• Copy the reference
  • Tutorial video

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

Award on Costs

Table of abbreviations

Additional Reply Claimant’s Reply dated 17 June 2019 as filed by Claimant on 26 June 2019 (designated by Claimant "Claimant’s Statement of Claim") (the designation of submissions in the present Award on Costs follows the designation of submissions in the timetables issued by the Tribunal)
Agreements Frame Repair Service Agreement dated 5 August 2009 (CX001) and the Nokia Original Accessory Partner (NOAP) Agreement dated 26 January 2012 (CX002)
Answer Respondent’s Answer dated 22 May 2018
Claimant Technoservice Limited, P.O. Box 5867-00200, Nairobi (Kenya)
Frame Repair Service Agreement Frame Repair Service Agreement dated 5 August 2009 (CX001)
ICC Court International Court of Arbitration of the ICC
ICC Arbitration Rules Rules of Arbitration of the International Chamber of Commerce in the version in force as of 1 March 2017
ICC General Counsel General Counsel of the ICC
ICC Secretariat Secretariat of the International Court of Arbitration of the ICC
ICC Secretary General Secretary General of the ICC International Court of Arbitration (as opposed the Secretary General of the ICC)
MMO Microsoft Mobile Oy
NOAP Agreement Nokia Original Accessory Partner Agreement between the Parties dated 26 January 2012 (CX002)
President of the Tribunal President of the Arbitral Tribunal for the present case
Chairman of the Court Chairman of the ICC International Court of Arbitration
Rebuttal Respondent’s Rebuttal dated 29 July 2019
Request for Arbitration Claimant’s Request for Arbitration dated 26 March 2018
Respondent Nokia Corporation, Karaportti 3, 02610 Espoo (Finland)
Reply Claimant’s submission titled "Claimant’s Statement of Claim", dated 17 June 2019 (the designation of submissions in the present Award on Costs follows the designation of submissions in the timetables issued by the Tribunal)
Statement of Claim Claimant’s submission titled "Claimant’s Submission on the Request for Bifurcation", dated 14 January 2019
Statement of Defence Respondent’s Statement of Defence dated 7 March 2019
Stock and Asset Purchase Agreement Stock and Asset Purchase Agreement between Respondent and Microsoft International Holdings BV dated 2 September 2012 (CX030).
Terms of Reference Terms of Reference as signed by the Tribunal and the Parties on 2 November 2018

I. Parties, representation of Parties and related entities

a. Claimant and Claimant’s representatives

1.
Claimant is TECHNOSERVICE LIMITED. Claimant is registered on the business registry of the Republic of Kenya under number 129496. Claimant’s registered office is P.O. Box 11788-00400 in Nairobi (Kenya).1
2.
From the filing of the Request for Arbitration dated 26 March 2018 up until 14 May 2018, Claimant was represented by its Director, Mr Bulent Gulbahar.
3.
By letter dated 14 May 2018, Mr Bulent Gulbahar gave notice that Claimant was represented by Maître Pierre Pic of Teynier Pic Advocates (Paris).
4.
In the Terms of Reference dated 2 November 2018, which were signed by Maître Pierre Pic on behalf of Claimant, it is noted that Claimant was represented by:2

i. TEYNIER PIC
Att. of: Mr Pierre Pic
Ms Asha Rajan
Ms Oriane Marion
2 rue Lord Byron, 75008 Paris (France)

ii. KOTIRANTA & CO.
Att. of: Dr Kai Kotiranta
Aleksanterinkatu 19, 00100 Helsinki (Finland)

iii. VALENTINE ATAKA, Advocate
Upperhill Gardens, 3rd Ngong’ Avenue, Nairobi (Kenya)

5.
By email dated 10 December 2018, Maître Pic gave notice that his firm, Teynier Pic, was withdrawing as counsel for Claimant in the present arbitration, asking that all further communications be directed to Counsel Valentine Ataka and Mr Bulent Gulbahar.
6.
In the period from 10 December 2018 up until the end of the arbitration, Claimant has not notified the Tribunal that it is represented or assisted by any person other than Counsel Valentine Ataka and Mr Bulent Gulbahar, the sole exception being Claimant’s challenge of the President of the Tribunal dated 2 May 2019 and Claimant’s challenge of the co-arbitrators dated 20 May 2019, where Claimant was represented by Counsel Céline Greenberg and Counsel Pierre Mayer.
7.
In Procedural Order No. 21 dated 6 January 2020,3 the Tribunal noted that Mr Bulent Gulbahar was authorised to represent Claimant.

b. Respondent and Respondent’s representatives

8.
Respondent is NOKIA CORPORATION. Respondent’s Finnish business identity code is 0112038-9. Respondent’s address is Karaportti 3, 02610 Espoo, Finland.
9.
Respondent has been represented throughout the whole arbitration by:

ROSCHIER ATTORNEYS LTD.
Att. of: Mr Aapo Saarikivi
Kasarmikatu 21 A

10.
By email dated 26 September 2019, following a request made by the Tribunal in Procedural Order No. 16,4 Counsel for Respondent submitted a power of attorney dated 26 April 2018.

c. Related entities

i. Nokia USA Inc.

11.
In the Request for Arbitration dated 26 March 2018, Claimant identified the Respondent(s) as (italics added):5

Nokia Corporation (Nokia USA Inc)
Karapportti 3, 02610 Espoo, Finland

12.
In its Answer dated 22 May 2018, Respondent submitted that Nokia USA Inc. should not be a party to the proceedings because it was not a party to any of the agreements on which Claimant’s claims were based. Respondent also challenged the jurisdiction of any tribunal constituted in the present arbitration over Nokia USA Inc.6
13.
By submission dated 28 September 2018, Claimant contested Respondent’s allegations, requesting inter alia that the Tribunal should decide on its jurisdiction over Nokia USA Inc. in a separate phase of the proceedings, together with the decision on the basis of Claimant’s claims.7 Claimant specifically submitted that Nokia Corporation and Nokia USA Inc. acted interchangeably in concluding and implementing the relevant agreements.8
14.
By submission dated 12 October 2018, which was prior to the signing of the Terms of Reference, Claimant accepted Respondent’s jurisdictional objection, stating that dealing with it would only delay the proceedings, and reserved its right to proceed against Nokia USA Inc. "in forums apart from the present one".9
15.
In the Terms of Reference dated 2 November 2018, it is noted that Nokia Corporation, Karaportti 3, 02610 Espoo (Finland) is the (sole) Respondent.10

ii. Microsoft Mobile Oy

16.
In its Answer, Respondent submitted that it had sold its "Device & Service Business", which was in essence Respondent’s mobile phone business, together with the contracts on which Claimant’s claims were based, to Microsoft Mobile Oy, which was part of the Microsoft group. According to Respondent, Claimant should bring its claims, if any, against Microsoft Mobile Oy.11
17.
By letter dated 28 September 2018, Respondent stated that Respondent as well as Microsoft Mobile Oy were willing to substitute Microsoft Mobile Oy for the Respondent in the present arbitration, asking Claimant to agree to that change of Respondent.12
18.
Claimant did not agree to the proposed substitution. In the Terms of Reference dated 2 November 2018, it is noted that the Respondent is Nokia Corporation (rather than Microsoft Mobile Oy).13

II. Summary of the merits of the case

a. Uncontroversial facts

19.
On 5 August 2009, the Parties entered into the Frame Repair Service Agreement,14 by which Claimant undertook to provide after-sales services to Respondent’s end customers in Kenya on a non-exclusive basis. More specifically, it was Claimant’s task to perform repairs promised under the warranty which Respondent had extended to its end customers in Kenya ("in-warranty repair"). In exchange, Respondent was to pay Claimant a certain "Compensation Fee".15
20.
Art. 20 Frame Repair Service Agreement provides:

20 Term and Termination

20.1 This Agreement is effective from 1st January 2009 until 31st December 2009. Thereafter this Agreement will automatically renew for additional one-year terms unless either Party give the other Party notice of non-renewal at least one (1) month prior to the expiration of the then-current term of this Agreement. Notwithstanding the foregoing, a Party may terminate at any time for convenience upon at least three (3) months written notice to the other Party. Neither Party is liable to the other Party as a result of any non-renewal or termination for convenience of this Agreement.

21.
Art. 23.1 Frame Repair Service Agreement, which is governed by Finnish substantive law,16 provides:

23.1 Neither Party shall have the right to assign any of its rights or obligations under this Agreement without the prior written consent of the other Party.

22.
On 26 January 2012, the Parties entered into the "Nokia Original Accessory Partner (NOAP) Agreement" by which Claimant was appointed (non-exclusive) distributor of "Nokia Original Accessories" in Kenya.17 Art. 23.1 of the NOAP Agreement also provides that each Party may terminate the NOAP Agreement for convenience, without being liable to the other Party on that basis. The NOAP Agreement likewise contains a limitation on assignments, stating that no party may assign or transfer its rights or obligations without the prior written consent of the other side.18
23.
The arbitration agreements, which were signed by both Parties, are contained in Art. 22.2 and 22.3 Frame Repair Service Agreement (CX001) and Art. 25.2 and 25.3 NOAP Agreement (CX002), which provide in almost identical terms:19
Frame Repair Service AgreementNOAP Agreement
22.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration by three arbitrators in accordance with the Rules of the International Chamber of Commerce. The language used in arbitration, including the language of the proceedings, the language of the decision, and the reasons supporting it, shall be English. The arbitration shall be conducted in Helsinki, Finland. 25.2 All disputes arising out of or in connection with this Agreement with the exception of Article 19 shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with the said Rules. The arbitration shall be held in the city of [add city] [add country]. The language used in arbitration, including the language of the proceedings, the language of the decision, and the reasons supporting it, shall be English.

22.3 The Parties agree to recognize the decision of the arbitrators as final, binding and executable. The arbitration shall be the sole and exclusive remedy of the Parties to the dispute regarding claims or counterclaims presented to the arbitrators. 25.3 The Parties agree to recognize the decision of the arbitrators as final, binding and executable. The arbitration shall be the sole and exclusive remedy of the Parties to the dispute regarding claims or counterclaims presented to the arbitrators.

