness of the Gabonese State to honour the commitments made"60.
161.
In the same letter, the Gabonese Republic also said that "as this involves the signing of a commercial contract with ENKA Construction & Industry, the Gabonese State has been granted a funding of one hundred million (100,000,000) dollars by Exim Bank in Turkey and is making every effort to provide all the documentation required by this bank"61.
162.
At the end of 2016, the economy was weakened by the Gabonese socio-political crisis, marked by "the post-election violence in September 2016". According to The New Gabon, "if one adds to this [situation] an unfavourable international environment, the Gabonese economy, which is dependent on the behaviour of oil sales even though the influence and impact of this raw material have been reduced in the State's budget, is greatly diminished"62.
163.
On 7 March 2017, the Respondents made their last payment of an amount of USD 1,000,00063.
164.
On 21 March 2017, the Applicant (through its Counsel) sent a new notice letter to the Gabonese Republic, emphasising in particular the fact that: "Despite the Republic's reaffirmed willingness to continue to honour its contractual obligations, it has once again failed to address this problem and has made no additional payment, with the exception of a single payment of USD 1,000,000 made on 7 March 2017 [...] This conduct constitutes a clear breach of the Memorandum of Understanding and has already caused considerable losses to ENKA"64. The Applicant nevertheless proposed to restructure the schedule of payments. After having stated its conditions for such a restructuring of the debt - valid until 7 April 2017, the Applicant indicated that: "If our client does not receive written confirmation and the payments due within the set deadlines, it will file a Request for Arbitration with the International Court of Arbitration of the International Chamber of Commerce"65.
165.
On 3 April 2017, the Gabonese Republic replied to the letter from the Applicant dated 21 March 2017 and indicated that the proposals made by the latter to settle the dispute amicably were "being analysed"66.
166.
In a letter dated 11 April 2017, the Applicant informed the Gabonese Republic that: "To date, we have not received a response from you about our offer, which has now expired and is withdrawn. ENKA has therefore undertaken the process of filing a request for arbitration with the Secretariat of the International Court of Arbitration of the International Chamber of Commerce"67.
167.
This arbitration was initiated by the Applicant on 25 May 2017.
168.
In August 2017, the economic and political situation of the Gabonese Republic had not yet stabilised: "despite the formation of an "inclusive" government, there are still tensions"68.
169.
According to an annual analysis published in October 2017 by the rating agency Moody's and reported in the African press, "the credit profile of the government of the Republic of Congo showed a high risk of default"69.
170.
In November 2017, the IMF reviewed the economic and political situation of the Gabonese Republic and prepared a report, according to which the Gabonese Republic was not yet free of turmoil. According to the head of the delegation in question, "the economic situation [...] is still difficult with an expected growth for 2017 that is relatively low, i.e., around 0.8%"70.
171.
In total, the Respondents paid an amount of USD 7,800,000 under the Memorandum of Understanding71.

D. Steel structure of the Conference Centre

172.
To build the Conference Centre in the Cité de la Démocratie in Libreville (Contract 12ZUA01-043/PR/ANGT), the Applicant had to build a steel structure in Turkey, which was then to be transported to Gabon in order to be assembled there.
173.
Before the Parties' decision to stop the work, the Applicant had acquired the steel required for the construction of the steel structure; this construction was finally not completed.
174.
In a letter dated 17 May 2016, ENKA sent ANGT nine copies of the "Trade Finance Contract", signed by ENKA, asking ANGT to return "as soon as possible, a duly signed copy for our archives"72.
175.
In a letter dated 14 June 2016, ENKA proposed to the Gabonese Republic "an alternative financing for the Contracting Authority" with a view to "the effective date planned for the rapid approach of the Trade Finance Contract (i.e., on 30 June 2016)"73.
176.
On 3 October 2016, the company Çimtaş issued an invoice for warehousing the steel structure for the period of 1 August to 30 September 2016 for an amount of € 50,00074.
177.
On 15 December 2016, Çimtaş issued a second invoice for warehousing the steel structure for the period of 1 October to 30 November 2016 for the amount of € 50,00075.
178.
On 15 January 2017, Çimtaş issued a third invoice for warehousing the steel structure for the period of 1 to 31 December 2016 for the amount of € 25,00076.
179.
On 20 February 2017, Çimtaş issued a fourth invoice for warehousing the steel structure for the period of 1 to 31 January 2017 for the amount of € 25,00077.
180.
On 13 April 2017, Çimtaş issued a fifth invoice for warehousing the steel structure for the period of 1 February to 31 March 2017 for the amount of € 50,00078.
181.
On 21 August 2017, Çimtaş issued a sixth invoice for warehousing the steel structure for the period of 1 April to 31 July 2017 for the amount of € 50,00079.
182.
On 4 January 2018, Çimtaş issued a seventh invoice for warehousing the steel structure for the period of 1 August to 31 December 2017 for the amount of € 125,00080.
183.
On 12 January 2018 (transfer value date), ENKA paid Çimtaş the amount of € 830,000 for warehousing the steel structure81.
184.
On 31 January 2018, Çimtaş issued an eighth invoice for warehousing the steel structure for the period of 1 to 31 January 2018 for the amount of € 25,00082.
185.
On 19 February 2018, Çimtaş confirmed to ENKA reception of the bank transfer of € 830,000 and allocation of € 425,000 to pay the invoices presented in exhibits C-35 to C-41, i.e., those up to 31 December 201783.
186.
Insofar as the elements of the steel structure are still warehoused in Turkey, the Applicant will continue to incur the warehousing fees.
187.
To date, the Respondents have failed to make the "Steel Payments" amounting to USD 19,010,804 in relation to the "Trade Finance Contract" referred to in Article 4.1 of the Memorandum of Understanding for the provision, manufacturing and transport to Gabon, by the Applicant, of the steel necessary to complete the building of the steel structure for the Conference Centre in the Cité de la Démocratie in Libreville (Gabon). The Respondents neither signed nor returned the "Trade Finance Contract" (see para. 174 above)84.

E. Certificates relating to VAT, corporation tax and withholding tax

188.
Prior to the entry into force of the Memorandum of Understanding, in a letter dated 25 June 2015, ANGT sent ENKA "the originals of the letters sent by the Gabonese tax authorities" exempting ENKA "from paying VAT and corporation tax in connection with the following contracts:

- No. No. 12ZUA01-0532/PR/ANGT;

- No. 12ZUA01-043/PR/ANGT;

- No. ANGT/PR/MAUS/01"85.

189.
It was specified in the same letter of June 25, 2015 that "ANGT would send "the Certificates of Waiver to the [Gabonese] General Tax Directorate today to ask them to confirm whether the waiver certificates also covered the taxes on subsidiaries and withholding tax."86.
190.
On 3 June 2016, the Gabonese Republic provided the Applicant with certificates by which "the undersigned Director General of Taxation certifies that within the context of the Memorandum of Understanding signed on 17 December 2015 [...], the company ENKA Insaat ve Sanayi, TIN: 778 038 A, is exempted from payment of all of its VAT debt, for an amount of FCFA 582,618,843", as well as "from the payment of corporation tax (IS)" for "the 2013 tax year for an amount of FCFA 360,765,492", for "the 2014 tax year for an amount of FCFA 1,379,818,200 and for "the 2015 tax year for an amount of FCFA 287,909,070"87.
191.
On 21 February 2018, the Respondents presented a "Certificate of Waiver of payment of VAT, corporation tax and withholding tax", dated 15 February 2018 and by which the "undersigned Minister of the Economy, Strategic Foresight and Sustainable Development Planning certifies that within the context of the Memorandum of Understanding signed on 17 December 2015 [...], the company ENKA INSAAT VE SANAYI SA, TIN 778038A is exempted from payment of VAT, withholding tax and corporation tax (IS) as specified in the Memorandum of Understanding"88.

F. Social security contributions

192.
On 5 July 2017, the Applicant was served by the court bailiff a letter from the Caisse Nationale de Sécurité Social ("CNSS"), of which the content was as follows: "[Y]ou are liable for the payment of the amount of one billion eight hundred eighty-eight million seven hundred sixty thousand six hundred and seventeen FCFA (1,888,760,617), corresponding to the amount of social security contributions due from the 1st quarter 2014 to the 4th quarter 2016"89. The Applicant was formally notified to pay said amount within a period of fifteen (15) days from receipt of this notice"90.
193.
In a letter dated 19 July 2017 to the CNSS, ENKA "categorically objected to the payment of said amount on grounds that the Gabonese Republic had exempted ENKA from payment of all charges, taxes and duties" under the terms of the Memorandum of Understanding. ENKA also added that arbitration was pending and that any matters relating to the Memorandum of Understanding should be settled in this context91.
194.
In a letter dated 17 October 2017, the Gabonese State Judicial Agency informed the CNSS that "on 15 June 2017, [...] the company ENKA filed a request for arbitration with the International Chamber of Commerce of Paris, on 24 May 2017, in which it claims in particular payment of an amount of USD 44,550,752" [...] and recalled that on 5 July 2017, your organisation sent a formal notice to ENKA, in which you claimed the amount of FCFA 1,888,760,617 in unpaid social security contributions"92. Recalling the wording of Article 4.5 of the Memorandum of Understanding, the State Judicial Agency asked the CNSS' opinion "on the concern of our Counsel, Mr Georges ARAMA, as to whether social security withholdings on salaries are to be counted as taxes and duties that ENKA should not pay under said Memorandum of Understanding". Furthermore, the State Judicial Agency asked the CNSS to transfer all information relating to social security contributions due by ENKA's subsidiary in Gabon since December 201293.
195.
In a letter dated 24 October 2017, the CNSS replied to the State Judicial Agency, referring to Article 4.5 of the Memorandum of Understanding, that "the waiver invoked by ENKA is not a social but a fiscal one, limited only to the tax covered in the context of the Memorandum of Understanding and the contracts signed between this company and the Gabonese State. Under these conditions, the social contributions due by ENKA's Gabonese subsidiary with regard to the Caisse Nationale de Sécurité Social (CNSS) cannot be included in the taxes and duties covered by this waiver"94. The CNSS also confirmed that the social security contributions due from the 1st quarter 2014 to the 4th quarter 2016 amount to FCFA 1,888,760,617.
196.
To date, the amount claimed by the CNSS has not been settled by the Applicant.

VII. APPLICABLE LAW ON THE MERITS

197.
Article 19 of the Memorandum of Understanding provides that the interpretation, validity and performance of said Memorandum of Understanding will be governed by French law.
198.
The Arbitral Tribunal shall therefore rule on the basis of French law, which the Parties have confirmed in their submissions as well as in the Terms of Reference95.

VIII. DECISIONS ON THE CLAIMS OF THE PARTIES

199.
Both the Applicant that the Respondents assert multiple claims, several of which have evolved over the course of the arbitration. The status of the Parties' respective submissions on which the Arbitral Tribunal is to rule is presented in chapter IV (see para. 101 and seq. above).
200.
Insofaras the respective findings by the Applicant and Respondents are closely linked (and are often counterparts of each other), they will be dealt with together below, by theme, rather than separately. The decisions of the Arbitral Tribunal will then be summarised at the end of the chapter, in Section H for the claims made by the Applicant (see para. 448 and seq. below) and in section I for the Respondents' claims (see para. 456 and seq. below).

A. Claims resulting from the Memorandum of Understanding

1. Basis and amount of the Applicant's receivable

1.1. The Applicant's position

201.
The Applicant maintains that "at the time of signing the Memorandum of Understanding, the Parties agreed to the Amount of the Comprehensive Settlement based on a fixed balance of USD 47,643,209 ("Balance of Agreed Outstanding Receivables") calculated based on the balance of the invoices not paid by the Respondents ("Balance of Outstanding Receivables before adjustments") to which certain adjustments and deductions were made [..,]"96.
202.
The Applicant adds that "in case of breach by the Respondents 'of any of [their] payment obligations relating to the Settlement Amount pursuant to this Memorandum of Understanding', Article 4.3, second paragraph of the Memorandum of Understanding provides that:

ENKA shall have the right to demand the amount of USD 47,643,209 (forty-seven million six hundred forty-three thousand two hundred and nine US dollars) plus interest as defined in the table below under the definition of "Settlement Amount", without deductions or offset of any kind"97.

203.
According to the Applicant, insofar as the Respondents have "not paid the installations relating to the Settlement Amount as required by the Schedule of Payments appearing in Article 3 of the Memorandum of Understanding, apart from the payment of a total of USD 7,800,000"98, and did "not sign the Trade Finance Agreement with EXIM Trade Bank of Turkey before the Target Date of 30 March 201 6"99, the Respondents "were in breach of their payment obligations defined in the Memorandum of Understanding" and "the Applicant is entitled to demand payment of the amount provided for in Article 4.3 of the Memorandum of Understanding"100.
204.
The Applicant also claims - with supporting documents101 - that "the Republic has acknowledged on several occasions to have breached its obligations under Articles 3 and 4 of the Memorandum of Understanding"102.
205.
The Applicant therefore considers that it "is entitled to claim payment in full of the lump sum balance of USD 47,643,209, without deductions or offset of any kind, to which must be added the amount of Interest Charges Waived Under Conditions (or USD 4,707,543) [...]"103.
206.
Insofar as the Respondents have already paid an amount of USD 7,800,000, "the Applicant respectfully requests that the Arbitral Tribunal orders the Respondents to pay the Applicant the amount of USD 44,550,752"104.

1.2. The Respondents' Position

207.
The Respondents acknowledge that under the terms of the Memorandum of Understanding and taking into account the financial difficulties of the Gabonese Republic, "the Parties had agreed that the amount due to ENKA be cleared, on the one hand by means of cash payments up to 27 million US dollars and according to a schedule spread over one year and, on the other hand, by the conclusion with EXIM BANK of Turkey of a loan of USD 26,696,100 to enable the Gabonese Republic to pay ENKA the purchase price of the steel as well as the work on the steel structure, set at USD 19,010,804"105.
208.
Following the conclusion of the Memorandum of Understanding, the Respondents acknowledge that, based on the agreed schedule, the Gabonese Republic has only paid, to date, in total "an amount of USD 7,800,000"106.

