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Addendum

Introduction

1.
This Addendum, made pursuant to Art. 36 of the ICC Rules, sets out the Tribunal’s decision on the Respondents’ Application1 (made pursuant to Art. 36(2) of the ICC Rules on April 20, 20202) arising from the Final Award dated March 20, 2020 (received by the Parties on March 21, 2020). Words, phrases and expressions defined in the Final Award are adopted herein. The details of: (a) the Parties and their Counsel; (b) the Tribunal; (c) the Agreement to Arbitrate; and (d) the choice of Governing Law, as set out in the Final Award are adopted herein. The Parties agreed, by their emails to the Tribunal of June 12, 2020, that this Addendum may be notified3 to them electronically.
2.
Art. 36 of the ICC Rules provides as follows:

Article 36: Correction and Interpretation of the Award; Remission of Awards

1) On its own initiative, the arbitral tribunal may correct a clerical, computational or typographical error, or any errors of similar nature contained in an award, provided such correction is submitted for approval to the Court within 30 days of the date of such award.

2) Any application of a party for the correction of an error of the kind referred to in Article 36(1), or for the interpretation of an award, must be made to the Secretariat within 30 days of the receipt of the award by such party, in a number of copies as stated in Article 3(1). After transmittal of the application to the arbitral tribunal, the latter shall grant the other party a short time limit, normally not exceeding 30 days, from the receipt of the application by that party, to submit any comments thereon. The arbitral tribunal shall submit its decision on the application in draft form to the Court not later than 30 days following the expiration of the time limit for the receipt of any comments from the other party or within such other period as the Court may decide.

3) A decision to correct or to interpret the award shall take the form of an addendum and shall constitute part of the award. The provisions of Articles 32, 34 and 35 shall apply mutatis mutandis.

4) Where a court remits an award to the arbitral tribunal, the provisions of Articles 32, 34, 35 and this Article 36 shall apply mutatis mutandis to any addendum or award made pursuant to the terms of such remission. The Court may take any steps as may be necessary to enable the arbitral tribunal to comply with the terms of such remission and may fix an advance to cover any additional fees and expenses of the arbitral tribunal and any additional ICC administrative expenses.

The Respondents’ Application

3.
The Respondents’ Application has two aspects:

(a) Respondents request that the Tribunal clarify the Final Award, specifically by issuing the declaration requested by Respondents in Paragraph 67(v)(a) of the Terms of Reference and clarifying that (i) Claimant’s claims have been adjudicated in this proceeding; and (ii) Claimant is precluded from continuing to prosecute and must, therefore, dismiss the Panama Action forthwith.

(b) With regard to the apportionment of costs in the Final Award, Accordingly, Respondents seek interpretation of the Final Award regarding the indemnification available to them under Section 5.4 of the HMA given the paucity of discussion of this critical claim in the Final Award. Alternatively, Respondents will understand that they need to commence a separate proceeding to enforce the indemnity under Section 5.4 of the HMA.

The first aspect of the Respondents’ Application

4.
The Tribunal recalls para. 67(v) of the Terms of Reference and the full prayer for relief sought by the Respondents:

(v) An award declaring that:

(a) the claims asserted by Claimant in the action pending in the Second Civil Court of the First Judicial Department of Panama, captioned Hotel TOC, Inc. v. Trump Panama Hotel Management LLC (the "Panama Action") arise out of or relate to the HMA and, as such, were subject to binding arbitration before the ICC; and

(b) by virtue of Claimant’s failure to assert the claims pending in the Panama Action in this proceeding, such claims are barred pursuant to Section 9.1.1 of the HMA.

5.
The Tribunal recalls that this prayer for relief was denied4 in the Final Award. Thus, at a threshold level, the Respondents’ Application, insofar as it seeks that the Tribunal to "issue" the declaration sought at para. 67(a) of the Terms of Reference, must fail. This is because the prayer for relief has already been adjudicated upon by the Tribunal and Art. 36 of the ICC Rules does not authorise, much less even envisage, a change of mind by a tribunal so as to revoke a prior substantive dispositive decision on a claim, and substitute a new one.
6.
As regards the remaining part of the first aspect of the Respondents’ Application, namely, requesting the Tribunal to "clarify" that (i) Claimant’s claims have been adjudicated in this proceeding; and (ii) Claimant is precluded from continuing to prosecute and must, therefore, dismiss the Panama Action forthwith, these are declarations and orders which were never sought in this arbitration5. The Tribunal has carefully reviewed the prayers for relief advanced by the Respondents in the Terms of Reference and in their subsequent submissions, and nowhere can such claims be located. As the Respondents did not ask the Tribunal for such relief, it is now too late to seek them and the procedure under Art. 36 of the ICC Rules does not authorise, much less envisage, such an outcome. Thus, the balance of the first aspect of the Respondents’ Application must fail.
7.
However, the Tribunal has taken careful note of the positions adopted by the Parties in their respective submissions (particularly the final para. of p. 2 of the Claimant’s Comments whereby it suggests that its view of the Final Award’s disposition of the prayers for relief permit it to pursue the Panama Action) and considers that it is appropriate for it to elaborate on certain matters as follows.
8.
The first aspect of the Respondents’ Application focuses solely on para. 67(v)(a) of the Terms of Reference. Isolating the language contained in that para. 67(v)(a) would give a reader an incomplete picture of the claim which was actually sought. If one looks solely at the language contained in that para. 67(v)(a) it has the appearance of a free-standing declaration. However, looking solely at that language would miss a critical conjunctive word, namely, "and" (emphasis added), which immediately follows the semi-colon at the end of that para. 67(v)(a). The word "and" binds together the two sub-parts of that para. 67(v) together, and, thus, they were not alternatives or free-standing prayers for relief.
9.
The Tribunal recalls (e.g. from para. 64 of the Terms of Reference) that the Respondents advanced an argument in the arbitration that the Claimant had not brought into this dispute the claims that the latter had pursued before the Panamanian Courts. This, as the Respondents argued, was then a predicate matter to the request to the Tribunal to dismiss substantively the claims before the Panamanian Courts. The rationale for this position was rooted in the HMA, clause 9.1.1 (in relevant part):