24.
On 2 September 2013, Respondent entered into an Agreement designated "Stock and Asset Purchase Agreement" with Microsoft International Holdings B.V., by which Respondent sold its "Device and Service Business" (i.e., in substance, its mobile phone business) to Microsoft. According to the terms of the Stock and Asset Purchase Agreement, the assets Microsoft purchased included all contracts related to, or primarily used in, Respondent’s mobile phone business, as well as the goodwill of the mobile phone business.20
25.
The dispute leading to this arbitration revolves around the questions whether Respondent validly transferred the Frame Repair Service Agreement and the NOAP Agreement to Microsoft, or whether Respondent’s attempts to transfer these agreements to Microsoft without seeking Claimant’s prior written consent were unlawful, or even criminal, and the possible legal consequences thereof. In the paragraphs which follow, we will summarise the submissions of each side.

b. Claimant’s case

26.
According to Claimant, the cooperation between the Parties began soon after Respondent had opened its Nairobi office in 2006.21 On 24 January 2007, Respondent provided Claimant with a business account on the Nokia Online Platform,22 enabling Claimant, among other things, to perform after sales services to Nokia’s end users in Kenya.
27.
On 5 August 2009, the Parties entered into the Frame Repair Service Agreement.23 Subsequently, Claimant rolled out state-of-the-art "Nokia Care" service centres in several locations across Kenya as well as a mobile service centre called "Care on Wheels".24 Claimant submits that it invested in these service centres jointly with Respondent.25 Claimant’s market share among Respondent’s other service partners in Kenya was 75% to 90%.26
28.
According to Claimant, Claimant also engaged in a series of other successful activities such as: hosting regional training programs and training sessions for Nokia technicians and Nokia channel partners in the East African region, organising road shows; launching an anti-counterfeit and recycling campaign, etc.27 Over time, Claimant became Respondent’s "preferred partner" in Kenya and was expressly recognised as such by Respondent.28
29.
On 26 January 2012, the Parties signed the NOAP Agreement which allowed Claimant to retail and distribute "Nokia Original Accessories" on a non-exclusive basis.29 In combination with Claimant’s service centres, Claimant offered an integrated countrywide network where end-users could obtain warranty services and buy "Nokia Original Accessories" under one roof.30
30.
According to Claimant, the relationship of the Parties was an "intricate, intertwined and interdependent" partnership that went beyond the scope of the Agreements.31 As a result of this partnership, Respondent’s share of the Kenyan market grew significantly between 2007 and 2013, and Respondent’s net sales growth was extremely gratifying. Claimant submits that this is proven not least of all by Respondent’s own statements in which Respondent praised its partnership with Claimant.32
31.
Claimant submits that its activities contributed to an increase in the awareness and visibility of the Nokia brand. This helped Respondent to achieve a series of wide-ranging benefits and was also instrumental in the successful sale of Respondent’s mobile phone business to Microsoft.33
32.
In September 2014, Claimant learnt from media reports that Respondent was selling its mobile phone business to Microsoft.34 However, the circumstances surrounding this transaction were unclear, because Respondent and Microsoft kept a veil of secrecy over the scope and true details of the transaction. The transaction had been rushed through in 4 to 5 weeks during the summer of 2014, even though it involved a significant amount of money: Microsoft paid USD 5,458 billion for "Goodwill" and USD 1.5 billion for "Contracts".35
33.
It is Claimant’s case that Respondent failed to seek Claimant’s written consent prior to concluding its transaction with Microsoft, and that no such consent was ever given. Respondent thereby breached not only the express terms of the Agreements but also its duties of loyalty towards Claimant. Had Respondent informed Claimant of the upcoming transaction in due time, Claimant would have claimed the fair amount it was entitled to receive as Respondent’s strategic partner in Kenya.36 When Claimant finally raised concerns and objections about tire transaction in 2015, the only response it received was a termination letter sent by Nokia USA Inc., dated 1 April 2015.37
34.
In addition to the claim summarised above, Claimant asserts a second claim which relates to mobile phones Respondent had sold to Dubai and which were later imported illegally, according to Claimant, to Kenya via Respondent’s distributor Midcom. These phones were out-of-warranty in Kenya but covered by Nokia warranty in Dubai.38
35.
Initially, Claimant submits, Respondent acknowledged that these imports from Dubai were also covered under the warranty in Kenya, allowing Claimant to be remunerated for the relevant in-warranty repairs. However, on or about 27 February 2014, Respondent began withholding the warranty and paid for repairs only where customers threatened legal action. Claimant subsequently had to rebuff many end-users.39
36.
According to Claimant, Nokia and Midcom eventually approached Claimant with an offer to perform repair services outside the scope of the Frame Repair Service Agreement, but Claimant declined the offer because that was irregular business conduct.40
37.
It is Claimant’s submission that it would have been entitled to a repair fee or to earn revenue for mobile phones supplied in Kenya via Dubai.41
38.
Claimant seeks full compensation for Respondent’s breaches and disgorgement of the gain received and obtained from the business which Respondent transferred to Microsoft. In its Reply dated 17 June 2019, Claimant specified its prayers for relief as follows:42

260. Claimant respectfully requests the Arbitral Tribunal, without prejudice to any other further right or claim to which Claimants might be entitled in this Arbitration, to:

(i) Declare that the Respondent has breached its obligations toward the Claimant under the Frame Repair Service Agreement, the Nokia Original Accessories Agreement and general principles of law.

(ii) Declare that the Respondent without the consent of the Claimant has transferred and assigned the FRSA and the NOAP to Microsoft;

(iii) Declare that the Respondent has breached its duty of loyalty towards the Claimant;

(iv) Declare that the Respondent has violated the Claimant’s legitimate expectation;

(v) Declare that the Respondent has breached the mandatory laws of Kenya ie Constitution of Kenya, Sale of Goods Act, Competition Act and Consumer Protection Act.

(vi) Declare that the Respondent has obtained an unjust enrichment by transferring and assigning the Agreements with the Claimant to Microsoft in breach of its obligations toward the Claimant under the Frame Repair Service Agreement, the Nokia Original Accessories Agreement and general principles of law

(vii) Declare that the Respondent deliberately terminated the Agreement(s) with the Claimant for cause.

(viii) Declare that the Claimant is entitled to receive compensation for all profits, gains and benefits, attributable to the territory of Kenya, obtained by the Respondent as a result of the breach of the Agreements, the breach of the principle of 'duty of loyalty', the breach of the Claimant’s legitimate expectation and breach of the laws of Kenya.

(ix) Order the Respondent to pay damages in the sum of $344,906.00 due to the Respondent denying manufacture warranty on mobile phones sold to end consumers through its authorized distributor in the territory of Kenya, together with applicable interest for late payment.

(x) Alternative to (ix) above an order the Respondent to pay damages in the sum of $270,752.19 due to the Respondent denying manufacture warranty on mobile phones sold to end consumers through its authorized distributor in the territory of Kenya, together with applicable interest for late payment

(xi) Order the Respondent to return to the Claimant, for transferring and assigning the Agreements to Microsoft the unjust enrichment of the amount of:

(a) $16,860,000 including compounded interest of 10% from April 2014, due to the Respondents unjust enrichment based on the 'Contracts’

(b) $61,347,921.00 including compounded interest of 10% from April 2014, due to the Respondents unjust enrichment based on the 'Goodwill'

(xii) An Order that the Respondent compensate the Claimant on full indemnity basis for all costs incurred in relation to the dispute with interest, including costs of the ICC and the Tribunal.

(xiii) An order for compensation for time lost and spent by the Representative of the Claimant.

(xiv) An order for interest on all monies payable from the date when such monies became due on a compounded rate of 10%.

(xv) Any other Order that the Tribunal may find just and proper.

c. Respondent’s case

39.
Respondent submits that it is not the proper respondent in the arbitration. According to Respondent, it gave due notice of its intent to transfer the Agreements to Microsoft on 19 December 2013 and 22 January 2014, respectively, as it was also notifying all of its other local business partners and service providers.43 Even if Claimant did not receive these notifications (which is denied by Respondent), Claimant should have been aware of the transaction, as it was widely reported at the time by leading newspapers in Kenya.44
40.
Respondent further submits that, by the time of the transaction with Microsoft (end of 2013/beginning of 2014), Claimant was not objecting to the transfer of the Agreements. To the contrary, Claimant continued its business with Microsoft for more than a year, issuing invoices to Microsoft and ordering spare parts from Microsoft.45 On 20 October 2014, Claimant even asked Microsoft for their consent to the sale of Claimant’s repair business to a third party, thereby acknowledging that Microsoft was Claimant’s partner.46 Respondent expressly contests Claimant’s contention that these dealings between Claimant and Microsoft were on the basis of other agreements between Claimant and Microsoft.47
41.
According to Respondent, Claimant acted the same as all of the other local business partners and service providers who were eager to continue their businesses with Microsoft, if only because Respondent was out of the mobile phone business after the transaction with Microsoft.48 If Respondent terminated the Agreements by its letter of 1 April 2015, this was only out of an abundance of caution, since by that time, the Agreements had already been terminated by Microsoft.49
42.
For these reasons, Respondent claims that it is no longer a party to the Agreements, and that Claimant should bring its claims, if any, against Microsoft.
43.
As a second line of defence, Respondent submits that Claimant has forfeited its claims, due to its failure to give timely notice of the alleged breaches. According to Finnish law, Respondent submits, a party suffering from a breach of contract must notify the other side of the breach within a reasonable time (a few days or weeks), failing which the injured party loses the rights and remedies that flow from the breach.50
44.
Furthermore, Respondent submits, Claimant’s claims are time-barred because Claimant failed to assert its claims within the time bar of three years applicable under the Finnish Limitations Act. Had Claimant made any claims on the basis of the Finnish Commercial Agency Act (which is denied by Respondent), then the claims would also be time barred because the Finnish Commercial Agency Act sets out a time bar of only one year as from the termination of the commercial agency relationship.51
45.
According to Respondent, Claimant’s claims are also excluded in the light of Art. 19.2 Frame Repair Service Agreement and Art. 21 NOAP Agreement, which provide that neither party is liable for indirect or consequential losses.52
46.
Moving on to the substance of the claims, Respondent submits that the Parties had entered into a "Service Agreement for Nokia Manufactured Wireless Devices" as early as 2007. By that time already, Respondent was the number one mobile phone brand in East Africa, both in terms of market share and in terms of market preference. According to Respondent, there can be no suggestion that the Parties had formed a joint venture before entering into the Frame Repair Service Agreement in 2009.53
47.
According to Respondent, Claimant was a rank-and-file service provider who operated a ready-made concept in Kenya. Claimant’s activities, including training activities, remained within the scope of the Agreements and were typical of the work of any other service provider.54 They had no noticeable impact on Respondent’s mobile phone business, whether positive or negative. In general, the value of after sales-services represented only a minimal fraction of Respondent’s revenues in any given country.55 In the case of Claimant, the in-warranty repairs amounted only to some hundreds of thousands of USD per year.56
48.
Respondent concludes that "Nokia's business in Kenya was owned by Nokia, not by TechnoService. TechnoService has no rights whatsoever to any part of it".57 If Claimant was right in claiming a "fair" share of the purchase price paid by Microsoft, then the entire purchase price would have to be distributed among Respondent’s contracting partners and suppliers, which does not make sense.58
49.
Respondent submits that Claimant was not even akin to a commercial agent or distributor. Therefore, Claimant would not even be entitled to receive any "goodwill" compensation within the meaning of the Finnish Commercial Agency Act, had it asserted any such claim.59
50.
Respondent also contests that Claimant suffered damages as a consequence of the sale of Respondent’s mobile phone business: First, according to Respondent, Claimant was able to continue and did in fact actively continue its business with Microsoft.60 In addition, Respondent was out of the mobile phone business after the transaction, leaving no room for any further repair work. Respondent was not obliged to remain in business if one considers that the Agreements do not set out any guaranteed minimum turnover volumes.61 Furthermore, it was agreed that both Parties would be entitled to terminate the Agreements at their convenience at any given time.62 Had Claimant opposed the transfer, Respondent would have been obliged to terminate the Agreements at its convenience, without incurring any further liability.63
51.
Respondent also contests the methodology used by Claimant for calculating its claim.64 Claimant’s turnover was so small (Respondent allegedly spent less than USD 1 million in 18 months on the Frame Repair Service Agreement) that Claimant could not by any means have suffered losses in the range of USD 80 million, which is what it has been claiming in the present arbitration.65
52.
As regards the alleged parallel imports via Dubai, Respondent submits that it was under no obligation to honour any warranty whatsoever66 and that there was no established practice between the Parties requiring Respondent to do so.67 If Midcom did import mobile phones from Dubai, Respondent never consented to these "parallel imports" and cannot be held liable for them. When Respondent refused to pay for the repair of these phones, this was only to disincentivise the importation, which is legitimate and lawful according to Respondent.68
53.
Respondent submitted the following prayer for relief:69