1.3. Decision of the Arbitral Tribunal

209.
With regard to the principle and the contractual basis for the Applicant's claim, the Respondents have at no time contested these in their submissions. The Respondents relied on other forms of defence - unforeseeability theory, grace period - which will be examined below, but do not challenge the nature of the Applicant's claim for payment itself.
210.
The Applicant's claim for payment is soundly based on the Memorandum of Understanding, in particular its Article 4.3 which sets out the rule according to which ENKA may demand the payment of a predefined amount if the Gabonese Republic is unable to comply with any of its payment obligations relating to the Settlement Amount pursuant to the Memorandum of Understanding (see para. 142 above).
211.
It is not disputed that the Gabonese Republic did not honour all of its debt in accordance with the Memorandum of Understanding. As necessary, it will be noted that the Gabonese Republic explicitly acknowledged its payment arrears107. Therefore, this breach of contractual obligations triggers ipso jure the payment mechanism provided for in Article 4.3 of the Memorandum of Understanding. The only remaining matter to consider is that of the amount claimed by the Applicant.
212.
The calculation on which the Applicant relies is as follows:

47,643,209 (Article 4.3)

+ 4,707,543 (Interest Charges Waived Under Conditions)

- 7,800,000 (payments received)

= 44,550,752.

213.
Here again, both the calculation and the net amount claimed have never been challenged by the Respondents. This fact alone would be enough to uphold the Applicant's figures.
214.
For good measure, the Arbitral Tribunal nevertheless verified these figures and can confirm them.
215.
With regard to the principal amount of USD 47,643,209, this is expressly mentioned in Article 4.3 of the Memorandum of Understanding and was therefore accepted by the Respondents when they concluded this contract.
216.
With regard to the Interest Charges Waived Under Conditions of (according to the Applicant) USD 4,707,543, the Arbitral Tribunal notes that this amount appears in the calculation table for the Settlement Amount on page 6 of the Memorandum of Understanding, with the following comment: "ENKA calculated Interests costs in accordance with the contracts [sic] terms, however for the purpose of a global seulement [sic] ENKA agreed not to pursue this request as long as the MOU is timely signed and payments mode [sic] in accordance with the MOU". [in English in the source file] It can be deduced from this that if the Gabonese Republic has not honoured its payment obligations, ENKA is entitled to include in its settlement claim an amount of interest which it was willing to waive by way of a concession if the Respondents complied on their side. Article 4.3 of the Memorandum of Understanding clearly states that ENKA can claim the sum of USD 47,643,209 "plus interest as set out in the table under the definition of Settlement Amount, without deductions or offset of any kind".
217.
With regard to the amount of USD 7,800,000 paid by the Gabonese Republic - unchallenged -it should definitely be deducted and reduce the Respondents' debt.
218.
Thus, if the three calculation elements are correct, the net amount claimed by the Applicant is correct.
219.
A question not raised by the Parties is that of whom is to be sued: who is liable for the payment obligation?
220.
The Applicant holds to a payment of USD 44,550,752 by both Respondents, without, however, indicating whether this is a joint and several sentence.
221.
For their part, the Respondents have not contested this finding by asserting, for example, that, if the payment is due, it is only by one or the other of the Respondents, but not both. The Respondents' submissions certainly often refer only to the Gabonese Republic for certain circumstances (moreover, sometimes using the term "the Respondent"108), although without concluding that the Gabonese Republic (Respondent 1) would be the only debtor, to the exclusion of ANGT (Respondent 2).
222.
Article 4.3 of the Memorandum of Understanding expressly refers to the Contracting Authority (therefore the Gabonese Republic) with regard to the Party who must comply with its payment obligations. When these are breached, Article 4.3 of the Memorandum of Understanding simply states that "ENKA shall be entitled to demand the amount of USD 47,643,209", but without specifying whether the amount can only be demanded of the Contracting Authority (the Gabonese Republic) or also of the Delegate Contracting Authority (ANGT).
223.
Given this imprecision and especially due to the lack of any objection by the Respondents, the latter will be sentenced to pay the debt claimed by the Applicant.
224.
For their part, the Respondents emphasised the following submission: "Take due note of the payments already made by the Gabonese Republic in favour of the Applicant, of an amount of USD 7,800,000.
225.
One could question what legal interest there might be in such a submission, whereas the amount of USD 7,800,000 has been duly taken into account in the calculation of the debt owed to the Applicant, by deducting this amount paid to obtain the net debt. However, it must be noted that the Applicant admitted this submission: in its Statement of Rejoinder, it specifically invites the Arbitral Tribunal to dismiss "all of the Respondents' claims and demands in paragraph 67 of their Statement of Defence, with the exception of the first item in this list"109. Yet the first item in the list in question is precisely the aforementioned submission regarding the amount of USD 7,800,000 paid by the Gabonese Republic. In these circumstances, the Arbitral Tribunal has to admit the submission requested by the Respondents.

2. Unforeseeability theory

226.
The Respondents dispute the Applicant's claim resulting from the Memorandum of Understanding on the basis of the principles and rules of law. The Arbitral Tribunal will therefore begin by examining the Respondents' theory before presenting the Applicant's defence.

2.1. The Respondents' Position

227.
The Respondents argue that, insofar as "the Contracts in question, likewise the Memorandum of Understanding, which is related thereto, are public contracts"110, the unforeseeability theory is applicable pursuant to French administrative law and is also upheld in accordance with the "principles relating to international trade agreements (Unidroit, 1994) and the principles of European contract law"111. For the Respondents, "in matters of arbitration, the Arbitral Tribunal has a degree of autonomy in the application of the law chosen by the Parties and the freedom to refer to all 'relevant business customs' "112.
228.
To substantiate the application of French administrative law the Respondents point out that the "Parties wanted 'the validity and execution of this Memorandum of Understanding [to be] governed by French law '(emphasis added)"113. For the Respondents, it is a matter of "complying with the Parties' intention," i.e., "the wish of a foreign public entity to apply French law"114.
229.
In addition, according to the Respondents, "the Memorandum of Understanding is an 'administrative agreement' in that it puts an end to public works contracts"115. Administrative law is therefore "intended to apply, in particular with regard to the evaluation and qualification of the unforeseeability theory"116.
230.
For the Respondents, "the principle of the autonomy of administrative law that is inherent to this law, in principle prevents the application of the rules of private law to situations of public law. This principle is reflected in the unenforceability of the provisions of the Civil Code in matters of administrative contracts"117.
231.
The Respondents consider that they are confronted with an unforeseeable situation, not only due to "the brutal drop in oil prices", but also due to the "consequence of this drop, to which is added the weak recovery in the price over time"118.
232.
According to the Respondents, "if the drop in oil prices had already started at the time the Memorandum of Understanding was signed, which the Gabonese Republic admitted119, the impacts of this crisis on the Gabonese economy could not be foreseen either in their scope or in their duration"120.
233.
The Respondents do not agree with "ENKA's analyses, which rely on a curve showing changes in the price of a barrel of oil for the period from July 2015 to July 2018"121. They hold that "the Parties had not anticipated that the price of a barrel would not return to its highest level and that the rise in oil prices would be so slow, as is, moreover, shown in the diagram presented by ENKA122"123.
234.
The Respondents argue that "the Council of State also admitted that the variation in the price of oil (during the oil crisis in 1973) could give rise to the application of the unforseeability theory"124.
235.
Furthermore, according to the Respondents, the crisis suffered by the Gabonese Republic "was even more significant in Gabon in that the country underwent major problems following the 2016 presidential elections, resulting in a political crisis, itself unpredictable at the time the Memorandum of Understanding was signed, which also contributed to weakening its economic situation"125.
236.
According to the Respondents, "this theory, while it prohibits authoritative revision of the contract by a judge or arbitrator, requires, on the other hand, the Parties to negotiate with a view to adapting the obligations previously undertaken to the new situation, which was not reasonably foreseeable at the time that the agreements were concluded and this even if there was no 'hardship clause' "126. In their Statement of Defence, the Respondents held that "the profound imbalance caused by the economic and political conditions in Gabon, characterised by a very high degree of instability, fully justifies the use of this practice, in order to ensure the continuity of public service"127.
237.
Insofar as the Applicant refused to renegotiate the initial schedule of payments128, the Respondents withdrew their submission aimed at asking the Arbitral Tribunal to "order the Parties to renegotiate the initial payment schedule within two months from the date of the coming award"129 (see para. 113 above).
238.
Furthermore, the Respondents also refer to Article 10 of the Memorandum of Understanding, which "allows for an adaptation of the contractual obligations in the event of an unexpected event which would have the effect of destabilising the contractual obligations"130.
239.
The Respondents argue that Article 10 of the Settlement Agreement, entitled "good faith", is worded as follows:

"The Parties acknowledge and agree that is impossible to foresee in this Memorandum of Understanding all cases that may arise during the performance of the terms and conditions contained in this Memorandum of Understanding and, accordingly, they declare that it is their mutual intent to cooperate in all cases in good faith in order to ensure that this Memorandum of Understanding applies between them in a reasonable and fair manner"131.

240.
The Respondents in this provision "an anticipation of the new Article 1195 of the French civil code, in that it relies on the principle of good faith and loyalty in the contractual relationship and clearly opens the benefit of the renegotiation to either Party"132.
241.
With regard to Article 14 of the Memorandum of Understanding, entitled "Force Majeure", the Respondents argue that "[t]he Gabonese Republic has never heard it pled that it was faced with a case of force majeure - which incidentally, Article 14 of the Memorandum of Understanding prohibited it from doing - but asks if it is a fair application of Article 10 and that a restructuring of its debt may be therefore granted by the Arbitral Tribunal, the Applicant having stated, in its Statement of Rejoinder, that it was not in favour of granting such itself"133.

2.2. The Applicant's position

242.
The Respondent holds that, insofar as neither French administrative law nor the UNIDROIT Principles, nor the Principles of European Contract Law apply to the Settlement Agreement, the unforeseeability theory is not applicable in this case134.
243.
First, according to the Applicant, "French administrative law applies only to French public entities: it is simply not applicable to foreign public entities"135.
244.
Secondly, according to the Applicant, except for two limited exceptions that do not apply in this case, "in accordance with the case law of the Court of litigation, settlements concluded between a private entity and a public entity are, in principle, of a civil nature governed by the rules of private law, and not by administrative law"136.
245.
Thirdly, the Applicant holds that "in French administrative law, unforeseeability can only be invoked by the private party to an administrative contract […]. The theory is thus not applicable to a public entity"137.
246.
Fourthly, the Applicant considers that in French civil law, the unforeseeability theory cannot be invoked in the context of contracts concluded prior to 1 October 2016. Indeed, unforseeability was only acknowledged in French private law by the reform of 10 February 2016, which introduced a new Article 1195 into the French Civil Code. This reform came into force on 1 October 2016 and does not apply to contracts concluded before that date - which excludes it applying to the Settlement Agreement concluded on 17 December 2015"138.
247.
As for Article 19 of the Memorandum of Understanding (Settlement Agreement), the Applicant stresses that it "clearly designates French law as governing the interpretation, validity and performance of the Settlement Agreement, which the Parties confirmed by signing the Terms of Reference" and that "Article 9 of the Settlement Agreement expressly refers to Article 2052 of the French Civil Code in respect of settlements in civil matters"139.
248.
The Applicant concludes that "the Settlement Agreement makes no mention of the UNIDROIT Principles or the Principles of European Contract Law and that "the part of French law governing the Settlement Agreement is therefore indeed French private law"140.
249.
The Applicant maintains that "even considering that these essential barriers to the Respondents' position did not exist, the unforeseeability theory only applies when […] five conditions are met"141; however, these conditions were not fulfilled in this case142.
250.
The Applicant points out that "whereas the Respondents argue that the 'profound imbalance caused by the economic and political conditions in Gabon, characterised by a very high degree of instability, fully justifies the use of [unforeseeability]', they attempt neither to connect this 'context' to the 'balance' of the Settlement Agreement143, nor to explain how the circumstances invoked disrupt the economic soundness of the Parties' reciprocal concessions so profoundly and render the cost of performing the Respondents' monetary obligations so intolerable that the Applicant should be obliged to bear the risks"144.
251.
According to the Applicant, "in addition, the macroeconomic considerations that the Respondents purport to invoke - in particular developments in oil prices and earnings from Gabonese oil exports - have improved over the past two years. Despite drops of respectively 7.7% and 7.3%, in the Gabonese production volumes and oil exports during the first nine months of 2017 (compared to the same period in 2016)145, the oil income of the Republic has, however, increased 22.3% during this period146due to an increase in the price of crude oil, which doubled since February 2016147. Therefore, neither the drop in the production of crude oil in Gabon, nor the changes in the price of oil, could plausibly justify the alleged hardship on which the Respondents rely. Indeed, the price of crude oil increased 104% in two years (between 1 February 2016 and 31 January 2018) and it has risen approximately 25% since the end of the period analysed by the Note by the Ministry of Economy presented by the Respondents in this arbitration148"149.
252.
The Applicant holds that "it was precisely in April 2016 (when crude oil prices recovered and exceeded their level of December 2015150) that the Respondents ceased all payments to ENKA, with the exception of a single instalment to the amount of USD 1,000,000 almost one year later, in March 2017 (which was the last payment received by ENKA to date). Therefore, the Respondents obviously cannot not rely on fluctuations in the price of crude oil to invoke the unforeseeability theory151 "152.
253.
According to the Applicant, the "circumstances that the Respondents now allege [imbalance in the Settlement Agreement] […] already existed at the time of its conclusion. In fact, at the time of the conclusion of the Settlement Agreement, on 17 December 2015, the price of crude had fallen to USD 34.95 per barrel (whereas this price largely exceeded USD 100 per barrel during the summer of 2014) "153.
254.
It follows that "the circumstances invoked by the Respondents as the factual basis of their request based on unforeseeability were fully known and were taken into consideration"154 and "the economic circumstances put forward by the Respondents were the very reason for the termination of the Contracts by the Parties and entering into the Settlement Agreement"155.
255.
Furthermore, the Applicant holds that "the circumstances (financial and political) they invoke are not the reason for the non-performance of their payment obligations stipulated in this Settlement Agreement; it is the political decision of the Republic to allocate its resources elsewhere - a typical example of authoritarian interference (in this case, of the Republic) - that is the cause"156.
256.
Finally, the Applicant deems that the "Respondents expressly assumed the risk linked to the occurrence of outside events" by providing for Article 14 of the Memorandum of Understanding, entitled "Force Majeure"157.
257.
As for the request of the Respondents to renegotiate the Memorandum of Understanding, in its Statement of Rejoinder the Applicant argued that "the Respondents cannot invoke the unforseeability theory to obtain a renegotiation of the Settlement Agreement for an additional and separate reason: unforeseeability can only benefit Parties that have not previously ignored the commitments which they are attempting to renegotiate (the requirements must continue to be performed in spite of the unforseeability, including during the renegotiation) "158. The Applicant thus refused to renegotiate the initial schedule of payments.