Each Party shall submit all Disputes then known to that party within the same arbitration proceeding and any such claim that is not so submitted shall be barred.

10.
The Respondents’ argument was: (a) because the Claimant had not brought in this arbitration claims which the latter had pursued in the Panamanian Courts; and (b) further, that those claims fell within the ambit of this arbitration and the Agreement to Arbitration (by which this ICC arbitration was conducted), therefore the "barring" language of clause 9.1.1 of the HMA was duly triggered to substantively dispose of the Claimant’s claims pending before the Panamanian Courts.
11.
However, at the hearing, the Respondents performed a volte face and presented an argument which advanced a case that the Claimant had, in fact, made the same claims in this arbitration as it had before the Panamanian Courts. This was discussed in the Final Award as follows:

134. However, the Claimant’s invocation of the Panamanian Courts is not entirely without consequence as clause 9.1.1 of the HMA includes the following provision:

Each Party shall submit all Disputes then known to that party within the same arbitration proceeding and any such claim that is not so submitted shall be barred.

135. The Respondents say that this clause operates against the Claimant and point out that the issues which were put before the Panamanian Court were not put into this arbitration. However, in closing at the hearing the Respondents placed a table before the Tribunal which recorded the various complaints in the Panama Action (extracted from R-83) and placed them side by side with extracts from the Claimant’s Memorial. That exercise made it clear to the Tribunal that the Claimant had asserted the same claims in the arbitration as it had in the Panamanian Courts; and thus the consequential bar for failure to assert them in the arbitration does not arise. Of course, the Claimant’s claims have not fared well in this arbitration in all respects as set out herein given that many of them have been denied by the Tribunal.

12.
As is as clear as could be, admitting of no doubt whatsoever, the Tribunal found "that the Claimant had asserted the same claims in the arbitration as it had in the Panamanian Courts", and, therefore, the consequential bar for failure to assert them (as per clause 9.1.1 of the HMA) did not arise. That was the predicate for the denial of the precise relief, read as a whole and not parsed in isolation (which would be apt to confuse), as sought by the Respondents at para. 67(v) of the Terms of Reference. No doubt whatsoever could possibly arise from the reading of the Final Award in that respect.
13.
The Tribunal recalls that it granted the reliefs that it granted, and denied the reliefs that it denied, whether advanced by the Claimant or the Respondents. That was the outcome of the arbitration, and that remains the outcome of the arbitration. The denial of the first aspect of the Respondents’ Application should in no way be read, therefore, as giving tacit concurrence to the Claimant’s position as set out in its Comments which articulated a position that it may pursue its claims in the Panamanian Courts. The Tribunal repeats that it decided the claims which were put before it, and that was all that it did. It is not for the Tribunal to adjudicate on anything further than that, and consequences, if any, which might or might not flow from its final disposition of the claims which were put before it, are matters for debate elsewhere.

The second aspect of the Respondents’ Application

14.
The Tribunal recalls that the Parties advanced claims for costs (i.e. their legal and other costs and expenses). Those claims for costs were finally decided upon by the Tribunal in the Final Award. Thus, at a threshold level, the Respondents’ Application, insofar as it seeks that the Tribunal were to interpret the Final Award in a manner which would either revisit the decision on the award of costs or allow them to commence a second arbitration to recover their costs through the substantive means of clause 5.4 of the HMA, must fail. This is because the prayer for relief has already been adjudicated upon by the Tribunal and Art. 36 of the ICC Rules does not authorise, much less even envisage, a change of mind by a tribunal so as to revoke a prior substantive dispositive decision on a claim, let alone to permit a further arbitration to decide that claim. The Parties’ claims for costs as advanced in the arbitration were finally decided, and that is that.
15.
In any event, and for the avoidance of any doubt whatsoever, the Tribunal notes that clause 5.4 of the HMA was expressly recorded, in full, in the factual background at para. 70 of the Final Award. Further, in the context of claims for costs, the Tribunal has again reviewed the Respondents’ two sets of submissions in that regard and confirms that clause 5.4 of the HMA did not, and could not have come to the Respondents’ aid in seeking to recover their legal and other costs and expenses from the Claimant. The Tribunal recalls clause 5.4 of the HMA:

5.4 Wrongful Termination. Each Party acknowledges that the other Parties would suffer substantial damages, would be irreparably harmed and would not have an adequate remedy at law in the event that this Agreement is wrongfully terminated. Accordingly, each Party agrees that in addition to all other rights and remedies each Party shall be entitled to seek injunctive relief to prevent a wrongful Termination of this Agreement by any other Party, in addition to any other remedy to which the non-terminating party may be entitled at law, in equity, or under this Agreement. Each Party further agrees to indemnify and defend the other Parties against, to hold the other party harmless from, and to reimburse the non-terminating Party for, any loss, cost, liability or expense of any nature suffered by the non-terminating Parties, their Affiliates or any of their respective officers, directors, employees or agents as a result of any such wrongful Termination. Promoter/Developer further agrees to indemnify Operator for any loss, cost, liability or expense of any nature suffered by Operator as a result of the wrongful Termination of this Agreement that is caused by any actions or inactions of Promoter/Developer, in its capacity as a Hotel Unit Owner, Hotel Amenities Units Owner, or Hotel Asset Manager, including but not limited to (i) the failure of Promoter/Developer to vote in favor of (a) the components of the Annual Plan with respect to expenditures necessary to maintain the Operating Standard of the Hotel, the Building or any other Component, or (b) any other expenditures necessary to maintain the Operating Standard of the Hotel, the Building or any other Component, (ii) the failure of Promoter/Developer to pay Assessments, fees or other charges under the Co- Ownership Regulations, Hotel Unit Maintenance Agreement or Hotel Amenities Units Maintenance Agreement, or (iii) the breach by the Promoter/Developer of the Pre-Opening Agreement or Promoter/Developer License Agreement. In addition, to the extent that Owner is required to indemnify Operator as a result of the wrongful Termination of this Agreement by Owner, Owner and Owners Meeting agree that they will take such actions as are required to charge and collect from the individual Hotel Unit Owners and Hotel Amenities Units Owners for the amount of any indemnification payment required to be paid to Operator under this Section 5.4, whether through Assessments under the Co-Ownership Regulations, charges under the Hotel Unit Maintenance Agreement or other similar agreement with Hotel Unit Owners, or any other lawful means.

16.
The Tribunal does not consider that this clause extends to the recovery of legal costs and expenses in the event of the Parties falling out and suing each other (even if arising from a wrongful termination) before an ICC tribunal and the word "any" is not so all-encompassing in that regard. Taken to its logical conclusion, it would mean that any arbitration concerning the consequences of a wrongful termination by the Claimant would have resulted in payment of all of the Respondents’ legal and other costs regardless of the relative outcome of such a dispute. Also, the Tribunal recalls the contents of footnote 5 to the Final Award which reference clause 9.1.8 of the HMA:

9.1.8 The arbitrator shall determine the proportion of the expenses of such arbitration which each party shall bear; provided, however, that (subject to Section 9.2) [which is irrelevant for present purposes as that references a process before an expert] each party shall be responsible for its own legal fees.

17.
That demonstrated to the Tribunal6 that the Parties had applied their minds in a particular way to the specific question of their respective legal fees, which overcomes any contrary suggestion by another provision, such as clause 5.4 of the HMA.
18.
As already noted above, the claims for costs have been definitively and finally decided. Nothing further needs to be said.

Costs

19.
On April 30, 2020, the ICC Court fixed an additional advance of USD 23,000.00, subject to later readjustments to cover additional fees and expenses of the Tribunal and ICC administrative expenses related to the Respondents’ Application. That additional advance was paid by the Respondents. On June 11, 2020, the ICC Court fixed the costs of the Application at USD 23,000.00.
20.
The Respondents, in light of the outcome of their Application, are to bear the foregoing costs in full.
21.
Finally, the Claimant seeks its legal and other costs in addressing the Respondents’ Application. The Tribunal denies that application as it sees no reason to depart from the Parties’ unambiguous intentions concerning legal fees, as expressed in clause 9.1.8 of the HMA (as noted above at para. 16).

Conclusion & Order

The Tribunal hold, finds, and declares:

1. The Respondents' Application is denied. To the extent necessary, the denial in the Final Award of the Respondents' prayer for relief sought at para. 67(v)(a) of the Terms of Reference is clarified to the extent set out at paras. 4-13 inclusive as set out above. To the extent necessary, the denial in the Final Award of the Respondents' claim for costs is clarified to the extent set out at paras. 14-18 inclusive as set out above.

2. The Parties are ordered to bear their own legal and other costs, and the Respondents are ordered to bear the costs and expenses of the ICC and the Tribunal in the amount of USD 23,000.00.

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