Nokia disputes all of TechnoService’s claims and requests the Arbitral Tribunal:

a) dismiss TechnoService's claims in their entirety, both as to their bases and amounts; and,

b) order TechnoService to bear alone and to compensate Nokia in full for all fees and costs arising out of or relating to this dispute, including the fees and costs of the ICC Court, the Arbitral Tribunal and Nokia's legal advisors, plus interest at the rate specified in Sections 4 and 12 of the Finnish Interest Act beginning to accrue one month from the date of the Arbitral Award.

III. Withdrawal of Claimant’s claims and subject matter of the present Award on Costs

54.
By letter dated 8 May 2018, Claimant estimated the monetary value of its claims, stating that "we cautiously and with reservations estimate the amount in dispute to be USD 5,000,000.00". This was also the amount in dispute set out in the Terms of Reference.70
55.
On the basis of an amount in dispute of USD 5 million, each side paid an advance on costs of USD 165,000 by 27 November 2018 as determined by the ICC Court.71
56.
In the Reply dated 17 June 201972 and the Additional Reply filed on 26 June 2019,73 Claimant specified and extended its monetary claims as follows:

USD 344,906, in the alternative USD 270,752, for damages due to Respondent denying manufacture warranty coverage;

USD 16,860,000 plus interest "due to the Respondent’s unjust enrichment based on the 'Contracts'";

USD 61,347,000 plus interest "due to the Respondent’s unjust enrichment based on the 'Goodwill'".

57.
By letter dated 15 October 2019, the ICC Secretariat informed the Parties and the Tribunal that the ICC Court had readjusted the advance on costs to a total of USD 985,000. Taking account of the payments already made by that time, the ICC Secretariat asked each Party to make an additional payment of USD 327,500 on or before 14 November 2019.
58.
By letter dated 20 November 2019, the ICC Secretariat acknowledged that Respondent had paid its share of the readjusted advance on costs (USD 327,500) and gave Claimant an additional deadline to pay the balance of the advance on costs (USD 327,500) on or before 6 December 2019.
59.
By letter dated 10 December 2019, the ICC Secretariat granted Claimant an additional time to pay the balance of the advance on costs until 17 December 2019.
60.
By letter dated 18 December 2019, the ICC Secretariat noted that Claimant had failed to pay the balance of the advance on costs and invited Respondent to substitute for Claimant on or before 10 January 2020. In the same letter, the Secretariat warned the Parties of the potential application of Art. 37(6) ICC Arbitration Rules.
61.
By letter to the Parties dated 14 January 2020, the ICC Secretary General noted that the balance of the readjusted advance on costs was still outstanding and granted the Parties 21 days to pay said balance, failing which the ICC Secretary General stated that the relevant claims would be considered withdrawn, without prejudice to their reintroduction at a later date in another proceedings, in conformity with Art. 37(6) ICC Arbitration Rules.
62.
By a separate letter to the Tribunal dated 14 January 2020, copied to the Parties, the ICC Secretary General invited the members of the Tribunal to suspend their work in the present arbitration.
63.
By Procedural Order No. 22 dated 15 January 2020, the Tribunal set out the status of the proceedings as per 15 January 2020 and cancelled the hearing scheduled for 4 and 5 February 2020 (with a possible extension on 6 and 7 February 2020).
64.
By email dated 27 March 2020, the ICC Secretariat informed the Parties that it had received no payment from the Parties and that Claimant’s claims were therefore considered withdrawn as of 28 February 2020.
65.
By letter dated 30 March 2020, Respondent requested the Tribunal to issue an order for termination of the proceedings and to rule on all issues with respect to the costs of the arbitration.74
66.
As a result of the withdrawal of Claimant’s claims, the subject-matter of the present Award is limited to those claims which remain open, i.e., the claims regarding the costs of the arbitration within the meaning of Art. 38(6) ICC Arbitration Rules.

IV. Legal framework of the arbitration

a. Arbitration agreements

67.
The relevant arbitration agreements have already been quoted supra, in ¶ 23.

b. Place of the arbitration

68.
According to Art. 22.1 Frame Repair Service Agreement, the place of arbitration is Helsinki, Finland.
69.
The arbitration agreement in the NOAP Agreement does not specify the place of arbitration. In the Request for Arbitration and the Answer, the Parties agreed that the place of arbitration is Helsinki, Finland. The Parties confirmed this agreement in ¶72 of the Terms of Reference.
70.
At ¶74 of the Terms of Reference, the Parties also confirmed that the Tribunal may deliberate at any place and in any way (e.g., by telephone or videoconference) it considers appropriate. Furthermore, at ¶75 of the Terms of Reference, the Parties confirmed that any award within the meaning of Art. 2(v) ICC Arbitration Rules shall be deemed to be made in Helsinki (Finland), irrespective of the place where it is signed.

c. Lex arbitri

71.
At ¶¶76-78 of the Terms of Reference, the Parties defined the applicable procedural rules as follows:

76. Subject to the mandatory' provisions of the Finnish Arbitration Act (Arbitration Act of 23 October 1992/967 including the amendments of 12 June 2015 /754), the proceedings shall be governed by the ICC Rules. Where these rules are silent, the Tribunal shall follow any rules which the Parties will have agreed upon with the Tribunal’s consent or, in the absence of such an agreement, conduct the arbitration in such manner as it considers appropriate.

77. The Tribunal is allowed to apply statutory provisions, rules of law or court decisions that are applicable ex officio, whereby it is understood that it shall grant the Parties their right to be heard.

78. Upon deliberation with all members of the Tribunal, the President can sign Procedural Orders alone.

d. Language of the arbitration

72.
Art. 22.2 Frame Repair Service Agreement provides that the language of the arbitration is to be English.
73.
The arbitration agreement in the NOAP Agreement does not specify the language of the arbitration. In the Request for Arbitration and the Answer, the Parties agreed that the language of the arbitration is to be English. The Parties confirmed this agreement at ¶80 of the Terms of Reference.

e. Law governing the merits of the dispute

74.
The Agreements are governed on their substance by Finnish law. Art. 22.1 Frame Repair Service Agreement and Art. 25.1 NOAP Agreement provide:
Frame Repair AgreementServiceNOAP Agreement
22.1 This Agreement shall be governed by Finnish law. 25.1 This Agreement shall be governed by and construed in accordance with Finnish law.

V. Constitution of the Tribunal

75.
By letter dated 2 May 2018, Claimant nominated Professor Georges Affaki as arbitrator.75
76.
In its Answer of 22 May 2018, Respondent nominated Mr Christer Danielsson as arbitrator.
77.
By two emails dated 13 June 2018, the Parties expressed their wish to jointly nominate the President of the Tribunal. By email dated 18 June 2018, the ICC Secretariat gave the Parties an opportunity to jointly nominate the President on or before 30 July 2018.
78.
On 10 July 2018, the ICC Secretary General confirmed the nominations of Professor Georges Affaki and Mr Christer Danielsson pursuant to Art. 13(2) ICC Arbitration Rules.
79.
By emails dated 30 July 2018 (Claimant) and 3 August 2018 (Respondent), respectively, the Parties requested the ICC Court to choose the President from a list of four candidates.
80.
By email dated 27 August 2018, the ICC Secretariat informed the Parties that all of the four candidates on the list had declined the appointment. Subsequently, by emails dated 30 August 2018 (Claimant) and 31 August 2018 (Respondent), respectively, the Parties both requested the ICC Court to appoint the President in accordance with Art. 13 ICC Arbitration Rules.
81.
On 13 September 2018, the ICC Court, acting upon the proposal of the Austrian National Committee of the ICC pursuant to Art. 13(3) ICC Arbitration Rules, appointed Dr Christian Aschauer as President of the Tribunal.