2.3. Decision of the Arbitral Tribunal

258.
In accordance with Article 19 of the Memorandum of Understanding, the law applicable to this dispute is French law, which was confirmed in the Terms of Reference (see para. 197 see Above). The Arbitral Tribunal therefore has no reason to depart from the Parties' choice of law and apply the UNIDROIT principles or Principles of European Contract Law instead.
259.
French administrative law cannot apply in this case. This case involves a State - the Gabonese Republic - and a branch of the State - ANGT, within the context of procurement contracts entered into with ENKA in Gabon. However, French administrative law does not apply to foreign public entities159.
260.
Despite the detailed information on French administrative law in their submissions, the Respondents have not produced a judicial decision or doctrinal commentary with sufficient authority to demonstrate that a national administrative law - here French law - can be applied to foreign States and their agencies, in the context of work performed outside of France. The argument made by the Respondents to justify the application of administrative law to the case is in fact based on the Parties' intent in this sense160, as the French Council of State retained in a Colas Djibouti ruling161. However, as the Respondents themselves have observed, this ruling relates to the application of French administrative law to French public persons abroad162, but it does not at all concern the possibility for foreign public persons to submit voluntarily to French administrative law.
261.
It has been established that French administrative judges lack jurisdiction in the presence of contracts concluded, or administrative acts issued, by a foreign public authority163. Therefore, if the French administrative court considers that it lacks jurisdiction to hear disputes relating to non-French activities, it is difficult to see how an arbitration court could consider that it has jurisdiction to apply the same French administrative law to the Group's foreign entities, even if the arbitral tribunal is based in Geneva, in international arbitration.
262.
It is therefore French private law which applies in this case. However, as the Applicant observed, the unforeseeability theory invoked by the Respondents cannot apply to an agreement entered into before 1 October 2016. This theory has been codified with the adoption of a new Article 1195 as part of the reform of the French Civil Code, which became effective on 1 October 2016164. The Memorandum of Understanding having been signed on 17 December 2015, the unforseeability theory cannot be applied insofar as it would be based on the new Article 1195 CC. The Respondents did not provide any possible solutions to this problem.
263.
In any event, even assuming that the unforseeability theory is intended to apply, it appears that its conditions were not met in this case. As pleaded by the Respondents, the circumstances in issue cannot justify imposing an obligation to renegotiate the contract, or its termination, or even its adaptation by the Arbitral Tribunal, by relying on the unforeseeability theory.
264.
First, the Respondents do not clearly state what they intend to gain from the application of the unforeseeability theory. A situation that typically arises from unforeseeability is when price conditions become unbearable in part due to drastic and unpredictable changes in market prices. However, this is not in any way what is held by the Respondents. In reality, the latter are seeking to obtain a payment moratorium, a stay, insofar as the Gabonese Republic is faced with cash flow problems.
265.
Such a request does not correspond to a case of unforeseeability. What the Respondents are seeking does not involve the contract's balance itself. The principle is that a debtor is free to make choices and bears the burden of a miscalculation of its resources. Only if the burden represented by the performance of the service by the debtor is significantly changed such that the intervention of a judge or arbitrator may be justified. This is not the case in this instance. The amount that the Respondents undertook to pay has always been the same since the conclusion of the Agreement. It is not in itself influenced by market conditions, especially not by oil prices.
266.
Secondly, the unforeseeability required by the unforeseeability theory does not occur, either. The evidence provided by the Respondents themselves show that the drop in the oil prices had largely commenced when the Memorandum of Understanding was reached in December 2015165, and the Respondents themselves acknowledge this in their submissions166. As summarised in the document "It happened in 2015: the drop in oil prices", "Over the year, it has lost almost 39%. The barrel fell from USD 60 at the year's start to approximately 36.70 dollars at the end of December 2015"167. All risks related to the drop in the price of oil (declining growth, budget deficits, increased debt, inflation risk, etc.)168 were therefore known at the time the Respondents entered into the Memorandum of Understanding.
267.
It is rather a rise in oil prices that the Respondents could hope for, which indeed occurred between 2016 and 2017169. The Respondents cannot rely on unforeseen circumstances to claim that their commitment undertaken in December 2015 has suddenly become extraordinarily costly during the contract's performance.
268.
Thirdly, the very nature of a settlement such as the Memorandum of Understanding makes application of the unforeseeability theory difficult. The nature of a settlement is to agree to reciprocal concessions to put a definitive end to a dispute, after negotiating the terms of the agreement. Therefore, the Respondents absolutely had the option to dismiss the very principle of an MOU or at least to negotiate the Settlement Amount downwards. However, there is nothing to indicate that this was done. Rather, the Respondents accepted the Memorandum of Understanding with the idea of bringing an end to a dispute with ENKA, which involved paying the amounts agreed on time. When the Gabonese Republic announced to ENKA in October 2016 that it had "accumulated arrears" due to the raw materials market170, it was only acknowledging its poor assessment of its cash flow to honour its contractual obligations. The Respondents should have arranged otherwise and made sure to pay the debt contractually agreed on. There is nothing here that is unforeseeable - if we limit ourselves to a non-wrongful unforeseeability, not caused by the Party who invokes it.
269.
For these reasons, the Respondents' submissions on the application of the unforeseeability theory must be dismissed. The same is likewise applicable for the conclusion aimed at "acknowledging that the Gabonese Republic found itself in an unforeseeable economic and political situation not only at the time the Parties concluded the transaction, but also to date, due to a very slow rise in oil prices, which have never returned to the level of before the Memorandum of Understanding of 17 December 2015". The legal interest of obtaining such a finding, in isolation, is questionable. In any event, the conditions required by this conclusion are not met.
270.
The Respondent also refers to Article 10 of the Memorandum of Understanding. The assertion that this provision authorises an adaptation of the contractual obligations in case an unexpected event occurs which would have the effect of destabilizing the contractual obligations (see - para. 238 above) is incorrect. This is not what is said in Article 10 of the Memorandum of Understanding, or how this provision must be read. The Parties' duty to cooperate in good faith does not include an obligation for the Applicant to apply the unforeseeability theory and suffer consequences (which are also uncertain according to the Respondents' same submissions) that may involve adaptation or even termination of the contract, while what the Respondents want in reality is a stay of payment.
271.
The Arbitral Tribunal sees a possible implementation of the duty to cooperate in good faith of Article 10 for practical aspects, such as those in connection with the steel structure. If applicable, some of ENKA's obligations referred to in Article 5 of the Memorandum of Understanding could be supplemented, if necessary, by requirements concerning the duty to cooperate in good faith. However, we cannot see how such a duty could extend to altering contractual terms as basic as the amounts that the Respondents undertook to pay. Cooperating in good faith does not include having to re-negotiate the amounts contractually agreed, especially in a situation where the Party that invokes this duty has not itself provided the criteria which would justify a revision of the contract "price". An arbitral tribunal cannot interfere too easily in contract law (lex contractus) and change contractual obligations freely agreed, undertakings which, under the terms of the Memorandum of Understanding, should be accomplished rather than adapted.
272.
The situation pled by the Respondents does not arise from force majeure either (reserved by Article 14 of the Memorandum of Understanding). Moreover, the Respondents do not claim that it does (see para. 241 above).
273.
In conclusion, the Applicant's receivable in payment of USD 44,550,752 is not affected by the Respondents' defence relating to the unforeseeability theory.

3. Grace period

3.1. The Respondents' Position

274.
In their Amended Statement of Rejoinder, the Respondents have asked the Arbitral Tribunal, if it should dismiss its request to apply the unforeseeability theory, "to rule in the alternative that the Gabonese Republic will have a grace period of two years from the date of the coming award, in accordance with Article 1343-5 of the French Civil Code, applicable to the dispute"171 (see para. 114 above).
275.
The Respondents argue that, insofar as "the 'grace period' is an 'alternate' request', "there is no contradiction in requesting, in the main proceedings, the renegotiation and restructuring of the debt based on the unforeseeability theory and/or Article 10 of the Memorandum of Understanding and, alternatively, to file a request for a grace period on the basis of former Article 1244-1 of the Civil Code, which then became Article 1343-5, due to the applicability of the French law in this case "172.
276.
For the Respondents, "the conditions for granting such a measure are met, in particular because Gabon has been undergoing, since 2016, a serious crisis and that it never tried to avoid its obligations towards the Applicant"173.

3.2. The Applicant's position

277.
Generally, the Applicant is opposed to granting the Respondents "an extension to meet their obligations"174 : "the Applicant has already granted to the Respondents a period of more than two years (since December 2015) to make the payments provided for in the Settlement Agreement, and it was remarkably patient faced with the Respondents' non-compliance with the Schedule of Payments, under which the last payment was due on 30 November 2016 [...]"175.
278.
Regarding the legal basis on which the Respondents are relying, the Applicant explains that Article 1343-5 new of the French Civil Code ("CC") corresponds to former article 1244-1 "that, strictly speaking, is the one which applies in this case" (by which is meant: if the Arbitral Tribunal should grant a grace period to Respondents, it should base this decision on Article 1244-1 former CC rather than on Article 1343-5 new CC).
279.
The Applicant holds that Article 1343-5 new/1244-1 former CC "only applies if the Settlement Agreement is considered a private contract (and not public or administrative Contract)"176. According to the Applicant, "in administrative law the Parties cannot seek any grace period, whether on the basis of Article 1343-5 of the French Civil Code (which does not apply) or on the basis of an equivalent case-law rule (which does not exist)"177.
280.
The Applicant thus raises the following discrepancy: "the Respondents' alternate request cannot be reconciled with their principal claim based on unforeseeability: the latter assumes the application of French administrative law, whereas the former is only conceivable in the application of civil law"178.
281.
According to the Applicant, "aside from this inconsistency, and even if the Court could apply Article 1244-1 (former) of the French Civil Code (or the new Article 1343- 5), it should dismiss the application for a grace period of two years formed by the Respondents"179, not only "for the same reasons as those which prevent them from invoking the unforeseeability theory"180, but also because of the exorbitant nature of the request filed by the Respondents"181.
282.
The Applicant holds that "the Arbitral Tribunal has a broad power of assessment in the application of these articles [1343-5 new/1244-1 former CC] ; it shall take into account all circumstances, including the debtor's situation as well as 'the creditor's needs'. The Court should also dismiss the Respondents' request if the Respondents are not in good faith or if the circumstances they invoke are unjustified and/or are not beyond their control"182. In this case, the facts183 "show that the Respondents are not acting in good faith, and are in breach of Article 10 of the Settlement Agreement"184.

3.3. Decision of the Arbitral Tribunal

283.
As the submission regarding the granting of a grace period is in addition to the application of the unforeseeability theory, the Arbitral Tribunal may examine it, insofar as the defence of unforeseeability was dismissed. The fact that the Respondent's argument may be potentially contradictory to the position taken in the main submission and the position taken on the alternate submission does not affect the admissibility of either of these submissions. It is by nature admissible to plead a different approach when invoking an alternate submission.
284.
For the same reasons as those which apply to the unforeseeability theory (inapplicability of French administrative law to foreign public entities; see para. 259 and seq. above), the granting of a grace period under French law can only be examined under the angle of civil law.
285.
The legal basis is therefore the former Article 1244-1 CC (replaced by the new Article 1343-5 CC after the reform came into force on 1 October 2016). This provision provides that:

"However, given the situation of the debtor and in consideration of the needs of the creditor, the judge may postpone or stagger the payment of all amounts due for up to a maximum of two years".

In a special and reasoned ruling, the judge may order that all amounts corresponding to postponed payments shall bear interest at a reduced rate that may not be less than the legal rate of interest, or may order that payments should be deducted in priority from the capital.

The judge may also make these measures conditional on the performance by the debtor of actions likely to facilitate or guarantee the payment of the debt.

The provisions set out in this article are not applicable to maintenance payments"185.

286.
The issue is whether the Arbitral Tribunal should postpone (grace period) the payment of sums owing by the Respondents, within the limit of two years, taking into account the debtor's position and the creditor's needs.
287.
It may of course discuss the debtor's situation in this case. The Gabonese Republic can be described as having, or having had, cash-flow problems186. Information relating to the economic and political situation in Gabon provided to the Arbitral Tribunal (see para. 157 and seq. above), presumed to be reliable, effectively shows that the Gabonese State probably had difficulty honouring the payment of some of its debts.
288.
This is very general and is not sufficient for the application of Article 1244-1 CC.
289.
First, the Gabonese State has not demonstrated a form of impecuniosity which justifies the granting of a grace period in this case. No evidence established the specific reason for the failure to pay within the agreed deadlines. A debtor should not, for example, be protected by the granting of a grace period if he himself decided to favour certain other payments to the detriment of other debtors, even for the operation of the State.
290.
Next, and above all, all debtors are not entitled to obtain payment deadlines. In line with the legal texts and Parties' exhibits, it follows both from the law and from case law that only the unfortunate debtor in good faith may hope to obtain such delays. Case law frequently recalls these two conditions:

"The granting of a grace period is reserved for unfortunate debtors in good faith"187;

"With regard to supporting documents presented by the accused, objectivity compels us to note that it is an unfortunate debtor in good faith"188;

"That despite the significant challenges with which he is confronted, Mr. Y continued the partial payment of rents, which allows him to be considered an unfortunate debtor in good faith; he must be ordered to pay the amount of €9,361.66 in late rents, charges and occupation fees as of 31 March 2015 and justified by the rental statement produced"189.