VI. Summary of the proceedings up to their suspension (14 January 2020)

a. Summary of the proceedings from the filing of the Request for Arbitration (26 March 2018) up to the establishment of the Terms of Reference (2 November 2018)

82.
On 26 March 2018, Claimant filed the Request for Arbitration.
83.
By email dated 27 March 2018, the ICC Secretariat acknowledged receipt of the Request for Arbitration, noting that 26 March 2018 was the day of commencement of the arbitration within the meaning of Art. 4(2) ICC Arbitration Rules.
84.
On 28 March 2018, Claimant submitted a specification of the Request for Arbitration.
85.
On 22 May 2018, Respondent submitted the Answer.
86.
By email dated 14 September 2018, following the constitution of the Tribunal,76 the ICC Secretariat transmitted the file to the President.
87.
On 28 September 2018, Claimant submitted a request for bifurcation of the proceedings into a first phase dealing with the Tribunal’s jurisdiction over Nokia USA Inc. and the basis of Claimant’s claims, and a second phase dealing with quantum. By letter of the same day (28 September 2018), Respondent expressed its opposition to Claimant’s request for bifurcation.
88.
On 1 October 2018, the Tribunal held the first Case Management Conference, consulting with the Parties on the Terms of Reference, Procedural Order No. 1 and the Timetable. When planning the proceedings, the Tribunal and the Parties envisaged a "bifurcation" and a "non-bifurcation" scenario, contingent on the Tribunal’s decision on Claimant’s request for bifurcation.
89.
By letter dated 12 October 2018, Claimant accepted that the Tribunal had no jurisdiction over Nokia USA Inc. and requested "that the arbitration proceed against Nokia Corporation Finland only".
90.
On 18 October 2018, Claimant filed a request for interim relief, submitting that Respondent had breached its confidentiality obligations under Art. 17.1 Frame Repair Service Agreement and Art. 24.4.1 NOAP Agreement, in particular by disclosing information regarding the Agreements to Microsoft Mobile Oy. Claimant asked for an order that Respondent should disclose inter alia any information exchanged with Microsoft Mobile Oy and cease breaching its confidentiality obligations for the future.
91.
By submission dated 26 October 2018, Respondent asked the Tribunal to dismiss Claimant’s request for interim relief. The Parties subsequently exchanged further written submissions dealing with Claimant’s request for interim relief on 5 November 2018 (Claimant) and 12 November 2018 (Respondent).
92.
The Terms of Reference were signed by correspondence, with the President of the Arbitral Tribunal signing on 2 November 2018.

b. Summary of the proceedings from the Tribunal’s Procedural Order No. 1 (7 November 2018) up to the Tribunal’s fourth Case Management Conference (1 August 2019)

93.
Following consultation with the Parties, the Tribunal issued Procedural Order No. 1 on 7 November 2018.
94.
On 9 November 2018, Respondent filed a request for security for costs.
95.
On 12 November 2018, Claimant requested an extension of time for the filing of the Statement of Claim.
96.
On 22 November 2018, the Tribunal held the second Case Management Conference to discuss Claimant’s request for an extension of time dated 12 November 2018.
97.
By Procedural Order No. 2 of the same day (22 November 2018), the Tribunal extended the deadlines for the filing of the Statement of Claim and the Statement of Defence.
98.
On 24 November 2018, the Tribunal held the third Case Management Conference, consulting with the Parties about the timing of written submissions and the hearing under the "bifurcation" and the "non-bifurcation" scenarios.
99.
By Procedural Order No. 3 dated 24 November 2018, the Tribunal set out the dates for the filing of written submissions and the hearing dates for the "bifurcation" and the "non-bifurcation" scenarios.
100.
On 26 November 2018, Claimant replied to Respondent’s request for security for costs, asking the Tribunal to "[r]eject Respondent’s request in its entirety".
101.
By Procedural Order No. 4 dated 6 December 2018, the Tribunal

dismissed Claimant’s request for interim relief, finding inter alia that Claimant itself had chosen to discuss certain issues regarding the Frame Repair Service Agreement with Microsoft Mobile Oy;77 however, the Tribunal also instructed Respondent to "refrain from providing MMO or any other third party or entity with copies of written submissions or documents filed in the present arbitration, or with any minutes of meetings of hearings";78

rejected Respondent’s request for security for costs.79

102.
By email dated 10 December 2018, Maître Pic gave notice that his firm was withdrawing as counsel for Claimant.
103.
By email dated 12 December 2018, Claimant (represented by Mr Bulent Gulbahar) requested an extension of time of 45 days for the filing of the Statement of Claim.
104.
By Procedural Order No. 5 dated 19 December 2018, the Tribunal extended the time limit for the Statement of Claim by seven days.
105.
On 14 January 2019, Claimant filed the Statement of Claim which it designated "Claimant’s submission on the Request for Bifurcation".
106.
On 7 March 2019, Respondent filed the Statement of Defence.
107.
By Procedural Order No. 6 of 11 March 2019, the Tribunal rejected Claimant’s request for bifurcation and noted that for this reason, the Timetable prepared for the "non-bifurcation scenario" would become effective. The following extract of the procedural timetable shows the main procedural steps set out in the Timetable ordered by the Tribunal on 11 March 2019;

DateClaimantRespondent
26 March 2018 Request for Arbitration
28 March 2018 Specification of Request for Arb.
22 May 2018 Answer
14 Sept. 2018 Transmission of the File
1 October 2018 Case Management Conference
2 November 2018 Signing of the Terms of Reference
21 Nov. 2018 Case Management Conference
23 Nov. 2018 Case Management Conference
7 January 2019 Statement of Claim
8 March 2019 Statement of Defence
11 March 2019 Decision on bifurcation ("no bifurcation")
20 March 2019 Document production requests
29 March 2019 Document production and/or objections
5 April 2019 Comments on objections
10 April 2019 Tribunal’s decision on open document production requests
19 April 2019 Production of documents according to the Tribunal’s decision
5 June 2019 Reply
24 July 2019 Rebuttal
14 August 2019 Comments
4 September 2019 Pre-hearing Case Management Conference (date remains to be confirmed)
4 September 2019 Comments
16-19 Sept. 2019 Hearing

108.
By letter dated 19 Mach 2019, Claimant requested that the Tribunal "require [Respondent] to confirm unequivocally that it does not and will not object to the jurisdiction of this Arbitral Tribunal in respect of any claims falling within the ambit of the Terms of Reference or state its objection immediately", so as to enable the Tribunal to decide on any jurisdictional objections immediately. Furthermore, Claimant requested a revision of the Timetable set out in Procedural Order No. 6.
109.
By letter dated 29 March 2019, Claimant requested a hearing on document production.
110.
By Procedural Order No. 7 of 1 April 2019, the Tribunal rejected Claimant’s requests of 19 and 29 March 2019.
111.
By Procedural Order No. 8 of 10 April 2019, the Tribunal ruled on the Parties’ open document production requests. At the outset of its decision, the Tribunal made the proviso that it would only be able to assess the relevance and materiality of documents on a prime facie basis in the document production phase, and confirmed that it had not formed a definitive opinion on any of the substantive law issues.80
112.
On 17 April 2019, Claimant requested the Tribunal to remove Counsel for Respondent and to order Respondent to indemnify Claimant, alleging that Respondent, with the assistance of Counsel, had deliberately misled Claimant and the Tribunal by submitting fabricated documents.
113.
By submission dated 3 May 2019, Claimant claimed that Respondent had failed to comply with the Tribunal’s document production orders, asking the Tribunal to hold a Case Management Conference and to re-schedule the proceedings.
114.
By submission dated 14 May 2019, Claimant asked the Tribunal to reconsider certain decisions on document production.
115.
By submission dated 17 May 2019, Claimant requested the Tribunal for leave to enforce the Tribunal’s document production orders through the assistance of state courts, repeating its request for a stay of the proceedings.
116.
By Procedural Order No. 10 dated 30 May 2019, the Tribunal

rejected Claimant’s request of 17 April 2019 to remove Counsel for Respondent;81

allowed Claimant to submit its Reply on 12 June 2019 instead of 5 June 2019, but dismissed Claimant’s requests for a suspension of the proceedings;82

invited the Parties to specify in the upcoming round of written submissions (Reply and Rebuttal) any non-compliance with the Tribunal’s document production orders and the legal consequences thereof;83

rejected Claimant’s request of 14 May 2019 that the Tribunal reconsider certain decisions on document production;84

denied Claimant’s request to be allowed to enforce the Tribunal’s document production orders through the assistance of state courts.85

117.
By letter dated 6 June 2019, Claimant asked for permission to file its Reply on 27 June 2019 instead of 12 June 2019.
118.
By Procedural Order No. 11 of 11 June 2019, the Tribunal extended the deadlines for the filing of the Reply and the Rebuttal, directing Claimant to file its Reply on or before 17 June 2019, whereas Respondent would file its Rebuttal on or before 29 July 2019.86
119.
On 17 June 2019, Claimant filed its Reply titled "Statement of Claim".
120.
On 26 June 2019, Claimant filed an Additional Reply also titled "Statement of Claim").
121.
In the Reply and in the Additional Reply, Claimant specified and extended its monetary claims from USD 5 million to87

USD 344,906, in the alternative USD 270,752, for damages due to Respondent denying manufacture warranty coverage;

USD 16,860 million plus interest "due to the Respondent’s unjust enrichment based on the ’Contracts'";

USD 61,347 million plus interest "due to the Respondent’s unjust enrichment based on the 'Goodwill'".

122.
By email dated 28 June 2019, Respondent stated that it was not objecting to the filing of the Additional Reply but reserved its right to object if Claimant missed another deadline.
123.
In regard of the taking of witness evidence, it had been stated in the Tribunal’s Procedural Order No. 1 that "[e]ach Party is responsible for the physical presence at the hearing of the witnesses it has called or will call" and that the Party appointing a witness should submit a written witness from him or her.88 In this vein, Claimant appointed Mr Bulent Gulbahar and Counsel Valentine Ataka as witnesses and Respondent appointed Mr Anssi Rönnema as witness.
124.
Furthermore, by submission dated 5 July 2019, Claimant asked the Tribunal for permission to seek assistance from state courts in order to obtain oral evidence from the following 12 witnesses (in alphabetical order):

(i) Mr Steve Ballmer, Microsoft CEO from 2000-2014

(ii) Mr Gerard Brandjes, Nokia General Manager East and South Africa 2007-2010 and Vice President Sub-Saharan Africa 2012-2014

(iii) Mr Matthew Channing, Nokia Head of Care for Sub-Saharan Africa from 2006-2010

(iv) Mr Sherwin Chetty, Nokia Head of Care for Sub-Saharan Africa from 2010-2014

(v) Mr Stephen Elop, Nokia CEO from 2010-2014

(vi) Mr Timo Ihamuotila, Nokia Executive Vice President from 2009-2016

(vii) Mr Nicholas Maina, Nokia Head of Care in Kenya from 2006-2009 (viii) Ms Koki Muia, Nokia Head of Care in Kenya from 2009-2010

(ix) Ms Brenda Okwiri, Nokia Head of Care in Kenya from 2010-2014

(x) Ms Louise Pentland, Nokia Chief Legal Officer from 1998-2014

(xi) Mr Anssi Ronnemaa, Nokia Head of Finance in Dubai from 2011-2014

(xii) Mr Risto Siilassmaa, Nokia Chairman of Board of Directors

125.
By Procedural Order No. 12 of 16 July 2019, the Tribunal considered, based on the elements of fact then in its possession, that evidence from

(i) Mr Gerard Brandjes

(ii) Mr Matthew Channing

(iii) Mr Sherwin Chetty

(iv) Mr Nicholas Maina

(v) Ms Koki Muia

(vi) Ms Brenda Okwiri

(vii) Mr Anssi Ronnemaa

"might be helpful to establish the facts of the case", whereas the Tribunal found that witness examinations of

(viii) Mr Steve Ballmer

(ix) Mr Stephen Elop

(x) Mr Timo Ihamuotila

(xi) Ms Louise Pentland

(xii) Mr Risto Siilassmaa

would be unlikely to produce meaningful evidence, as these witnesses were "detached from the relevant agreements and the facts of the case".89

126.
Furthermore, the Tribunal expressed its understanding that the witnesses (i)-(vii) were Respondent’s employees and asked Respondent to confirm that it would make these witnesses available for the hearing.90 However, by email of the same day (16 July 2019), Respondent clarified that the witnesses (i)-(vii) were Respondent’s former employees and that Respondent had no possibility to direct these persons to attend the hearing.
127.
By letter dated 17 July 2019, the Tribunal stated that it would invite the witnesses to appear at the hearing, advising the Parties that the Tribunal would nevertheless not be able to hear a witness at the hearing if the Parties fail to communicate the correct address of a witness and/or if the Parties fail to make the advance payments necessary to cover travel and accommodation of the witness in due time.91
128.
By email dated 23 July 2019, the Tribunal invited the Parties to participate in a Case Management Conference in order to discuss the particulars of the taking of witness evidence at the upcoming hearing.92
129.
By email dated 28 July 2019, Claimant requested an extension of nine days for the filing of its expert report on quantum (14 August 2019 instead of 5 August 2019).
130.
On 30 July 2019, Respondent submitted its Rebuttal.
131.
By letter dated 31 July 2019, Claimant alleged that Respondent’s Rebuttal was further evidence of Respondent’s failure to comply with the Tribunal’s document production orders, reiterating its request to be allowed to enforce the Tribunal’s document production orders through the assistance of state courts.

c. Summary of the proceedings from the Tribunal’s fourth Case Management Conference (1 August 2019) up to the suspension of the proceedings (14 January 2020)

132.
On 1 August 2019, the Tribunal held the fourth Case Management Conference, consulting with the Parties in particular about the taking of witness evidence. At this occasion, Claimant expressed its opposition to hearing the witnesses at the seat of the arbitration (Helsinki), alleging that it would be more cost-effective to hear the witnesses before the state courts of Kenya.93
133.
By submission dated 2 August 2019, Claimant submitted that Respondent’s Rebuttal of 28 July 2019 went beyond the scope allowed by the Terms of Reference and the Timetable, requesting the Tribunal to strike out the "new claims and reliefs" contained in it. Claimant submitted that, if the Tribunal admitted Respondent’s "new claims and reliefs", then it would not be able to comment on Respondent’s Rebuttal before 15 November 2019.
134.
By Procedural Order No. 13 dated 7 August 2019, the Tribunal

granted Claimant’s request for an extension of time dated 28 July 2019, deferring the time limit for the filing of Claimant’s expert report on quantum as well as Respondent’s possible comments and/or rebuttal report;94

denied Claimant’s repeated request of 31 July 2019 regarding the enforcement of the Tribunal’s document production orders through state courts;95

rejected Claimant’s request of 2 August 2019 to strike out the so-called "new claims" in the Rebuttal of 30 July 2019;96

proposed a new Timetable, giving the Parties an opportunity to comment.97

135.
By letters dated 14 August 2019, the Parties commented on the proposed new Timetable.
136.
By Procedural Order No. 14 dated 31 August 2019, the Tribunal established the new Timetable. By Procedural Order No. 15 dated 25 September 2019, the Tribunal extended the deadlines for the final round of written submissions of the Parties. The following graph shows the main procedural steps set out in the Timetable of 31 August 2019, as amended by Procedural Order No. 14 of 25 September 2019:

DateClaimantRespondent
26 March 2018 Request for Arbitration
28 March 2018 Specification of Request for Arb.
22 May 2018 Answer
14 Sept. 2018 Transmission of the File
1 October 2018 Case Management Conference
2 November 2018 Signing of the Terms of Reference
21 Nov. 2018 Case Management Conference
23 Nov. 2018 Case Management Conference
7 January 2019 Statement of Claim
8 March 2019 Statement of Defence
11 March 2019 Decision on bifurcation ("no bifurcation")
20 March 2019 Document production requests
29 March 2019 Document production and/or objections
5 April 2019 Comments on objections
10 April 2019 Tribunal’s decision on open document production requests
19 April 2019 Production of documents according to the Tribunal’s decision
17 June 2019 Reply
26 June 2019 Additional Reply
30 July 2019 Rebuttal
1 August 2019 Case Management Conference
30 Sept. 2019 Comments, including expert report on quantum
11 Nov. 2019 Comments, including expert report on quantum
2 December 2019 Pre-hearing Case Management Conference
3-7 Feb. 2020 Hearing
9 March 2020 Post-hearing Briefs

137.
Claimant missed the deadline of 30 September 2019 for the filing of its Comments and the expert report on quantum. No explanation was offered as to the reason for this breach of the Timetable.
138.
By letter dated 11 November 2019, Claimant repeated that it was requesting permission to seek state court assistance for the examinations of witnesses.
139.
By Procedural Order No. 18 dated 18 November 2019, the Tribunal gave the Parties an additional opportunity to agree on the financing of the expenses for two witnesses who had agreed to come to Helsinki for their examination (Mr Nicholas Maina and Ms Koki Muia).98 However, the Parties reached no agreement on the financing of the appearance of Mr Nicholas Maina and Ms Koki Muia in Helsinki.
140.
By letter dated 19 November 2019, Respondent expressed its opposition to any involvement of state courts in the taking of witness evidence, stating in summary that this would be an extremely long and costly procedure, given that the Finnish court would have to request assistance from state courts in Kenya, South Africa, the US and the UK, because the witnesses resided in these different jurisdictions.
141.
On 22 November 2019, Claimant filed an unscheduled submission which it titled "Reply to Respondent’s Rebuttal", together with a legal opinion by Professor Olli Norros, likewise unscheduled.99 Claimant submitted no expert report on quantum.
142.
By letter dated 26 November 2019, Respondent objected to the filing made on 22 November 2019 with its attachments, submitting in particular that the filing was late and that Claimant had not even asked for an extension of time.
143.
By Procedural Order No. 19 dated 9 December 2019, the Tribunal

dealt with Mr Bulent Gulbahar’s authority to represent Claimant, ordering Claimant to provide evidence of Mr Bulent Gulbahar’s power to represent Claimant alone;100

dealt with Claimant’s request of 5 July 2019, where Claimant had requested leave to seek assistance from state courts for the taking of witness evidence: The Tribunal observed in particular that it had done everything it considered appropriate in order to secure the appearance of the witnesses in Helsinki. If these efforts were not successful, the Tribunal added, this was only due to the unwillingness of the witnesses to appear and to Claimant’s unwillingness to cooperate.101 The Tribunal also observed that the hearing of witnesses was the prerogative of the Tribunal and that the involvement of state courts in the pending proceedings would trigger significant costs. On that basis, the Tribunal ruled that the involvement of state courts was only a remedy of last resort and maintained its decision not to permit Claimant to seek assistance from state courts for the taking of witness evidence102

rejected Claimant’s submission of 22 November 2019, finding that it was lateand Claimant had failed to ask for an extension of time103

provided the Parties with a draft timetable and instructions for the upcoming hearing104

144.
By Procedural Order No. 20 dated 29 December 2019, the Tribunal

continued to deal with Mr Bulent Gulbahar’s authority to represent Claimant;105

confirmed that the hearing would take place in Helsinki, thereby dismissing concerns which Claimant had expressed earlier, where Claimant had alleged that the safety and security of Claimant’s witnesses would not be guaranteed in Helsinki; 106

confirmed that it had already secured a neutral venue for the hearing.107

145.
By Procedural Order No. 21 dated 6 January 2020, the Tribunal

concluded in the light of an extract from the Business Registration Service Claimant had submitted on 30 December 2019 that Claimant was duly represented by Mr Bulent Gulbahar;108

dealt with a request for disclosure Claimant had filed on 30 December 2019, where Claimant had sought explanations whether or not the President was relying on the assistance of secretarial services, reiterating that the Tribunal had appointed no administrative secretary, but that the President was using secretarial services for clerical issues (e.g., typing, sending of emails, etc);109

dismissed Claimant’s request of 3 December 2019 that Respondent should be ordered to produce certain originals, finding that the request was, in part, time-barred and also too unspecific;110

dismissed a repeated request made by Claimant that it should be allowed to enforce the Tribunal’s document production orders through the assistance of state courts;111

dismissed Claimant’s request of 5 January 2020 that Respondent and/or the witness Anssi Rönnemaa should be compelled to produce written evidence to prove allegations made in Mr Rönnemaa’s witness statement, finding that the credibility of a witness should be tested through cross-examination.112

146.
By Procedural Order No. 22 dated 15 January 2020, the Tribunal cancelled the hearing scheduled for 4 and 5 February 2020 (with a possible extension on 6 and 7 February 2020). This was in compliance with a letter from the ICC Secretary General dated 14 January 2020 by which the latter had asked the Tribunal to suspend its work following the non-payment by Claimant of the readjusted advance on costs. In its Procedural Order No. 22 of 15 January 2020, the Tribunal listed the procedural requests that were open by that point in time and informed the Parties that it would not attend to any further communications from the Parties during the suspension period.
147.
The above sections Vl.a-Vl.e contain only a summary of the proceedings. The Tribunal adds that Respondent was given an opportunity to comment on every application by Claimant, and Respondent made use of this opportunity. Furthermore, the present summary does not deal with the particulars of the taking of witness evidence, which are summarised in Procedural Order No. 19, ¶¶12-47. Lastly, the Tribunal notes that Claimant filed objections against practically every single procedural decision made by the Tribunal.