291.
Regarding the condition of unfortunate debtor:

"The unfortunate debtor is one who is currently experiencing difficulties caused by circumstances beyond his reasonable control; they do not allow him to pay immediately"190. "This is a situation similar but yet different to impossibility which would constitute a case of force majeure"191.

"His revenues are modest. This may be, for example, a senior citizen receiving a limited pension and holder of a disability card (CA Orléans, 5 May 1992: JurisData No. 1992043085) or a forest worker in a precarious economic situation. (CA Toulouse, 26 February 1991: JurisData No. 1991-041046), or a divorced person justifying dire financial circumstances (CA Versailles, 6 June 1989: JurisData No. 1989-045730) which may result from the effects of divorce (CA Rennes, 23 January 1998: JurisData No. 1998-041126)"192.

"Payment deadlines have been refused to the debtor whose revenues are correct and has a boat and three cars (CA Orléans, 18 March 1997: JurisData No. 1997-040231)"193.

Recently, the Versailles Court of Appeal dismissed a request for a payment deadline from a company that had not produced "any supporting document as to its current financial position and circumstances" and which was not disputing "the increase in its rental debt"194.

It seems that the judges on the merit perform a strict assessment of the debtor's financial circumstances:

"Contrary to former Article 1244-1 of the civil code, the new 1343-5 of the civil code, Mr Claude X has not proven his current financial position; the fact that he has five children cannot prove his repayment capacity. His request for payment deadlines will therefore be dismissed"195.

292.
Regarding the condition of debtor in good faith:

A debtor in good faith is one who has demonstrated, by their attitude, that he wishes to pay up, making his best efforts to improve the situation.

This would be the case of a tenant that is criticised for having no operations and who has cleared his administrative situation196, or the debtor who, through payments made and not disputed by the creditor, has demonstrated its good faith and reimbursement capacities197.

A debtor that has paid over a third of its debt three days after an injunction is also in good faith, as is one which has handed over to the lessor at the hearing a bank draft for another term, and which then cleared its rents though it was in a precarious financial situation198.

However, a debtor who has been wrongfully late in paying will be considered in bad faith199, as will one who has already been granted generous payment facilities by his creditor200, or one who has availed himself of delaying manoeuvres201 or appeals202.

The debtor with an old debt whose lengthy proceedings allowed it to benefit from payment deadlines for several years and which did not make any particular efforts to settle its debt and pay current expenses, will also be considered in bad faith:

"There is no reason to grant Mr X payment deadlines that would have the corresponding effect of worsening the situation of the other joint owners, especially since the age of his debt will establish his bad faith and, finally, the length of the proceedings have allowed the interested party to benefit from payment deadlines for several years, without making any effort to settle his debt and pay for current expenses"203

In any event, the courts often require that the debtor still be in bonis, i.e. solvent, considering that if it no longer has anything, its claim is not applicable.

When it is clear, the debtor's insolvency is sufficient grounds to deny granting deadlines204.

293.
The Arbitral Tribunal considers that, in this case, these conditions imposed by French case law are not met. Indeed, aside from the first invoice No. D0001 sent on 21 December 2015 and settled within the deadline granted205, the Respondents have never kept up with the schedule of payments as required in the Memorandum of Understanding. From the second invoice No. D0002 sent on 19 January 2016, payment was made several weeks late206, as a result of several reminders by letter. It was therefore very soon after the conclusion of the Memorandum of Understanding that payment difficulties occurred, which in addition to the reasons noted above (supra, § 287) indicates that the "debtor's circumstances" within the meaning of former Article 1244-1 CC is not such that the Respondents can be considered unfortunate debtors in good faith.
294.
Even assuming that the debtor's circumstances can be considered as justifying the granting of a grace period, the fact remains that the application of former Article 1244-1 CC requires consideration of the creditor's needs. However nothing makes it possible in this case to require the Applicant to grant an extension of its receivable, and even less so for a period of two years as requested by the Respondents.
295.
Given the evidence package, the Applicant has already been very patient. It has negotiated with the Respondents and agreed to conclude a settlement in the form of the Memorandum of Understanding; it expected performance. However, by February 2016, late payments were observed (see para. 148 above), delays that accumulated over months, to finally reach the significant amount of nearly USD 45 million (interest included). As of the date of this award, this means that the Applicant has been deprived the benefit of all of its claims for some 2.5 years. One can hardly see what would justify extending the time required for the Applicant to receive its due. The efforts made by the Applicant are sufficient, particularly with its proposal to restructure the debt of March 2017 (see para. 164 above). More cannot be asked of the Applicant.
296.
For these reasons, the Gabonese Republic's request to benefit from a grace period of two years with effect from the present award must be dismissed.

B. Tax obligations arising out of the Memorandum of Understanding

1. The Applicant's position

297.
The Applicant holds that "the Parties' mutual intent at the time of signing of the Memorandum of Understanding was clear: it was to 'settle and put an end to all obligations, claims and demands of one or other of the Parties with regard to the Contracts" and "to waive all requests consecutive to the notification of the termination of the Contract(s)"207.
298.
The Applicant notes that Article 4.5 of the Memorandum of Understanding "highlights and consolidates the common intent of the Parties by formalising the indemnification obligations of the Republic as follows :

The Contracting Authority agrees to indemnify ENKA for any tax owed by ENKA in the Gabonese Republic which may arise from the Contracts and from this Memorandum of Understanding as defined in more detail in the Table below in the definition of 'Settlement Amount'".208

299.
According to the Applicant, "when negotiating and entering into the Memorandum of Understanding, the Parties agreed on the procedure to follow to put into practice the Republic's commitment to indemnify the Applicant for all taxes in the Gabonese Republic, in accordance with Article 4.5 of the Memorandum of Understanding, as follows: the Applicant would file its tax declarations on a monthly, quarterly, and yearly basis, and the Republic would provide Certificates of Waiver from payment of taxes and duties"209.
300.
According to the Applicant, "the Respondents failed in their commitments to the Applicant relating to the tax matters [...] they have not provided to the Applicant the necessary payment waiver for full and effective indemnification"210.
301.
On 3 June 2016, the Gabonese Republic provided the Applicant "after several requests211 [...] a Certificate of Waiver from payment confirming that the Applicant is not obliged to pay its potential tax liabilities with regard to Value Added Tax ('VAT') for an amount of XAF 582,618,843 (approximately USD 1,006, 080). In addition, the Republic provided the Applicant with certificates of waiver of payment relating to its potential tax liabilities for corporation tax ("IS") for the years 2013, 2014 and 2015, at XAF 360,765,492 (approximately USD 622 978), XAF 1,379,818,200 (approximately USD 2,382,702) and XAF 287,909,070 (approximately USD 497,168), respectively"212.
302.
According to the Applicant, said certificates are not sufficient. On the one hand, the "amounts stated in the Certificates of Waiver from payment are incorrectly calculated"213and, on the other hand, "the Applicant to date has received no Certificate of Waiver from payment relating to its potential tax liabilities in respect of IS or VAT for 2016 and 2017"214.
303.
As for "the Certificate of Waiver from payment of VAT, corporation tax and withholding tax"215, presented by the Respondents dated 21 February 2018, the Applicant holds that such certificate is not sufficient to exonerate the Respondents of their tax obligations, "only covers corporation tax, value added tax and withholding tax, and does not include all other categories of taxes and duties, such as (without limitation) the branch remittance tax, and social security contributions"216 (the issue of social security contributions being a claim which is considered separately in this award, in Section C. Below).
304.
In a letter dated 14 March 2018, the Applicant invited the Respondents to produce a new Certificate of Waiver of payment. In its additional Statement dated 19 March 2018, the Applicant added: "In the event that the Respondents do not produce such a certificate before the close of the discussions in these arbitral proceedings, the Applicant respectfully asks the Arbitral Tribunal to rule that the Applicant is liable for any tax or duty arising from the Contracts and Settlement Agreement in the Gabonese Republic, including (without limitation) value added tax, corporation tax, withholding tax, branch remittance tax and social security contributions"217.
305.
The Respondents having indicated in their letter dated 2 May 2018 that the certificate under exhibit R-20 constitutes their final position, the Applicant was invited by the Arbitral Tribunal (letter sent on 23 April 2018) to clarify its submissions218, which it did in a letter dated 11 May 2018. As it summarised in this letter, the Applicant was to "clarify if it seeks a declaration that the Applicant is liable for pay any tax or duty, including any social security contribution, or if it requests that the Respondents be ordered to pay the total amount of all taxes and duties, including the social security contributions, that may be charged to the Applicant".
306.
In its letter dated 11 May 2018, the Applicant is contesting the Respondents' position according to which exhibit R-20 expressly covers the branch remittance tax. For the reasons set out in this letter, the Applicant respectfully requests that the Arbitral Tribunal "orders the Republic to indemnify ENKA for any taxes and duties including all social security contributions, that were charged or that may be charged to ENKA in Gabon in connection with the Contracts and/or the Settlement Agreement, said amount to be, moreover, increased by interest at the legal rate calculated in accordance with French law"219.

2. The Respondents' Position

307.
The Respondents point out that "they had not sent ENKA requests from the tax offices to pay any amounts in respect of VAT or corporation tax, for the years 2016 to 2017 "and that "the reference to a potential tax liability cannot be explained, particularly given that the Applicant had no more operations in Gabon after December 2015 and that it was therefore not liable for any taxes"220.
308.
According to the Respondents, "if the certificates requested by ENKA could not be submitted, it is due to the absence of any VAT or corporation tax declaration by a taxpayer; the tax departments cannot issue certificates for tax exemption which is not due, or claimed"221.
309.
As for the "Certificate of Waiver" of the payment of VAT, corporation tax and withholding tax"222 presented by the Respondents dated 21 February 2018, the Respondents consider that "it was a general certificate of waiver of corporation tax, VAT and withholding tax issued by the Ministry of the Economy of the Gabonese Republic in favour of ENKA INŞAAT VE SANAYI A.Ş. and this, for all three contracts"223
310.
In a letter dated 23 April 2018, the Arbitral Tribunal required the Respondents to clarify whether they were intending to reply to the Applicant's request (letter dated 14 March 2018) inviting the Respondents to produce a new Certificate of Waiver of payment or if the certificate as exhibit R-20 should be considered as reflecting the final position of the Respondents.
311.
In a letter dated 2 May 2018, the Respondents indicated that "exhibit R-20 is the final position of the Respondent constituting exemption from value added tax, corporation tax, withholding tax, and branch remittance tax, that is owed or that may be owed by ENKA under the Settlement Agreement concluded between the Parties"224.
312.
The Respondents ask the Arbitration Court to "Take due note that the Respondents have provided a Certificate of Waiver of payment of VAT, corporation tax and withholding tax required under the terms and conditions of the Memorandum of Understanding"225. This conclusion appears to replace a previous conclusion aimed to "take due note that ENKA has not provided any proof of requests from the Gabonese Republic and/or the tax administration making claims of a fiscal nature, in matters of VAT or corporation tax, for the years 2016 and 2017"226.