d. Claimant’s challenges

148.
Claimant repeatedly challenged the members of the Tribunal. Specifically, Claimant filed challenges on 2 May 2019; 20 May 2019; 1 July 2019; 15 August 2019; 6 September 2019; 30 December 2019; 8 January 2020; 13 January 2020; 17 January 2020; 5 February 2020; 13 April 2020; 15 April 2020; 23 April 2020; 23 May 2020; and 3 June 2020.
149.
By the time the present Award on Costs is being signed, the challenges dated 23 May and 3 June 2020 remain open. All other challenges have been rejected by the ICC Court, either on the ground that they were not admissible within the meaning of Art. 14(3) ICC Arbitration Rules,113 or on the ground that they were unjustified on the merits.114
150.
In addition to its challenges, Claimant complained also that the constitution of the Tribunal was irregular and void, stating inter alia that there had been a conspiracy on the part of ICC Austria, the ICC Secretariat and the President of the Tribunal to secure the appointment of the President of the Tribunal.115 Following Claimant’s complaints, the ICC Secretary General referred the matter to ICC Legal Services for investigation. By letter dated 11 September 2019, the ICC General Counsel informed Claimant that he had found no evidence of any irregularities regarding the appointment of the President of the Tribunal. Most recently, by letter dated 15 April 2020, the ICC General Counsel repeated that "the proceedings in arbitration case 23513/FS have been administrated independently, impartially and with utmost integrity, strictly in line with ICC’s obligations and duties pursuant to the ICC Rules of Arbitration, including regarding the constitution of the Arbitral Tribunal".

e. Time limit for the making of the Award

151.
As the Terms of Reference were established on 2 November 2018, the time limit of six months for the making of the award, set out in Art. 31(1) ICC Arbitration Rules, would have expired on 2 June 2019.
152.
The ICC Court extended the time limit for the making of the Award as follows:

On 2 May 2019, the ICC Court extended the time limit until 30 December 2019.116

On 4 December 2019, the ICC Court extended the time limit until 29 May 2020. 117

On 7 May 2020, the ICC Court extended the time limit until 30 June 2020.118

VII. Summary of the proceedings following the suspension (14 January 2020)

153.
In the period from 15 January 2020 to 1 April 2020, the Tribunal kept the proceedings in abeyance, in accordance with the letter of the ICC Secretary General to the Tribunal dated 14 January 2020, inviting the Tribunal to suspend its work.
154.
By email dated 27 March 2020, the ICC Secretariat noted that the balance of the readjusted advance on costs had not been paid and declared that Claimant’s claims were considered withdrawn as of 28 February 2020.119
155.
By letter dated 30 March 2020, Respondent requested the Tribunal to issue an order for termination of the proceedings and to rule on all issues with respect to the costs of the arbitration.
156.
On 31 March 2020, Claimant filed a letter addressed, on the face of it, to Counsel for Respondent, the "International Chamber of Commerce Mr Emmanuel Jolivet", the ICC Secretary General and the "Parties to the ICC Case 23513/FS". The members of the Tribunal were copied on the email carrying the letter. In this letter, Claimant submitted that the Tribunal had become functus officio and was not allowed to make any cost decision.120
157.
By Procedural Order No. 23 dated 1 April 2020, the Tribunal gave the Parties an opportunity to file cost submissions on or before 15 April 2020, and to comment on the cost submission filed by the other side on or before 22 April 2020.
158.
On 2 April 2020 (12:52 PM CET), Claimant sent an email to Counsel for Respondent, the ICC Secretary General, the ICC General Counsel, the ICC Secretariat and the members of the Tribunal stating:

Dear Sirs

TechnoService's submission attached hereto is without prejudice to its assertion that the irregularly and illegally constituted Arbitral Tribunal is now functus officio and its mandate in the Arbitration Case 23513 was terminated with effect from 27 February 2020.

TechnoService initially intended to submit the submission attached hereto, and titled 'Request for Sanctioning and Award of Cost', on 16 January 2020, however, due to the fact that irregularly and illegally constituted Tribunal suspended the arbitration proceedings on the eve of 15 January 2020, TechnoService, consequently, submitted the 'Request for Sanctioning and Award of Cost' to the ICC International Court of Arbitration, as part of its formal objection to the application of Article 37(7) of the ICC Rules, on 10 February 2020.

Since the irregularly and illegally constituted Tribunal purportedly resumed the work in the arbitration proceedings, which is strictly refuted and denied by TechnoService on the basis of the Tribunal being functus officio, TechnoService, hereby, without prejudice and for the sole purpose of protecting its rights submits its 'Request for Sanctioning and Award of Cost'.

159.
As an attachment to this email, Claimant transmitted a memorandum dated 10 February 2020 which contained the "Request for Sanctioning and Award on Costs" referred to in Claimant’s email.
160.
On 7 April 2020 (10:11AM), Claimant sent an email to the ICC Secretariat, Counsel for Respondent, the President of the Tribunal, the ICC Secretary General, the party-nominated arbitrators and the ICC General Counsel. Claimant attached a memorandum to this email which was called "TECHNOSERVICE’S URGENT REQUEST FOR SANCTIONING AND AWARD OF COSTS AGAINST THE RESPONDENT NOKIA & ITS COUNSEL".
161.
On 14 April 2020, Claimant filed an application titled "TECHNOSERVICE’S URGENT REQUEST TO SUSPEND THE FILING OF THE PARTIES’ SUBMISSION ON THE REQUEST FOR AWARD ON COST OR IN THE ALTERNATIVE TO GRANT EXTENSION OF TIME TO FILE ITS SUBMISSION ON THE REQUEST FOR AWARD ON COST". In this submission, Claimant asked the Tribunal to suspend the proceedings pending the decision on its challenge dated 13 April 2020; in the alternative, Claimant asked the Tribunal to grant an extension of time for the filing of its cost submission.
162.
By email of the same day (14 April 2020), Respondent expressed its opposition to these requests.
163.
On the same day (14 April 2020), by Procedural Order No. 24, the Tribunal dismissed Claimant’s requests of 14 April 2020 under the proviso that it would communicate the reasons for its decision in the Award. The Tribunal sets out its reasoning in the following sub-paragraphs:

If a challenge is filed, it is within the discretion of the tribunal to decide, upon a request made by the challenging party, whether the proceedings should be suspended pending the decision on the challenge.121 In the case at hand, Claimant merely stated in its application of 14 April 2020 that it had challenged the members of the Tribunal, without, however, adducing any reasons beyond this to establish that a suspension was necessary.

Moreover, Claimant’s request for an extension of time relied on circumstances of Claimant’s own making, such as the alleged preparation of Claimant’s challenge dated 13 April 2020.

Finally, the Tribunal considers that a deadline of 14 days is sufficient for the preparation of a cost submission.

164.
For these reasons, Claimant’s requests for suspension of the proceedings or extension of time had to be denied.
165.
On 15 April 2020, Claimant filed a submission designated "CHALLENGE & FORMAL OBJECTION AGAINST THE JURISDICTION OF CHRISTIAN ASCHAUER; GEORGES AFFAKI & CHRISTER DANIELSSON ('THE ARBITRATORS' AND/OR 'TRIBUNAL')". In this submission, Claimant repeated its allegation that the Tribunal had become functus officio and requested the Tribunal to "recuse and forthwith refrain from presiding over the terminated proceedings in the ICC Case 23513/FS".
166.
Respondent filed its cost submission on the same day (15 April 2020).
167.
On 22 April 2020, Claimant filed a submission designated "TECHNOSERVICE'S REPLY TO RESPONDENT SUBMISSION TITLED 'STATEMENT OF COST’ DATED 15 APRIL 2020", and Respondent filed comments on Claimant’s 15 April 2020 submission.
168.
By Procedural Order No. 25 dated 23 April 2020, the Tribunal declared the proceedings closed pursuant to Art. 27(a) ICC Arbitration Rules and informed the Parties that it would submit the draft Award to the ICC Court for scrutiny on or before 29 May 2020.

VIII. The Parties’ claims regarding the costs of the arbitration

a. Claimant’s cost claims

169.
In the memorandum dated 10 February 2020, which Claimant had attached to the email of 2 April 2020 (12:52 PM CET)122 Claimant was seeking an award ordering Respondent to reimburse Claimant for the legal costs Claimant had incurred in connection with Respondent’s request for security for costs, the document production phase of the arbitration and Respondent’s Rebuttal, submitting in substance that Respondent and Counsel for Respondent had engaged in procedural misconduct and were therefore liable for costs. By way of a report from Rödl & Partner Limited dated 15 January 2020, Claimant quantified these costs at EUR 678,955.60.
170.
In its memorandum dated 7 April 2020, which Claimant attached to its email of 7 April 2020 (10:11 AM),123 Claimant argued in substance that Respondent had breached its confidentiality obligations and that it was therefore liable to indemnify Claimant for EUR 120,000 plus interest.
171.
In section IX.b, the Tribunal will find that Claimant failed to make the requests contained in the memoranda dated 10 February 2020 and 7 April 2020 in conformity with the applicable procedural law; this notwithstanding, the Tribunal will deal with the substance of the requests contained in the memoranda dated 10 February 2020 and 7 April 2020 in the following section IX.d.
172.
Claimant filed no cost submission on 15 April 2020, which was the deadline set out in Procedural Order No. 23. However, Claimant specified its costs in the second round of cost submissions, i.e. in its submission of 22 April 2020. At ¶58 of its submission dated 22 April 2020, Claimant stated that it had incurred legal and other costs of EUR 1,356,385.40 in addition to the USD 165,000 paid as cost advances. Claimant added124

However, TechnoService at this point in time is only able to hold the Respondent Nokia accountable and liable for the portion in the amount of EUR 798,955.60 (EUR 678,955.60 plus EUR 120,000.00) for the unnecessary work and cost incurred due to the Respondent’s acts of bad faith, fabricating documents, false and deceiving submission and improper conduct in document production as set out and substantiated by TechnoService in the two submissions titled 'Request for Sanctioning and Award of Cost', dated 20 [recte 10] February and 7 April 2020.

173.
As for the balance of EUR 557,424.80, Claimant indicated in its submission of 22 April 2020 that it would recover the same from the Arbitrator nominated by Claimant and the President of the Tribunal, as well as from the ICC and ICC Austria through various lawsuits in different jurisdictions.125

b. Respondent’s cost claims

174.
Respondent filed its cost submission on 15 April 2020, specifying its costs as follows (bold print in the original):126

2. Nokia requests that the Arbitral Tribunal:

(i) order TechnoService Limited to compensate Nokia Corporation in full for party representation costs for the arbitration in the amount of EUR 714,318.64, added with delay interest at the rate specified in Sections 4(1) and 12 of the Finnish Interest Act, beginning to accrue one month from the date of the Arbitral Tribunal's order until payment is made; and

(ii) order TechnoService Limited, as between the Parties, to bear alone all the fees and costs of the Arbitral Tribunal and the ICC International Court of Arbitration, and to compensate Nokia Corporation for the same insofar as these are paid from Nokia Corporation's share of the advance on costs, added with delay interest at the rate specified in Sections 4(1) and 12 of the Finnish Interest Act, beginning to accrue one month from the date of the Arbitral Tribunal's order until payment is made.

175.
Respondent submitted in substance that it had incurred legal costs in the aggregate amount of EUR 703,852.20 in the period from 29 March 2018 to 15 April 2020, as well as other costs (expenses for courier, translation, ordering of court documents, conference call expenses) of EUR 466.44. Furthermore, Respondent was expecting future legal costs of EUR 10,000. Respondent submitted that Counsel for Respondent had been working 2,183.80 hours, with hourly rates between EUR 189 and EUR 549. Counsel for Respondent expressly confirmed that all of these costs and expenses have been incurred. 127
176.
In its cost submission of 15 April 2020, Respondent also submitted that all of its legal and other costs were reasonable within the meaning of Art. 38(1) ICC Arbitration Rules and that Claimant should reimburse Respondent for the entirety of these costs, in addition to the advance payments of USD 492,500 Respondent had transferred to the ICC (or such part of Respondent’s advance payments that would be used to cover the costs of the arbitration). 128
177.
According to Respondent, Claimant should bear the entirety of these costs on the basis of the costs-follow-the-event principle because Claimant had lost the arbitration.129 Furthermore, Claimant’s conduct had been "extraordinarily disruptive and burdensome to all involved". According to Respondent, the Tribunal should take this into account in accordance with Art. 38(5) ICC Rules of Arbitration.130
178.
By submission dated 22 April 2020, Respondent submitted that Claimant had failed to make a proper cost submission in compliance with the instructions of the Tribunal.131 In the alternative, Respondent submitted that Claimant’s requests for sanctioning as contained in the memoranda dated 10 February 2020 and 7 April 2020 would have to be dismissed stating that the costs were unparticularized. 132 Furthermore, Respondent contested that it had breached any confidentiality obligation.133

c. Determination of the costs of the arbitration by the ICC Court

179.
At its session of 20 May 2020, the ICC Court fixed the costs of the arbitration at USD 657,500 (Art. 38(1) ICC Rules of Arbitration).

IX. Tribunal’s decisions regarding the costs of the arbitration

a. Jurisdiction of the Tribunal over the costs of the arbitration or other relevant issues with respect to costs (Art. 38(6) ICC Arbitration Rules)

180.
Art. 38(6) ICC Arbitration Rules provides:

In the event of the withdrawal of all claims or the termination of the arbitration before the rendering of a final award, the Court shall fix the fees and expenses of the arbitrators and the ICC administrative expenses. If the parties have not agreed upon the allocation of the costs of the arbitration or other relevant issues with respect to costs, such matters shall be decided by the arbitral tribunal. [...]

181.
The Tribunal concurs with Respondent 134 that the present situation squarely falls within Art. 38(6) ICC Arbitration Rules. Claimant’s claims are considered withdrawn as of 28 February 2020. As the Parties did not agree on the allocation of costs of the arbitration, this issue remains open and must be decided by the Tribunal. It follows that, contrary to Claimant’s allegations,135 the Tribunal is by no means functus officio. To the contrary, it is vested with the power and has jurisdiction to decide on the "costs of the arbitration or other relevant issues with respect to costs" on the basis of Art. 38(6) ICC Arbitration Rules.
182.
Claimant submits that Respondent should have requested the ICC Secretary General to invite the Tribunal to resume its work for the purpose of issuing an award on costs. As Respondent failed to do this, in the opinion of Claimant Art. 38(6) ICC Arbitration Rules does not apply.136
183.
The Tribunal notes that, according to Art. 38(6) ICC Arbitration Rules, the Tribunal is empowered to decide on the costs of the arbitration regardless whether or not it has been invited to do so by the ICC Secretary General.
184.
Furthermore, and contrary to what Claimant has also been alleging137 the Tribunal did not bind itself to decide on the costs of the arbitration only upon invitation of the Secretary General. While it is correct that the Tribunal noted in Procedural Order No. 22138

18. During the suspension period, and without prejudice to the pending challenges, the Tribunal will not attend to any communications unless and until the Secretary General invites the Tribunal to resume its work.

this information made only clear that the Tribunal would not deal with any communications during the suspension period unless invited by the ICC Secretary General. It does not say anything about the procedure, if any, that would be applied in regard of the costs of the arbitration or other relevant issues with regard to costs.

185.
For these reasons, Claimant’s jurisdictional objection is dismissed in its entirety.

b. Claimant failed to make its own cost claims in conformity with the Tribunal’s instructions

186.
Respondent submits that Claimant failed to make its own cost claims. According to Respondent, the two memoranda dated 10 February 2020 and 7 April 2020 were unsolicited and cannot be deemed as proper cost submissions139
187.
As stated140 Claimant’s memorandum dated 10 February 2020 was attached to an email which Claimant had sent, on 2 April 2020 to Counsel for Respondent, the ICC Secretary General, the ICC General Counsel, the ICC Secretariat and the members of the Tribunal. It was not addressed to the Tribunal, but the Tribunal was only copied on the email carrying the memorandum. Claimant did the same with the memorandum dated 7 April 2020.
188.
The Tribunal recalls that it had previously indicated in no uncertain terms to Claimant that it would not attend to communications and notifications that are not properly submitted to the Tribunal, stating the following in its Procedural Order No. 19 : 141

VIII. Filing of written communications and notifications

97. As the present Procedural Order shows, Claimant has repeatedly sent letters to the members or officers of the ICC, the International Court of Arbitration of the ICC and its secretariat even though they concern matters and contain requests falling within the exclusive jurisdiction of the Tribunal. The Tribunal was informed about these letters only because Claimant copied the members of the Tribunal on the email carrying these letters.

98. In Procedural Order No. 15, the Tribunal has already directed Claimant to 'submit to the Tribunal all matters that do not fall within the administrative attributions of the International Court of Arbitration of the ICC' in the future. The Tribunal reaffirms this order. In the future, the Tribunal will not consider letters and/or requests unless they have been properly submitted to the Tribunal and explicitly addressed on their face to the Tribunal.

99. Furthermore, any communication between the Parties in emails or correspondence is not part of the evidential record and has no impact on the present arbitration, regardless whether or not the Tribunal is copied on these correspondences.

189.
Hence, Claimant failed to make its own cost claims in conformity with the Tribunal’s instructions. That notwithstanding, the Tribunal will consider the substance of Claimant’s memoranda of 10 February 2020 and 7 April 2020 in the paragraphs which follow.

c. No party agreement on costs

190.
Dealing with the reasonableness of the Parties’ costs and their apportionment between the Parties, the Tribunal notes at the outset that the Parties concluded no specific agreement on the amount and the allocation of costs.

d. Apportionment of costs

191.
In its cost submission of 15 April 2020, Respondent requested the Tribunal to apply the costs-follow-the-event rule and to find that Claimant had lost the arbitration.
192.
Claimant alleged in its submission of 22 April 2020 that there was no "successful/unsuccessful" party in the case at hand because the dispute had not been decided on the merits. Had Respondent been convinced of its success, Claimant submits, then Respondent could and should have paid Claimant’s share of the readjusted advance on costs.142
193.
To allocate the costs of the arbitration, the Tribunal takes account of Art. 38(5) ICC Arbitration Rules which states that "in making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant". This rule provides an arbitral tribunal with a wide margin of discretion when deciding on costs.
194.
In the case at hand, it is clear that Claimant initiated the arbitration, increased the amount of its claim 14fold, but subsequently failed to pay the balance of the readjusted advance on costs, thereby allowing its claim to be considered withdrawn. Claimant failed to pursue its claim in the present arbitration diligently and in compliance with the procedural directions set by the Tribunal and Art. 37(4) ICC Arbitration Rules, which states that the Parties have to make advance payments as decided by the Court.
195.
Art. 38(5) ICC Arbitration Rules invites the Tribunal to take account of the procedural conduct of the parties. This rule is reflected in the Tribunal’s Procedural Order No. 1, ¶34, where the Tribunal advised the Parties from the outset of the proceedings:

In making decisions as to costs, the Tribunal will take into account such circumstances as it considers relevant, including the extent to which a Party has conducted the arbitration in an expeditious and cost-effective manner and complied with time limits as well as Procedural Orders and instructions given by the Tribunal.

196.
The Tribunal can only concur with Respondent that Claimant’s conduct has been "extraordinarily disruptive and burdensome".143 This can be seen in detail in the summary of the proceedings supra in section IV. Among other instances of disruptive conduct, Claimant

repeatedly missed procedural deadlines;

made repetitive and ultimately unsuccessful procedural requests such as, in particular, Claimant’s repeated and unsuccessful requests to enforce the Tribunal’s document production orders through the assistance of state courts, to allow the examination of witnesses by state courts, or to reject Respondent’s Rebuttal dated 30 July 2019;

asked the Tribunal for permission to file an expert report on quantum outside the procedural timetable, requested an extension of time for the filing of the expert report on quantum, and ultimately never submitted any expert report on quantum at all;

repeatedly requested a stay of the proceedings for no valid reason;

failed to cooperate in order to organize the hearing of witnesses at the place of the arbitration;

"withdrew" its consent to hold the hearing in Helsinki even though this had been the place of arbitration agreed in the arbitration agreement and the Terms of Reference; and,

initiated a series of unfounded challenges.