3. Decision of the Arbitral Tribunal

313.
The Applicant specified, in its letter dated 11 May 2018, that the final submissions on which the Arbitral Tribunal should decide are: "orders the Republic to indemnify ENKA for any taxes and duties including all social security contributions, that were charged or that may be charged to ENKA in Gabon in connection with the Contracts and/or the Settlement Agreement, said amount to be, moreover, increased by interest at the legal rate calculated in accordance with French law."227 (see para. 305 see above). The foregoing submissions therefore do not have to be taken into consideration (declaratory submission contained in the Amended Request for Arbitration, para. 52 c); submission for conviction contained in the Amended Request for Arbitration, para. 52 d)). The Respondents did not make any particular comments regarding these changes in the submissions.
314.
The Applicant's claims which specifically cover the social security contributions are examined separately in this award (see para. 334 seq. below).
315.
For their part, the Respondents requested in their final submission that the Arbitral Tribunal takes "due note that the Respondents have provided a Certificate of Waiver of payment of VAT, corporation tax and withholding tax required under the terms and conditions of the Memorandum of Understanding"228.
316.
Article 4.5 of the Memorandum of Understanding specifies that "the Contracting Authority agrees to indemnify ENKA for any tax owed by ENKA in the Gabonese Republic which may arise from the Contracts and from this Memorandum of Understanding as defined in more detail in the Table below in the definition of Settlement Amount"229.
317.
The Arbitral Tribunal interprets this provision as creating an obligation for the Gabonese Republic (as Contracting Authority under the terms of the Memorandum of Understanding) to indemnify the Applicant for any tax due by it in connection with the public contracts which had been awarded to it and subsequent transactions contained in the Memorandum of Understanding. Therefore it is necessary that it concerns taxes owed to and, logically, claimed by Gabonese authorities. The obligation to indemnify can only apply to receivables payable against the Applicant.
318.
The Applicant admits it has received certificates of waiver of the payment of taxes, covering "the entirety of its VAT debt"230 according to the text of one of them, and "for corporation tax (IS)" for financial years 2013, 2014 and 2015231 according to the other three (see para. 301 above). These certificates expressly state the amounts (FCFA) covered by the waiver.
319.
The Applicant asserts that these amounts are incorrect (see para. 302 above). However, it does not provide proof of its allegations. The Arbitral Tribunal is not in a position to conclude, on the basis of the specific case file in its possession, that the amounts of taxes mentioned in the tax declarations in exhibit C-24 are incorrect. In any event, the Arbitral Tribunal notes there is on file no evidence anywhere to suggest that the Respondents consider that these amounts are incorrect (hypothetically insufficient) and that they have required or will require payment of a balance for the VAT and/or corporation tax 2013, 2014 and/or 2015.
320.
The question then is whether other taxes that the VAT and corporation tax - or for other exercises 2013, 2014 and/or 2015 - are due. The Applicant itself does not assert it. In its submissions, it talks about "potential tax liabilities "232 or "of all taxes and duties that may be booked as a liability for the Applicant"233.
321.
Specifically, the Applicant complained again, in the amended request for arbitration phase, of not having received any certificate (in addition to exhibit C-24) of waiver of payment regarding its potential tax liabilities with respect to corporation tax or VAT for 2016 and 2017 (see para. 302 above).
322.
After receiving an additional document ("Certificate of Waiver" of the payment of VAT, corporation tax and withholding tax")234 provided by the Respondents dated 21 February 2018, the Applicant upheld that it should receive a certificate covering all categories of taxes and duties other than corporation tax, VAT and withholding tax, such as the branch remittance tax (see para. 303 above). This could be inferred that the Applicant admitted at least indirectly that the certificates it currently holds are sufficient for VAT and corporation tax (as well as the withholding tax) irrespective of the accounting periods in question. That seems however not to be the case, insofar as the Applicant's final submission before this Arbitral Tribunal covers all taxes that were claimed or that may be claimed. The Applicant therefore again includes corporation tax and VAT.
323.
It can hardly be denied that the certificate of 15 February 2018 in exhibit R-20 is, according to its text, sufficient waiver of the payment of VAT, withholding tax and corporation tax (IS) according to the Memorandum of Understanding, without any specific ambiguity, for the financial years in question (the Gabonese office that issued the certificate should have otherwise limited their scope to specific tax years, etc.)
324.
Therefore, we can grant the Respondents' conclusion according to which the Arbitral Tribunal takes due note that the Respondents have provided a Certificate of Waiver of payment of VAT, corporation tax and withholding tax required under the terms and conditions of the Memorandum of Understanding.
325.
Thus, if the certificates under exhibits C-24 and R-20 are sufficient under the terms of the Memorandum of Understanding as tax waivers in respect of corporation tax, VAT and withholding tax, the issue raised by the Applicant can only lie elsewhere and relate to other taxes.
326.
The Applicant expressly refers to the branch remittance tax. It is true that the Memorandum of Understanding refers to the "Branch remittance tax" in the table under the definition of the Settlement Amount235. However, the Applicant does not explain, and can prove even less, how such a tax is due.
327.
The Respondents allege that as the Applicant has no further activities in Gabon since December 2015, it is no longer liable for any taxes (see para. 307 above). The Respondents have given no indication as to any branch remittance tax which may be due for the past.
328.
As stated by the Applicant (see para. 306 above), the Respondents can hardly argue that the certificate dated 15 February 2018 as exhibit R-20 is a waiver of the branch remittance tax. The certificate in question does not say so. Moreover, in their final submission, the Respondents only request the Arbitration Court to "note that the Respondents have provided a certificate of waiver of payment of withholding tax and corporation tax required under the terms and conditions of the Memorandum of Understanding"236 (see para. 205 above), this submission on the certificate as exhibit R-20 does not cover the branch remittance tax.
329.
Thus, it is clear that the certificates provided in fact do not cover all taxes, especially not those that are not expressly referenced in these documents. This is not sufficient however, for the Applicant's claim to be granted ipso iure.
330.
First, and as found above, the Applicant's claim must be dismissed insofar as it concerns claims already covered by the certificates provided. With regard to the taxes not expressly covered, it has not been demonstrated if a branch remittance tax is due or would even be due in the future in relation to the Applicant's operations over the period in question. As for other taxes not identified by the Applicant, the request is therefore completely hypothetical, and they cannot be awarded as there are insufficient legal grounds.
331.
Consequently, the Applicants claim can only be fully dismissed.
332.
It goes without saying that the Respondents would be ill advised to apply, after notification of this award, any taxes or any other duties on periods prior to December 2015, whereas nothing of the sort was mentioned in these proceedings.
333.
When, acting in the name and on behalf of Respondents, their counsellors wrote, in their letter dated 2 May 2018 "exhibit R-20 is the Respondents' final position constituting exemption of the value added tax, corporation tax, withholding tax, and branch remittance tax owed or that may be owed by ENKA under the Agreement Transaction concluded between the Parties"237 (our emphasis); this statement is binding and the Respondents cannot go back on it without infringing the principle of venire contra proprium factum. In such case, the Applicant would be entitled to assert its rights against the Respondents as part of a new procedure.

C. Social security contributions resulting from the Memorandum of Understanding

1. The Applicant's Position

334.
As detailed in the statement of facts of this Award (see para. 192 and seq. above), the Applicant's claim arises from a payment request which it was sent by the CNSS on 5 July 2017 for an amount of FCFA 1,888,760,617 corresponding to the outstanding social security contributions from the 1st quarter 2014 to the 4th quarter 2016238. The Applicant has not paid this amount
335.
The Applicant holds that the claim by the CNSS, "whose actions are attributable to the Republic, to pay "under penalty of forced enforcement measures, the social security contributions calculated on salaries paid between 2013 and 2016 [...], is incompatible with the Memorandum of Understanding"239, "which provides clearly and explicitly that :

(a) the Parties have been released, vis-à-vis each other, from the liabilities and commitments set out in the Procurement Contracts they have concluded together, in particular, in respect of the [...] Costs and Indirect Costs as defined in the various Contracts", which specify that the "Indirect Costs" include (without limitation), "[t]he salaries and eligible costs of the Contractor's administrative staff and labourers well as all costs associated with the staff responsible for the construction"; and that

(b) the Amount of the Comprehensive Settlement on which the Parties have agreed in the. Memorandum of Understanding was calculated "net of all taxes and duties including social security contributions"240.

336.
It is recalled that "the Amount of Comprehensive Settlement had been calculated "net of any taxes and fees" [Article 4.3] and that the amount due to the Applicant in accordance with Article 4.3 of the Settlement Contract is payable "without any deduction or offset of any kind"241.
337.
The Applicant considers that, in the Memorandum of Understanding, "the term "Tax" includes, all "other rights, taxes and charges that are not specifically mentioned elsewhere, in accordance with the law and local regulations"242. "By expressly referring to the VAT, corporation tax and withholding tax as "taxes", it is clear that the Parties meant to exclude the restrictive meaning of the word "tax"243.
338.
The Applicant observes that "the management consulting agencies PricewaterhouseCoopers and Ernst & Young, in their respective presentations of the Gabonese tax environment, include the social security contributions under the category of "Other Taxes", alongside, among others, VAT and customs duties, which is consistent with the Applicant's position"244.
339.
According to the Applicant, "the shared intent of the Parties at the time of signing the Memorandum of Understanding was clear: the Republic has waived any claim against the Applicant for the payment of all social security contributions, and it has committed to indemnify the Applicant against any claim of this nature"245.
340.
As for the opinion of the CNSS expressed in its letter of 24 October 2017 on the question of whether the social security contributions are included in the scope of the tax regime applicable in the Gabonese Republic and provided for in the Memorandum of Understanding246, the Applicant considers that "the position of the CNSS is simply that of an interested Party, which has absolutely no authority to determine whether the French law interprets the term "tax" as including "social security contributions"247.
341.
The Applicant holds that, insofar as the Respondents "form at the same time a counterclaim of conviction and judicial settlement for this same amount [FCFA 1,888,760,617] against the Applicant on behalf of the CNSS", the Respondents are admitting indirectly that, for the purposes of the Settlement Agreement as well as the dispute concerning the social security contributions, the CNSS is an alter ego of the Republic"248; "such a request is prohibited by the Settlement Agreement, according to which the Parties state that they no longer have, in respect of their past relations, claims to submit to each other and this in any capacity or for any reason whatsoever"249. "If the Respondents should, however, deny that the CNSS is the 'alter ego' of the Republic, their counterclaim concerning the social security contributions should be dismissed as the CNSS is party neither to the Settlement Agreement nor to this arbitration"250.
342.
In its letter dated 11 May 2018, the Applicant has asked the Arbitral Tribunal "to order the Republic to indemnify ENKA for any taxes and duties including all social security contributions, that were charged or that may be charged to ENKA in Gabon in connection with the Contracts and/or the Settlement Agreement, said amount to be, moreover, increased by interest at the legal rate calculated in accordance with French law. This includes the obligation for the Republic indemnify the Applicant, in US dollars (the amount would be calculated based on the exchange rate applicable on the date of the Arbitral Award), for the amount wrongfully charged by the Caisse Nationale de Sécurité Social ("CNSS") (namely, FCFA 1,888,760,617) if it were to be paid, as well as all interest and/or penalties that may be imposed on the Applicant in connection with this request, and all additional costs that may be incurred in the event that enforcement measures were to be levied against ENKA's assets, as the case may be"251.

2. The Respondents' Position

343.
The Respondents argue that "the list of exemptions was sufficiently precise to be interpreted restrictively and that social security contributions which, by law, do not fall within the category of taxes or duties, are excluded from the Memorandum of Understanding"252. The Memorandum of Understanding "does not provide for exoneration or waiver of social security contributions that may be due to the CNSS, but only those relative to an exoneration and/or an exemption from VAT, corporation tax and withholding tax, as it resulted in a Table appearing on page 11 of the Request for Arbitration"253.
344.
According to the Respondents, "taxes and social security contributions have different purposes"254.
345.
Furthermore, the Respondents "categorically refute the presentation made by ENKA" "that the Gabonese Republic had used the Caisse Nationale de Sécurité Social (the "CNSS") for the purpose of obtaining payment, on formal notice, of the sum of FCFA 1,888,760,617"255.
346.
Under the terms of the Respondents' final submissions, the Arbitral Tribunal should, on the one hand, "Acknowledge that the Parties neither stipulated nor agreed in the Memorandum of Understanding of 17 December 2015 that the Applicant shall be excused and/or exonerated from any mandatory social security contributions in Gabon or social security contributions relating thereto; and, secondly, 'Consequently, as a counter-claim and to offset the amounts that may be ruled payable by the Respondents, sentence the Applicant to pay said contributions to the amount of FCFA 1,888,760,617, or USD 3,523,035, including the legal interests calculated in accordance with French law, as of the date of the coming Award;"256.

3. Decision of the Arbitral Tribunal

347.
The Applicant filed its final submissions in its letter dated 11 May 2018 (see para. 342 above). The earlier submissions therefore do not have to be taken into account. The Respondents did not make any particular comments regarding these changes in the submissions.
348.
The Respondents' submissions are its counterpart in defence (finding that the Parties did not set out, or agree, in the Memorandum of Understanding that the Applicant shall be excused and/or exonerated from any social security contributions) and include a counterclaim "offsetting any amounts that may be charged to the Respondents" for the payment of the social contributions required by the CNSS to the amount of FCFA 1,888,760,617 (see para. 346 above).
349.
This dispute relating to social security contributions is very different from the one relating to the tax obligations covered in the previous section (B.): while no tax claim has been sent to the Applicant as of today's Award, the Applicant is however subject to a claim for payment of social security contributions by the CNSS dated 5 July 2017 for an amount of CFAF 1,888,760,617, payable within 15 days257. This amount has not been settled. If it is settled by the Applicant, the latter finds that it should be indemnified by the Gabonese Republic.
350.
The Applicant is not claiming that the Memorandum of Understanding expressly addresses the coverage of the social security contributions, as opposed to certain taxes. For both Parties, it is a matter of interpreting said Memorandum of Understanding, to find out if the settlement amount to be paid by the Respondents is net of social security contributions, in the same way that it is net of taxes (Applicant's argument), or if the social security contributions are in fact not included in the Memorandum of Understanding (Respondents' theory).
351.
The Arbitral Tribunal notes that the Parties' intent was not easy to identify. No evidence and a fortiori no accounts, since the Parties did not cause witnesses to be heard, has established, through draft contracts and contemporaneous documents (correspondence, notes meetings, etc.), whether the Parties would have intended to include the social security contributions under the Memorandum of Understanding, or, on the contrary, exclude them.
352.
The Memorandum of Understanding therefore cannot be interpreted in light of other circumstances pled by the Parties.
353.
As the Applicant observed, (see para. 338 above), it is true that auditing firms such as Ernst & Young258 and PricewaterhouseCoopers259 include, in their documentation on Gabon, the social security contributions under the category of taxes ("tax"/"taxes"). This criterion cannot alone be decisive. It is widely known that the social security contributions are sometimes referred to as a tax burden in everyday language. For the Arbitral Tribunal, it is the present case which is the only determining factor, i.e., to find out how the Parties wished to treat the social security contributions under the Memorandum of Understanding.
354.
Although the Applicant does not find it has probative force, the executive management of the CNSS issued an opinion in its letter of 24 October 2017, according to which the fiscal tax must be distinguished from the taxes and other duties for which the Applicant is also benefitting under the Memorandum of Understanding: "tax [...] is a category of compulsory withholding defined as a mandatory fiscal deduction collected by the State to pay for a public service. This is not the case for the social security contribution which is a mandatory social security withholding intended for the funding of social protection"260. As such, we fail to see why such a document should have less weight than Ernst &Young and PricewaterhouseCoopers reports that are highly general and unrelated to this case. If the Applicant seeks to cast doubt on the letter from the executive management of the CNSS of 24 October 2017, it had the possibility of considering this document - established for the purposes of this investigation - as equivalent to a written statement from a witness and summon the witness to a hearing to cross-examine them. However, it is clear that the correspondence in question merely expresses the opinion of the CNSS concerning the nature of social security contributions. It is therefore not likely to prove what the Parties to the Memorandum of Understanding wanted to agree on, concerning in particular what that the Respondents undertook to indemnify.
355.
The Arbitral Tribunal retains four elements that, when connected, are decisive.
356.
First, the Respondents are pleading in this arbitration that "the Applicant had no more operations in Gabon after December 2015 and that it was therefore not liable for any taxes"261.
357.
Secondly, the CNSS sent to the Applicant a letter of formal notice dated 15 June 2017 to claim payment of FCFA 1,888,760,617" corresponding to the amount of social security contributions from 1st quarter 2014 to 4th quarter 2016"262. The letter does not appear to be a simple reminder letter about previous social security contributions that would have been notified at the time when the Applicant was performing its services and working in Gabon to complete the contract it had won. The letter is, oddly, a formal notice issued some 1.5 years after the signing of the Memorandum of Understanding, for contributions apparently covering a period up to the end of 2016 - although the Respondents explain that the Applicant had no more business in Gabon after December 2015.
358.
Nobody seems to have challenged the accuracy of the reference to 4th quarter 2016. The CNSS also refers again in its opinion of 24 October 2017, quoting "attachments" - exhibits that have not been presented in the arbitration263. These exhibits are perhaps those that go with the letter of formal notice dated 15 June 2017. It is a document "STATEMENT OF AMOUNTS DUE" for the period from 1st quarter 2014 to 4th quarter 2016 and a document "STATEMENT OF AMOUNTS DUE ADDITIVE DTS" for the period from 2nd quarter 2013 to 2nd quarter 2014264.
359.
The Arbitral Tribunal deduces from this that "Caisse nationale" of the State of Gabon has, surprisingly, requested the payment of social security contributions especially late in relation to the time of the facts, well after the conclusion of the Agreement and even after this arbitration was initiated (the Request for Arbitration was introduced on 25 May 2017), as the Applicant pointed out in its reply of 19 July 2017265 to the letter of the CNSS of 15 June 2017. The CNSS has not replied to this letter by the Applicant.
360.
Thirdly, one might wonder whether the CNSS has any independence and autonomy such that its actions have no correlation with the activities of the Gabonese Republic. The formal letter of notice from the CNSS of 15 June 2017 was served by a court bailiff on 5 July 2017266. The appointed bailiff indicates in the writ that the CNSS is a "private entity responsible for the management of a public service, enjoys civil personality and financial autonomy, under the supervision of the State"267. Thus, even if the CNSS is a private entity acting as agent of a public service and not a body or branch of the State, it is still true that the Gabonese Republic exercises State-level supervisory authority over it and therefore necessarily has access to its activities, or even controls them.
361.
But there is more: if the Respondents form a counterclaim "by offsetting with the sums that may be charged to the Respondents" bearing specifically on the CNSS debt of CFAF 888,760,617 (see para. 346 above), this means that the Respondents consider that their assets and those CNSS are the same. As highlighted by the Applicant, this circumstance shows the CNSS as a form of alter ego of the Gabonese State. At the very least, the Respondents have sufficient control over the CNSS as they are ready to a potentially cancel an alleged CNSS receivable to offset one of the Respondents' debts which would be established in this arbitration.
362.
Fourthly, if one examines the nature and content of the Memorandum of Understanding268, the conclusion which stands out is that the settlement between the Applicant and the Respondents was supposed to:

- take "account of all cost-cutting adjustments invoices, bills and including all deductions and exemptions VAT, corporation tax (Preamble, ad SETTLEMENT AMOUNT);

- enact "reciprocal concessions" intended "to cover ENKA's interventions, complaints and claims for the three Contracts and to permanently terminate and settle their relations, for the future (Preamble, ad GENERAL AGREEMENT);

- enact the commitment of the Gabonese Republic "to pay as a final settlement, to ENKA, the Settlement Amount" (Article 2, 2nd paragraph);

- release the Parties "vis-à-vis each other, from the liabilities and commitments stipulated in the Procurement Contracts they have concluded together (Article 2, 3rd paragraph);

- secure payment by the Gabonese Republic to ENKA of "a final comprehensive lump sum [...] net of all taxes and duties" (article 3);

- provide a guarantee to the Applicant if the Gabonese Republic fails to comply with any of its payment obligations relating to the Settlement Amount under the Memorandum of Understanding, ENKA shall be entitled to demand the amount agreed, plus interest as defined in the table under the definition of Settlement Amount without deductions or offset of any kind (Article 4.3, 2nd paragraph);

- commit the Gabonese Republic "to indemnify ENKA for any tax owed by ENKA in the Gabonese Republic which may arise from the Contracts and from this Memorandum of Understanding as defined in more detail in the Table in the definition of 'Settlement Amount'". (Article 4.5);

- commit the Parties "to perform in good faith and without reservation this Memorandum of Understanding established on an irrevocable and permanent basis, which, in light of the reciprocal concessions of the Parties, is the final settlement, the Parties declaring not to have, on the basis of their past relationships any claims to make one of the other and, on whatever grounds or for whatever reason (Article 9), supplemented with the duty of good faith of the Parties "to ensure that this Memorandum of Understanding applies between them in a reasonable and fair manner" (clause 10).

363.
In light of such an agreement, the Applicant could start with the idea that everything which might be due to the Respondents in the case of contracts concluded would be discussed and included in the settlement, so that it would be truly the final settlement. It was certainly not envisaged by the Applicant that an entity like the CNSS, with government authority, would file a claim relating to social security contributions 1.5 years after the conclusion of the Memorandum of Understanding. The Applicant was expecting this sort of thing would be resolved by the settlement.
364.
For its part, it was up to the Respondents to do everything they could to discuss the possible direct or indirect debt of the State of Gabon while negotiating the Memorandum of Understanding. The Respondents had to be sure to avoid claims like the one from CNSS, an entity sufficiently controlled by the Gabonese Republic, being made after the conclusion of the Memorandum of Understanding about matters concerning the Applicant's performance of the Contract. If such a claim is made afterwards, the Arbitral Tribunal considers that Article 4.5 of the Memorandum of Understanding must be applied in that it includes the obligation of the Gabonese Republic to indemnify the Applicant for "any tax owed by ENKA in the Gabonese Republic which may arise from the Contracts and from this Memorandum of Understanding".
365.
The Arbitral Tribunal does not consider that the Memorandum of Understanding is incomplete and that such a gap has to be filled. It is rather a matter of interpreting the terms used in the Memorandum of Understanding. This of course mentions the "Taxes" (Article 4.5), "taxes and levies" (Article 3) and therefore uses a language a priori tax-related, but in the overall context stated above, these terms should not be interpreted restrictively and they too should include the social security contributions CNSS claimed afterwards.
366.
If the Respondents intended to exclude the CNSS social security contributions from the scope of the Memorandum of Understanding, it was their responsibility to do so expressly. This conclusion is more appropriate, in light of this case, than interpreting the Parties' intentions as having wanted to cut out the CNSS social security contributions, which would remain separate from the Memorandum of Understanding. Nothing makes it possible to deduct such an intention in view of the available evidence.
367.
Therefore, the Arbitral Tribunal decides that the Gabonese Republic shall indemnify the Applicant for the social security contributions to the amount of FCFA 1,888,760,617, if this amount were to be paid.
368.
Indemnification must be in the currency of the amounts claimed by the CNSS (CFAF). It was not clear on what basis the Applicant may claim indemnification in US dollars.
369.
There is no reason to grant the Applicant's entire submission, which also covers all interest and/or penalties that could be imposed on the Applicant in connection with the CNSS' claim, and all additional costs that may be incurred in the context of enforcement measures on the assets of the Applicant, where applicable. Indeed, either the social security contributions are effectively owed and they should then be paid by the Applicant, which can then be indemnified by the Gabonese Republic, or the social security contributions are not related, so there is no reason for the Applicant to pay them and therefore the question on indemnification sent by the Gabonese Republic is moot. The scenario envisaged by the Applicant in its submission is the application of interest and/or penalties that could be imposed by the CNSS, and all additional costs that may be incurred as part of enforcement measures against the Applicant, which implies that the amount of principal owed of FCFA 1,888,760,617 has not been paid within the applicable period. The Arbitral Court considers that it is inappropriate to protect a Party that has not met its obligation to pay. If the Applicant decides not to settle the social security contributions claimed by the CNSS, it agrees to bear the consequences in terms of charges and interest payable due to its arrears. We do not see why the Gabonese Republic should have to indemnify the Applicant for the costs and interest that the latter could have avoided (mitigation principle). In any event, these costs and interest are hypothetical.
370.
There is no reason not to order the Gabonese Republic to indemnify the Applicant for all social security contributions that may be claimed, i.e. in excess of FCFA 1'888,760,617. This request is in fact fully hypothetical, it would mean applying Article 4.5 of the Memorandum of Understanding (as interpreted by the Arbitral Tribunal) in an abstract manner, outside of any tangible claims made against the Applicant. There is no real legal interest in such a sentence. No mention was made in this arbitration of any risk of application of any other social security contributions. Again, the Respondents would be ill advised to allow the CNSS to claim new social security contributions in addition to those in question, whereas the subject of social security contributions relative to the contracts concluded should have been fully processed at the time of the facts and not years later. In any case, Article 4.5 of the Memorandum of Understanding allows for indemnification under the conditions stated above.
371.
For the same reasons, the Arbitration Court dismisses the submissions of the Respondents on finding that the Parties did not set out, or agree, in the Memorandum of Understanding that the Applicant shall be excused and/or exonerated from any social security contributions. A fortiori, the counterclaim, offsetting with the sums that may be charged to the Respondents, of ordering the payment of said contributions required by the CNSS of FCFA 1,888,760,617 is also dismissed.

D. Steel structure

1. The Applicant's Position

372.
Originally, the Applicant asked that the Respondents be ordered to take possession of steel warehoused in Turkey within 30 days of notification of the award, failing which the Applicant should be able to dispose of the steel in any manner it deems appropriate without being liable to the Respondents269.
373.
Pursuant to the guidelines of the Arbitral Tribunal of 24 February 2018, the Parties discussed terms of a possible recovery of the steel structures by the Respondents, but on 19 March 2018 the Applicant indicated that the Parties had not been able to reach an agreement270. Thus, in its additional Statement dated 19 March 2018, the Applicant confirmed this submission to order the Respondents to take possession of the steel structures within 30 days of the award271, but moreover it "undertook not to sell or disassemble the structure until the removal date to be set by the Arbitral Tribunal in its final award, which the Applicant believes must be set at a period of 30 days from the Final Award"272. The Applicant furthermore pointed out that the steel structures could be dealt with in the final award, without it being necessary to hand down an interim award273. The Applicant reiterated its commitment to time-limited non-dismantling / non-disposal in its letter dated 11 May 2018274.
374.
As for the deadline for the recovery of the steel structures, in its letter dated 11 May 2018 the Applicant specified that it "was ready to reach out to the Respondents and suggested a time limit of 60 days after the arbitral award is handed down"275.
375.
In its amended Request for Arbitration, the Applicant argued that the Respondents should be ordered to recover the steel structure, adding, "this without prejudice to the Applicant's request regarding the payment of damages to compensate it for all of the steel warehousing costs that the Applicant has incurred and continues to incur due to the Respondents' breach of their contractual obligations, as well as all damages likely to compensate the Applicant for the financial losses that it may incur if it should be required to dispose of the steel at its own expense"276.

2. The Respondents' Position

376.
In their Statement of Defence, the Respondents submitted that the Arbitral Tribunal "take due note that the Gabonese Republic will, in its Statement of Rejoinder, provide a reply on the choice it must make to either relinquish the steel structure warehoused in Turkey or recover it, in return for the payment of its value, less the resale price of the steel by weight and at the best price, within a time frame that the Arbitral Tribunal will set according to the contingencies in connection with this recovery"277.
377.
In their Amended Statement of Rejoinder, the Respondents indicated that: "they are opting for the recovery of the steel structure and therefore request the Arbitral Tribunal to prohibit ENKA from disassembling and/or destroying and/or selling the steel structure, so that it will be possible to arrange for its return to Gabon"278.
378.
On 19 March 2018, the Respondents shared the same observation as the Applicant that the Parties had failed to agree on the terms and conditions for recovery of the steel structure by the Gabonese Republic279. The Respondent therefore requests the Arbitration Court to separate the matter of the payment of the amounts claimed by the Applicant from that of the recovery of the steel structure". In lieu of its request for a grace period for the payments it owed, the Gabonese Republic indicated that it will proceed with the recovery of the steel structure within 30 (thirty) days of this Deadline"280.
379.
Following the Applicant's time-limited commitment to non-dismantling and non-disposal in its Additional Statement dated 19 March 2018 (see para. 373 above) and the invitation of the Arbitral Tribunal (letter sent on 23 April 2018) to the Respondents to clarify if they maintained their submission for prohibition (see para. 377 above), the Respondents, in a letter dated 2 May 2018, acknowledged that the Applicant "undertakes not to sell or dismantle the [steel structure] until the date to be set by the Arbitral Tribunal in its final award". As a result, the Gabonese Republic "withdraws its request for prohibition"281.
380.
With regard to the recovery of the steel structure, the Respondents argue that "it would be materially impossible to arrange for the transport of the steel structure in such a short time (30 days) insofar as its transportation can only be achieved by sea and using a special vessel"282.
381.
In their letter dated 2 May 2018, the Respondents reiterated their position, indicating that the 30-day period requested by the Applicant appears [...] too short to the Gabonese Republic, which recommends a period of 90 days"283.

3. Decision of the Arbitral Tribunal

382.
As this involves the arrangements for the proceedings, it will be recalled (see para. 81 above) that the Arbitral Tribunal decided to dismiss the request of the Respondents to separate the question of the payment of the amounts claimed by the Applicant from the recovery of the steel structure. This decision was sent to the Parties in a letter dated 23 April 2018, and justified as follows: "The Arbitral Tribunal considers that the Respondents did not provide sufficient elements to justify an exception to the principle according to which the outcome of the Parties' Claims is decided in a single final award. Separate decisions cannot be reached through orders if they concern the merits. An incidental/partial award is then necessary and a Party wishing to obtain such a decision (with the ensuing consequences in terms of time and costs, and prior review of the project by the Court) must provide convincing reasons, which was not the case in this case".
383.
On the substance, the subsidiary status - on which the Arbitral Tribunal should decide - of the dispute relating to the steel structure can be summarised as follows.
384.
The Applicant intends that the Respondents take possession of the steel structure and within a period that seems to have been accepted at 60 days after the final award, which the Arbitral Tribunal understands as meaning from the date of notification of the final award.
385.
The Respondents have granted their approval to return the steel structures, which the Arbitral Tribunal interprets as equivalent to undertaking to recover it within a certain time period, which period the Respondents recommend setting at 90 days.
386.
Given the agreement of the Parties on the principle of recovering the steel structure in Turkey and bringing it back to Gabon, there is therefore cause to order such a recovery in accordance with the submissions of the Applicant.
387.
The only question is whether it is the Respondents that must be sentenced to this recovery or only the Gabonese Republic. The Arbitral Tribunal notes that in fact, in the Respondents' submissions, recovery was often mentioned as being the responsibility of the Gabonese Republic. It appears however that the Respondents were not opposed to the Applicant's submission for conviction, which aims at both. If they were intending to plead that only the Gabonese Republic had to be sentenced to recovering the steel structure, it was up to them to explain clearly and justify such an objection on the merits. Failing this, the Arbitral Tribunal has no other choice but to rule on the matter against both Respondents.
388.
With regard to the recovery period for the steel structures, the Arbitral Tribunal considers that a time limit of 60 days from the notification of the award is sufficient. Insofar as the Applicant had initially requested 30 days and the Respondents called for 90 days, a compromise solution of 60 days seems appropriate. The Respondents provided no evidence as proof that a period of fewer than 90 days would not be justified. Their argument about the time required to arrange transportation by sea, using a special ship, concerned the 30-day period (see para. 380 above).
389.
Regarding the transitional period until the recovery of the steel structures, the Applicant has undertaken not to sell or dismantle the latter, to which the Respondents agreed, waiving their submission to prohibit dismantling, destruction or sale of the steel structure, so that it would be possible to bring it back to Gabon. Therefore, the Arbitral Tribunal takes due note and sees no need to rule in its award on something that has not been requested for this transitional period prior to the notification of the award and within the 60 days that follow.
390.
However, as requested by the Applicant, it will be specified that if the Respondents fail to recover the steel structure within the deadline of 60 days, the Applicant may dispose of the steel in any way it deems appropriate, which should be understood to mean without the risk of any liability to the Respondents.
391.
Regarding the Applicant's submission on damages ("this without prejudice to the Applicant's request regarding the payment of damages to compensate it for all of the steel warehousing costs that the Applicant has incurred and continues to incur due to the Respondents' breach of their contractual obligations, as well as all damages likely to compensate the Applicant for the financial losses that it may incur if it should be required to dispose of the steel at its own expense"284), the following distinction must be made.
392.
The warehousing charges are specifically demanded as damages and are subject to a detailed review of claims with amounts presented by the Applicant in Section F of the judgment (see para. 403 seq. below).
393.
However, "all damages likely to compensate the Applicant for the financial losses that it may incur if it should be required to dispose of the steel at its own expense" are not detailed, or quantified and even less proven. This submission is far too general and hypothetical to be granted. It is rather a type of choice reserve that a true claim. Therefore, the Arbitration Court can only dismiss this part of the submission.

E. Breach by the Respondents of their contractual obligations arising out of the Memorandum of Understanding

394.
The first of the Applicant's submissions aims to have the Arbitration Court declare that the Respondents are in breach of their contractual obligations arising out of the Memorandum of Understanding (see para. 103 above).
395.
This submission was expressly not addressed first in this award, but only at this stage, after decisions had been made on the other claims. It is in fact within the context of the other claims that it was considered whether the Respondents were in breach or not of the Memorandum of Understanding.
396.
The Respondents were not opposed to this declaratory submission.
397.
In any event, it should be noted that the Respondents are in breach of their contractual obligations arising out of the Memorandum of Understanding.
398.
First, the Respondents have not paid the instalments relative to the Settlement Amount as required by the Schedule of Payments appearing in article 3 of the Memorandum of Understanding (apart from the payment of a sum of USD 7,800,000) and have not signed the Trade Finance Agreement with EXIM Trade Bank in Turkey. The Respondents were therefore in breach of their payment obligations defined in the Memorandum of Understanding, which enabled the Applicant to request the payment of the amount provided for in Article 4.3 of the Memorandum of Understanding.
399.
Secondly, the Respondents then infringed Article 4.3 of the Memorandum of Understanding by not paying the amount set out therein, either in capital or interest.
400.
Thirdly, by not taking possession of the steel structure, which resulted in warehousing costs for the Applicant, the Respondents again were in breach of the Memorandum of Understanding.
401.
There is no need to consider the question of whether the contractual obligations were infringed by the Gabonese Republic and/or ANGT. It has been shown above (see para. 219 and seq. above) that the Respondents did not raise any objection to being sued and did not attempt to identify the liability of either of the Respondents. In these circumstances, it can be considered that the Memorandum of Understanding has been breached by the Respondents.
402.
It therefore follows that the Applicant's declaratory submission must be granted.

F. Damages

1. The Applicant's Position

403.
In a letter dated 19 February 2018, the Applicant withdrew "its request for reimbursement of the operational expenses and other costs that it has incurred since January 2016 due to the Respondents' breach of the Settlement Agreement. Consequently, the Applicant's claim for damages, which was in addition to its request for the payment of the amounts due under the terms of the Settlement Agreement, is now limited to its request for reimbursement of the cost of warehousing the steel structure in Istanbul, which is calculated at €450,000 as of 31 January 2018 (plus the current legal interest on that amount). As it has already noted, the Applicant will continue to incur these costs, as a rate of € 25,000 per month, as long as the Respondents continue to be in breach of their obligation (which they do not contest) to take possession of the steel structure"285.
404.
The Applicant's final claims for damages relating to the warehousing costs of the steel structure in Istanbul therefore amount (in capital) to:

- € 450,000;

- € 25,000 per month. Although the Applicant's position is not entirely clear on this point, the Arbitral Tribunal understands that the amount in question:

o runs from the month of February 2018, insofar as the main claim of € 450,000 is presented as calculated "as of 31 January 2018 ;

o runs for as long as the Applicant continues to incur such warehousing costs because the Respondents have not recovered the steel structure.

405.
For good measure, it should be noted that the Applicant had initially not calculated its claims for damages286. Subsequently, the Applicant quantified these at USD 1,641,184287. The Arbitral Tribunal takes due note that the decision that it is requested in this final award is limited to one amount in capital of € 450,000, plus € 25,000 per month since February 2018.
406.
In support of its request, and in response to the Respondents' request that proof of the amount of warehousing costs incurred be provided, the Applicant initially presented eight invoices prepared by the company Çimtaş (Istanbul) for storing the steel structure for the period from 1 August 2016 to 31 January 2018288 (see para. 176 and seq. above).
407.
Following other objections raised by the Respondents (see para. 410 below), the Applicant then produced, in its letter of 19 February 2018 "proof of payment of the invoices attached to its Statement of Rejoinder as Exhibits Nos. C-35 to C-41"289.

2. The Respondents' Position

408.
Regarding the limitation of damages sought by the Applicant to the costs of warehousing the steel structure, after withdrawal of the other claims, the Respondents specify that they "take note of this waiver and accept it"290. In their closing submissions, the Respondents ask the Arbitration Court to:

" [t]ake due note of the Applicant's withdrawal of its request for reimbursement of the operational and other expenses incurred since January 2016; its request is now limited to its request for reimbursement of the cost of warehousing the steel structure in Istanbul, which is calculated at €450,000 as of 21 January 2018"291.

409.
As to the costs of warehousing the steel structure, the Respondents initially observed that they were not justified and they reserved the right to reply to the claim for damages when the Applicant had calculated and substantiated the alleged damages in the accounts292.
410.
After the Applicant had filed the invoices as exhibits C-34 t o C-41, the Respondents argued that the proof of payment of these invoices has not been provided, such that the Arbitral Tribunal may not take them into account in compensating the alleged loss293. The Respondents made a formal statement on these grounds, as follows: "Take due note that the sum of €425,000 requested in compensation for warehousing does not rely on any invoice paid [...]"294.
411.
To the extent that, in its letter of 19 February 2018, the Applicant presented "exhibits C-44 and C-45 from which it follows that the warehousing costs as of 12 January 2018 have been settled by ENKA to CIMTAS"295, the Respondents indicated they would withdraw their previous objection296.
412.
In their closing submissions, the Respondents, did however, request the Arbitration Court to:

"Take due note that the sum of €425,000 requested in compensation for warehousing does not rely on any invoice paid [...]"297.

413.
In their Additional final submissions dated 19 March 2018, the Respondents also added that "the Gabonese Republic has noted the Applicant's statement, which indicates that the cost of warehousing the steel structure in Turkey amounted to €25,000 per month"298.

3. Decision of the Arbitral Tribunal

3.1. Withdrawal of the request for reimbursement of operational and other expenses

414.
The first question that arises is whether a decision is necessary with regard to Applicant's withdrawal of its claim for damages i.e. moving from a claim of USD 1,641,184 to a claim of €450,000, plus €25,000 per month since February 2018.
415.
The Arbitral Tribunal notes in fact that, in addition to the costs of warehousing of the steel structure, the Applicant initially claimed for "operating costs and other costs"299, which the Respondents were challenging300.
416.
It is clear that, by its letter of 19 February 2018, "the Applicant withdraws its request for reimbursement of operating and other expenses it has incurred since January 2016 due to the breach of the Settlement Agreement by the Respondents" and that the "claim for damages by the Applicant, in supplement to its request for the payment of the amounts due under the terms of the Settlement Agreement, is limited now to its request for reimbursement of the costs of warehousing of the steel structure in Istanbul"301. It is also clear that the Respondents took note of this waiver and accepted it (see para. 408 above).
417.
However, the Respondents also made a formal submission (see para. 408 above) asking the Arbitral Tribunal to [t]ake due note that the Applicant has withdrawn its request for reimbursement of the operational and other expenses incurred since January 2016; its request is now limited to its request for reimbursement of the cost of warehousing the steel structure in Istanbul, which is calculated at €450,000 as of 21 January 2018"302. So the question is whether the Arbitral Tribunal can and should grant this new submission.
418.
The Arbitral Tribunal takes note that the new submission described above was included in the Respondents' Amended Statement of Rejoinder of 27 February 2018. However, the Applicant was again heard subsequently, including through its additional Statement dated 19 March 2018. In its letter of 5 June 2018, the Arbitral Tribunal observed that no Party had filed any supplementary or additional requests to the most recent submissions, adding: "In its letter of 23 April 2018, the Arbitral Tribunal had specified that if one or other of the Parties felt it had other important points that need to be completed before a Final Award can be made, it should send them in the form of a reasoned request by 2 May 2018".
419.
We must therefore note that the Applicant was in no way opposed to the Respondents' new submission of 27 February 2018. Therefore, this submission must be granted. Moreover, the Arbitral Tribunal sees no reason why it should dismiss this submission which limits itself to taking note of the withdrawal of part of a claim for damages, now limited to the reimbursement of the costs of warehousing of the steel structure. The Respondents may have a legal interest in such a statement. This interest was in any event not denied by the Applicant. However, the Arbitral Tribunal notes that the Respondents do not derive any consequence from this withdrawal as to the costs of arbitration (see para. 470 below).

3.2. Costs of warehousing the steel structure

420.
The second question that arises is whether the Applicant's claims for damages limited to the costs of warehousing of the steel structure are founded and should be granted.
421.
The Arbitral Tribunal notes that the Respondents have not identified any legal objections concerning the legal basis relied on in this request and seem therefore to admit that the Arbitral Tribunal might order payment of damages in principle. Only the amount of this claim has been disputed.
422.
With regard to the amount of € 450,000 on 31 January 2018, invoices were presented by the Applicant303 and their payment was also corroborated by supporting documents304. On this basis, the Respondents expressly stated in their amended rejoinder that the warehousing costs "were settled by ENKA"305 and they raised their previous objection306 (see para. 411 above).
423.
It is therefore necessary to note that this amount is admitted and may be granted to the Applicant.
424.
However, in their final submissions, the Respondents request the Arbitral Tribunal to: "Take due note that the sum of €425,000 requested in compensation for warehousing does not rely on any invoice paid [...]"307 (see para. 412 above). This conclusion is not compatible with the acceptance referred to above according to which the Respondents acknowledge that warehousing costs were settled, their objection being lifted.
425.
The Arbitral Tribunal attributes this inconsistency to a clerical error, resulting from the following circumstances. The substantive submission that the sum of € 425,000308 claimed for compensation for warehousing costs is not based on any paid invoice was contained in the Statement of Rejoinder dated 15 February 2018. The Respondents were then authorised to provide an Amended Statement of Rejoinder, which they did on 27 February 2018. In their Amended Statement of Rejoinder, the Respondents added a paragraph 71 that contains the acknowledgement that warehousing costs were settled and lifting the initial objection again. This should have lead the Respondents to modify their submissions and remove the substantive submission from their Statement of Rejoinder dated 15 February 2018. However such an amendment has not been made to the amended Statement of Rejoinder of 27 February 2018. This is evidently an oversight.
426.
In any event, the conclusion of the Respondent noting that the sum of € 425,000 [corrected : € 450,000 on 31.1.2018] does not rely on any invoice paid may not be granted since the amount in question has been evidenced by exhibits309. This submission will therefore be dismissed.
427.
With regard to the amount of € 25,000 per month, from February 2018 until the Respondents take possession of the steel structure (see para. 404 above), the Respondents do not appear to object to the monthly amount of € 25,000. In particular, they "acknowledged such a sum in their last entry dated 19 March 2018 (see para. 413 above). If the Respondents did not concur with this amount, they should have disputed this rather than taken note of it.
428.
In addition, the monthly amount of € 25,000 is established by documents310, since all the invoices prepared by Çimtaş from August 2016 to January 2018 (see para. 406 above) accrue to - if they are broken down monthly - € 25,000 per month. The fact that the Respondents accept an amount of € 450,000 on 31 January 2018 resulting from monthly amounts of € 25,000 logically means that subsequent monthly amounts of € 25,000 were accepted, so long as such costs are incurred.
429.
It is not contested that the steel structure is still warehoused in Turkey as of today's final award and that this is still generating costs for the Applicant. It is therefore justified to compensate the latter for its monthly costs of € 25,000, from February 2018, namely in addition to the € 450,000 on 31 January 2018. This on the other hand, raises the question as to which date such a monthly amount must be paid.
430.
The Applicant argues that its claim runs as long as it needs to incur such warehousing costs because the Respondents do not take possession of the steel structure (see para. 404 above). The Arbitral Tribunal has decided earlier in this award that the steel structure must be reclaimed by the Respondents within 60 days of the judgment's receipt (see para. 386 seq. above). There is, however, no guarantee to date that the steel structure will be taken back in this period of 60 days. It is therefore possible that the Applicant will have to assume the warehousing costs of € 25,000 beyond such a deadline.
431.
Therefore, the Arbitral Tribunal considers it appropriate to grant the conclusion sought by the Applicant, in specifying it so that the Applicant is compensated in the amount of € 25,000 monthly for warehousing costs charged to it by the company Çimtaş, from February 2018 until the steel structure is fully taken back by the Respondents.
432.
However, the full recovery of the steel structure by the Respondents - even late - is not the only scenario to consider. In the event that the Applicant decides to dispose of the steel at the end of the 60 day deadline if the Respondents have not recovered the steel structure, as it is entitled to(see para. 390 above), it goes without saying that there will be more warehousing costs to be borne by the Respondents. The conclusion sought by the Applicant must therefore be specified in this measure: the Respondents must be sentenced to compensate the Applicant in the amount of € 25,000 monthly for warehousing costs charged to it by the company Çimtaş from February 2018 until full recovery of the steel structure by the Respondents or until the time that the Applicant has disposed of said structure at the end of the 60 day repossession deadline.