197.
Claimant’s conduct summarised above has been extraordinarily disruptive and caused unnecessary time and costs to all the persons involved in this arbitration. As such, Claimant shall be ordered to bear the resulting costs of this arbitration.
198.
The Tribunal will now turn to the substance of Claimant’s memoranda of 10 February 2020 and 7 April 2020, respectively.
199.
In its memorandum of 10 February 2020, Claimant argued that Respondent had "maliciously and deliberately" filed its request for security for costs dated 9 November 2018 in an attempt to prevent Claimant from having access to justice; produced a forged document in support of its request for security for costs; failed to comply with the Tribunal’s document production orders; and, submitted a Reply that went beyond the scope permitted under the Timetable. Claimant claimed that all this formed a pattern of misconduct on the part of Respondent and Counsel for Respondent. To sanction Respondent, Claimant sought in its memorandum of 10 February 2020 an award ordering Respondent to reimburse Claimant for the legal costs Claimant had incurred in connection with Respondent’s request for security for costs, the document production phase of the arbitration and Respondent’s rebuttal. Referring to a report from Rödl & Partner Limited dated 15 January 2020, Claimant quantified those costs at EUR 678,955.60.
200.
The allegations summarized in the previous paragraph do not withstand scrutiny: The Tribunal has already dealt with Respondent’s request for security for costs, Claimant’s request for sanctioning against Respondent and its Counsel dated 17 April 2019 (which Claimant filed on the ground that Respondent had, allegedly, submitted a fabricated document), all aspects of document production, and the admissibility of Respondent’s Reply dated 29 July 2020. At the present final stage of the proceedings, these decisions cannot be second-guessed or reopened. The Tribunal does not find that Respondent failed to conduct the arbitration in an expeditious and cost-effective manner so as to be relevant for the purpose of Art. 38(5) ICC Arbitration Rules. Hence, there is nothing in the memorandum of 10 February 2020 that might change the Tribunal’s cost decision.
201.
In its memorandum dated 7 April 2020, Claimant argued in substance that Respondent was liable to reimburse Claimant for the costs incurred out of and in connection with Claimant’s urgent request dated 18 October 2018 for an order regarding the confidentiality of the proceedings.144 Claimant referred to an affidavit issued by Ms Cynthia Randall, from Microsoft, dated 19 March 2020 which Microsoft had submitted in proceedings pending before the High Court of Kenya, Commercial & Admiralty Division where Claimant is plaintiff. According to Claimant, this affidavit allegedly shows that Respondent breached its confidentiality obligation vis-a-vis Microsoft under Procedural Order No. 4.145 On this basis, Claimant requests that Respondent be sanctioned for misconduct, and ordered to indemnify Claimant for EUR 120,000 plus interest.
202.
However, neither the copy of Respondent’s 9 November 2018 request for security for costs nor the Tribunal’s Procedural Order No. 4 fall within the scope of Procedural Order No. 4. First, it is noted at the outset that the Tribunal dismissed in Procedural Order No. 4 Claimant’s request dated 18 October 2018 for an order regarding the confidentiality of the proceedings. As further indicated in that Procedural Order, the Tribunal found inter alia that Claimant overrode the confidentiality clause contained in Art. 17.1 of the Frame Repair Service Agreement by writing letters to M[icrosoft]M[obile]O[y]146 and that Respondent must be allowed to gather information and evidence regarding the issue whether Claimant continued its business relationship with MMO.147
203.
While the Tribunal further ordered in Procedural Order No. 4 that Respondent refrain from providing MMO or any third party or entity with "copies of submissions made or any documents filed in the present arbitration, or with any minutes of meetings or hearings"148, it is patent that Respondent’s request for security for costs was filed in the present arbitration on 9 November 2018, prior to the issue of Procedural Order No, and that Procedural Order No. 4 is not a "submission made" or a "document filed" as stated in the Procedural Order. For these reasons, as stated, they do not fall under the scope of Procedural Order No. 4.
204.
In addition, Ms Randall says in ¶20 of her affidavit dated 19 March 2020 that she was in possession of Respondent’s 9 November 2018 request for security for costs because Claimant itself submitted it to the High Court of Kenya in Nairobi, Commercial & Admiralty Division.
205.
Furthermore, and importantly, Claimant does not establish how Respondent’s alleged breach of confidentiality has caused a damage of EUR 120,000 as quantified by Claimant. Claimant fails to evidence its loss and any causation with the alleged breach which is not evidenced either.
206.
For these reasons, the requests made in Claimant’s memorandum of 7 April 2020, had they been made in compliance with the procedural directions set out by the Tribunal, would have had no bearing on the Tribunal’s cost decision.
207.
The Tribunal will now turn to Claimant’s memorandum dated 21 May 2020, as this is related to the requests contained in Claimant’s memorandum dated 7 April 2020.
208.
On 21 May 2020, Claimant filed a memorandum designated "URGENT REQUEST TO SUBMIT AND ADMIT NEW EVIDENCE IN ARBITRATION PROCEEDINGS IN SUPPORT OF TECHNOSERVICE’S REQUEST FOR SANCTIONING AND AWARD OF COSTS". In that memorandum, Claimant submitted that it had had an opportunity to peruse the documents accompanying Ms Cynthia Randall’s 19 March 2020 affidavit only on 19 May 2020 (because it had received them only the day before) and that it had, in doing so, found Respondent’s 9 November 2018 request for security for costs and a notarized copy of the Tribunal’s Procedural Order No. 4 dated 6 December 2018.149 Claimant characterises those documents as an evidence that Respondent and its counsel breached the Tribunal’s Procedural Orders "and conspired with Microsoft to defeat justice".150
209.
In reviewing the Parties’ arguments, the Tribunal notes that Respondent does not dispute that Ms Cynthia Randall submitted Respondent’s 9 November 2018 request for security for costs and/or the Tribunal’s Procedural Order No. 4 to the High Court of Kenya in Nairobi, Admiralty Division. In her affidavit dated 11 March 2020 (which Claimant already submitted together with its memorandum dated 7 April 2020), Ms Randall stated that she was attaching copies of these documents as Annex "MIC-7"151. Respondent merely contests that there had been a breach of confidentiality.152 This matter has already been dealt with supra, 202-206. The Tribunal therefore finds that the "new evidence" as contended by Claimant is irrelevant for this stage of the proceedings. The Tribunal therefore dismisses Claimant’s request for leave to submit that evidence.
210.
The Tribunal will now turn to the reasonableness of Respondent’s costs.

e. Reasonableness of Respondent’s costs

211.
The Tribunal finds that the Respondent’s legal and other costs as communicated in Respondent’s cost submission of 15 April 2020 (EUR 714,318.64) are reasonable within the meaning of Art. 38(1) ICC Rules of Arbitration. Counsel for Respondent submits in its 15 April 2020 cost submission that it has been working 2,183 hours on the present case. Considering the nature of the dispute, the extraordinary number of applications, objections and challenges submitted by Claimant in this arbitration, the Tribunal finds that the time claimed by Counsel for Respondent is reasonable. In addition, hourly rates between EUR 189 and EUR 549 are commensurate with the complexity and value of the dispute and the professional standing of counsel. It is also reasonable that a further EUR 10,000 was necessary for commenting on Claimant’s submission of 15 April 2020 and/or will be necessary for other measures up until the termination of the arbitration153 and that expenses of EUR 466.44 have arisen154
212.
Claimant submitted that the Tribunal should "verify" the costs claimed by Respondent and that any Award on costs issued without "proper verification" would be "arbitrary and, thus, unenforceable"155 However, Claimant fails to specify why, in Claimant’s opinion, Respondent’s legal and other costs of EUR 714,318.64 might be unreasonable, when Claimant itself claims to have incurred legal and other costs of EUR 1,356,385.40,156 which is almost twice what Respondent is claiming. For this reason, too, the Tribunal considers that Respondent has established its entitlement to the legal and other arbitration costs as claimed by Respondent.
213.
For the sake of completeness, the Tribunal notes that the advance payments Respondent had to transfer to the ICC to cover its share of the costs of the arbitration (administrative expenses and fees of the Tribunal) amount to USD 492,000.
214.
For these reasons, the Tribunal orders that Claimant shall compensate Respondent (i) for the entirety of Respondent’s legal and other costs of EUR 714,318.64, and (ii) for the costs of the arbitration of USD 492,500.
215.
As submitted by Respondent157 and not specifically contested by Claimant in its submission dated 22 April 2020, the amounts payable by Claimant are subject to simple interest under Section 4(1) and Section 12 Finnish Interest Act, which sets out a rate of seven percentage points above the most recent reference rate applied by the European Central Bank for refinancing operations. As this rate is presently set at zero, the interest rate which applies currently is 7 percent. Interest starts to run, as requested by Respondent, one month as from the date of the present Award on Costs until full payment by Claimant.
216.
It is confirmed that the Tribunal has considered all of the Parties’ evidence and submissions, even where they are not specifically referred to in the present Award on Costs, in order to deliberate and agree on the following unanimous decisions:

X. Dispositive section

217.
For all the reasons stated in this Award, the Tribunal hereby--------

(i) declares that the proceedings on Claimant’s claims are terminated;--

(ii) finds that it has jurisdiction over the Parties’ claims regarding the costs of the arbitration and other relevant issues with respect to costs (Art. 38(6) ICC Rules of Arbitration);---------------------

(iii) orders Claimant to compensate Respondent in full for party representation costs of the arbitration in the amount of EUR 714,318.64 (in words: seven hundred fourteen thousand three hundred eighteen Euro and sixty-four Eurocent), added with simple delay interest at the rate of currently 7% (in words: seven percent) as specified in Sections 4(1) and 12 of the Finnish Interest Act, beginning to accrue one month from the date of this Award until full payment is made;-------

(iv) orders Claimant to bear alone all the arbitration costs fixed by the ICC International Court of Arbitration on 20 May 2020, and to pay Respondent the costs of the arbitration in the amount of USD 492,500 (in words: four hundred ninety two thousand and five hundred US Dollar), added with simple delay interest at the rate of currently 7% (in words: seven percent) as specified in Sections 4(1) and 12 of the Finnish Interest Act, beginning to accrue one month from the date of this Award untii full payment is made; and,---————--------------------

(v) dismisses all other claims regarding costs made in the present arbitration.

Whole document
para.
Click on the text to select an element Click elsewhere to unselect an element
Select a key word :
1 /

Instantly access the most relevant case law, treaties and doctrine.

Start your Free Trial

Already registered ?