G. Interest

1. The Applicant's Position

433.
Regarding its claim for payment of USD 44,550,752 on the basis of Article 4.3 of the Memorandum of Understanding, the Applicant has concluded: "plus current legal interest on this amount, determined in accordance with French law" (see para. 103 above).
434.
Regarding its tax and social security contributions claims, the Applicant has concluded in its letter dated 11 May 2018 that the Arbitral Tribunal orders the Republic of Gabon to compensate it for any taxes and duties, including all social security contributions, that were claimed or that may be claimed from t ENKA in Gabon in connection with the Contracts and/or the Settlement Agreement, to be accompanied by interest at the legal rate calculated in accordance with French law (see para. 108 above).
435.
Regarding its claim for damages, the Applicant has invoked a "request for reimbursement of costs of warehousing the Steel Structure in Istanbul, which is quantified at € 450,000 on 31 January 2018 (plus legal interest on that amount). As it has already noted, the Applicant will continue to incur these costs, of € 25,000 per month, as long as the Respondents continue to be in breach of their obligation (which they do not contest) to take possession of the Steel Structure "311 (our emphasis). The Applicant has therefore only requested interest on the amount of € 450,000.
436.
The Applicant did not request interest on its costs and expenses.
437.
The Applicant has not indicated from what respective dates the interest discussed above would run.

2. The Respondents' Position

438.
The Respondents did not make any particular comments on the claims for interest by the Applicant.
439.
They have claimed the payment of social security contributions required by the CNSS of FCFA l,888,760,617 "i.e., USD 3,523,035, with legal interests, determined in accordance with French law, as from the award to be passed" (see para. 109 above).
440.
The Respondents have not requested interest on their costs and expenses.

3. Decision of the Arbitral Tribunal

441.
Interest may be claimed at the legal interest rate provided for under French law for unpaid debts.
442.
The Arbitral Tribunal having granted the Applicant's main claim of USD 44,550,752, it is also appropriate to order the payment of interest on this sum as requested by the Applicant.
443.
The formal notices of the Applicant312 have been for different amounts to that ultimately claimed in the arbitration. It follows that these same formal notices can only be considered as having, within the meaning of Article 1153 para. 2 CC, a purpose that is identical to the amounts claimed in these proceedings. The Arbitral Tribunal thus considers that interest cannot accrue since these formal notices and it decides that such interest shall accrue as of the filing of the Request for Arbitration, i.e. from 25 May 2017 until full payment has been made.
444.
Regarding the Applicant's tax claims, these were dismissed. As to the social security contributions, having specified that "this amount must also include interest at the legal rate calculated in accordance with French law" presupposes that the Arbitral Tribunal has ordered the Gabonese Republic to indemnify the Applicant for its expenses. However no amount has been paid by the Applicant to date. It therefore cannot claim interest on unpaid amounts.
445.
Regarding the damages claimed by the Applicant, the latter is legally entitled to claim legal interest on the amount of € 450,000 that it was allocated (see para. 435 above). This amount having been calculated as of 31 January 2018, the interest shall run from this date until full payment has been made313.
446.
However, the Applicant not having required specific interest for its claim of € 25'000 per month for as long as the Respondents have not taken possession of the steel structure, it is not appropriate to order payment of interest on these amounts.
447.
As for the Respondents' counter- claims for payment of the social security contributions demanded by the CNSS in the amount of FCFA 1,888,760,617, these were dismissed. Thus they cannot give rise to legal interest.

H. Findings on the Applicant's claims

448.
The statement according to which the Respondents were in breach of their contractual obligations arising out of the Memorandum of Understanding, was granted.
449.
The order to the Respondents to pay the Applicant the amount of USD 44,550,752, in accordance with Article 4.3 of the Memorandum of Understanding, plus the current legal interest on this amount, determined in accordance with French law (from 25 May 2017) was granted.
450.
The Applicant's submission asking the Arbitral Tribunal to order the Gabonese Republic to indemnify it for any taxes and duties that were charged or that may be charged to it in Gabon in connection with the Contracts and/or the Memorandum of Understanding, said amount to be increased by interest at the legal rate calculated in accordance with French law, was dismissed.
451.
However, the submission relating to social security contributions was admitted, but only in part, with the Gabonese Republic being required to indemnify the Applicant for the amount of FCFA 1,888,760,617 claimed by the CNSS, if it were to be paid.
452.
Ordering the Respondents to take possession of the steel structure was granted, with a deadline of 60 calendar days from the date of notification of this award, failing which the Applicant may dispose of said steel structure in any way it deems appropriate.
453.
Ordering the Respondents to pay damages was granted insofar as it concerns the refund of the warehousing costs for the steel structures in Istanbul, charged by the company Çimtaş and quantified at € 450,000 as of 31 January 2018, plus the current legal interest on this amount determined in accordance with French law (from 31 January 2018), as well as an amount of € 25'000 per month, as of February 2018 until the Respondents have taken full possession of the steel structure. Other submissions of a compensatory nature relating to the steel structure if it is not removed by the Respondents have been dismissed.
454.
The matter of the Applicant's fees and disbursements is dealt with in the next section (see para. 458 and seq. below).
455.
Finally, as no other decisions were requested, there is no cause to hand down (in accordance with the Applicant's final submission) any other decisions that the Applicant may request and that the Arbitral Tribunal may find fair and appropriate.

I. Finding on the Respondents' claims

456.
Most of the Respondents' claims were dismissed. Only those submissions were granted according to which the Arbitral Tribunal:

- takes due note of the payments already made by the Gabonese Republic in favour of the Applicant, of an amount of USD 7,800,000.

- takes due note that the Respondents have provided a Certificate of Waiver of payment of VAT, corporation tax and withholding tax required under the terms and conditions of the Memorandum of Understanding

- takes due note that the Applicant has withdrawn its request for reimbursement of the operational and other expenses incurred since January 2016, its request now being limited to the reimbursement of the cost of warehousing the steel structure in Istanbul.

457.
The matter of the Respondents' fees and disbursements is dealt with in the next section (see para. 458 and seq. below).

IX. ARBITRATION COSTS

458.
In accordance with Article 38, paragraph 4 of the Rules, the final award by the Arbitral Tribunal sets the arbitration costs and decides which Party is liable for their payment or in what proportion the costs are shared between them.
459.
According to Article 38, paragraph 1, of the Rules, the arbitration costs include the arbitrators' fees and expenses and the ICC administration costs set by the Court, as well as the reasonable costs incurred by the Parties for their defence in connection with arbitration.

A. Determination and allocation of the arbitration costs

1. Arbitrators fees and expenses and ICC administration costs

460.
By decision of 30 August 2018, the Court has set the arbitration costs at USD 670,000, to the exclusion of the reasonable costs incurred by the Parties314.
461.
The provisional amount, set by the Court at USD 670,000, was fully paid by the Applicant315. The Respondents did not pay their share of this provision.

2. Reasonable costs incurred by the Parties

462.
Regarding the lawyers' fees and other costs incurred by the Parties, the Applicant filed its Statement of Expenses dated 15 June 2018. The Respondents filed their Statement of Expenses dated 16 June 2018.
463.
The Applicant claims a total amount of USD l,292,110.49 (including USD 670,000 as a provisional amount for the arbitrators' fees and expenses and the ICC administrative expenses). Its lawyers' fees and other expenses can be broken down as follows:

(a) Lawyer's costs and fees

Costs and fees for Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden") USD 616,553.63

(b) Other expenses incurred by the Applicant

Translation costs (Geotext) USD 5,556.86

I.e. a total of USD 622,110.49.

464.
The Respondents have claimed a total amount of € 36,000 (excluding taxes) for the fees of their lawyers, the firm KGA. The Respondents "have no other fees to declare"316.
465.
The Arbitral Tribunal considers that the aforementioned fees and expenses are reasonable pursuant to Article 38, paragraph 1, of the Rules. The Arbitral Tribunal is aware of the significant difference in the professional fees of the Parties' counsels. That difference - quite prevalent in practice - is not likely to make the highest fees unreasonable per se. The reasonable nature or otherwise does not follow from a simple comparison of the invoiced fees paid by each Party. Each Party is entitled to call upon the services of a counsel of its choice and one means of remuneration by a Party that is low shall not necessarily lead the other Party to do likewise. The only things that count are the nature and the scale of the fees charged in this case.
466.
The Arbitral Tribunal has carefully examined the expense claims presented by the Applicant, which contain a detailed description of the "PROFESSIONAL SERVICES BY SKADDEN"317. The time spent and hourly rates applied are consistent with the contract concerned and the Arbitral Tribunal sees no reason to reduce them, since the Applicant has fully borne these costs. Skadden's disbursements and the translation costs are also considered reasonable.
467.
A fortiori, the Respondents' fees are also deemed reasonable.

3. Allocation of the arbitration costs

468.
The ICC Rules expressly do not set the criteria to be applied when allocating the arbitration costs between the Parties. It is acknowledged that the arbitral tribunal has broad powers of discretion in this regard.
469.
As a rule, the costs of arbitration will be borne by the Party that succumbs. However, this practice is not intangible and the arbitrators remain free to decide otherwise at their discretion, by allocating, where appropriate, these expenses between the Parties if they believe that such distribution is reasonable in relation to circumstances of the case.
470.
In this case, as summarised above (see para. 448 and seq. above), the Applicant has essentially won its case, be it with regard to the number of submissions admitted or to the amounts awarded. In particular, the Applicant prevails with respect to the debts arising from the Memorandum of Understanding, the steel structure, and the major part of the damages claimed. It is partially successful with regard to the social security contributions, but not to the tax obligations. Other more minor, declaratory submissions or ones regarding compensation, were dismissed. Furthermore, the Applicant has withdrawn its request for reimbursement of the operational and other expenses incurred since January 2016; its request is now limited to the reimbursement of the cost of warehousing the steel structure in Istanbul. However, this withdrawal is of little consequence to the Respondents as to the arbitration costs.
471.
The main part of the Respondents' claims were dismissed, as summarised above (see para. 456 and seq. above). The only submissions admitted are minor declaratory ones.
472.
In light of the foregoing and pursuant to its discretionary powers, the Arbitral Tribunal finds that the Respondents shall assume the costs described below.
473.
Regarding the arbitrators' fees and expenses and the ICC administrative costs, the Respondents shall pay 85% of these amounts. These amounts having been set by the Com at USD 670,000, the total borne by the Respondents is USD 569,500. Given the provision of USD 670'000 paid by the Applicant, the Respondents shall repay an amount of USD 569,500 to the Applicant.
474.
For lawyers' fees and other reasonable costs incurred by the Parties, the Respondents shall bear all of their defence fees.
475.
As for lawyers' fees and other expenses reasonably incurred by the Applicant, which amount to USD 622,110.49, the Respondents shall bear 75% of these. Insofar as the Respondents are already paying their own expenses, the percentage of 75% of the Applicant's fees is justified with respect to the proportion of costs borne that it represents compared with total costs and fees of the Parties to this arbitration. The Respondents will therefore pay an amount of USD 466,582.86 to the Applicant in this respect.
476.
In all, the Respondents will therefore be sentenced to pay the Applicant an amount of USD 1,036,082.86 (USD 569,500 + USD 466,582.86) as a contribution to expenses it has incurred in this arbitration.

X. DECISION

477.
The Arbitral Tribunal,

Having considered the Parties' claims,

Having reviewed the facts of this case,

Having assessed the admissible evidence,

Having given the Parties sufficient opportunity to be heard,

Having applied the rules of law and procedure,

In light of the foregoing reasons,

Decides:

Claims resulting from the Memorandum of Understanding

(a) Takes due note of the payments already made by the Gabonese Republic in favour of the Applicant, of an amount of USD 7,800,000.

(b) Orders the Respondents to pay the Applicant the amount of USD 44,550,752, in accordance with Article 4.3 of the Memorandum of Understanding, plus the current legal interest on this amount, determined in accordance with French law, as of 25 May 2017 until full payment has been made.

Tax obligations and social security contributions

(c) Takes due note that the Respondents have provided a Certificate of Waiver of payment of VAT, corporation tax and withholding tax required under the terms and conditions of the Memorandum of Understanding.

(d) Orders the Gabonese Republic to indemnify the Applicant for the amount of FCFA 1,888,760,617 claimed by the Caisse Nationale de Sécurité Social (CNSS), if it were to be paid.

Steel structure

(e) Orders the Respondents to take possession of the steel structure within 60 calendar days from the date of notification of this award, failing which the Applicant may dispose of the structure in any way it deems appropriate.

Damages

(f) Takes due note that the Applicant has withdrawn its request for reimbursement of the operational and other expenses incurred since January 2016, its request now being limited to the reimbursement of the cost of warehousing the steel structure in Istanbul.

(g) Orders the Respondents to pay the Applicant the amount of € 450,000, plus current legal interest on this amount, determined in accordance with French law, from 31 January 2018 until full payment has been made.

(h) Orders the Respondents to indemnify the Applicant in the amount of € 25,000 monthly for the warehousing costs charged to the latter by the company Çimtaş from February 2018 until the Respondents have taken full possession of the steel structure or until such time that the Applicant shall dispose of said structure at the end of the 60day repossession period.

Other claims

(i) Declares that the Respondents were in breach of their contractual obligations arising out of the Memorandum of Understanding.

(j) Dismisses any other or contrary submissions by the Parties.

Arbitration costs

(e) Orders the Respondents to pay the Applicant USD 1,036,082.86.

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