3.11.1 breach of Sub-Clause 1.9 – alleging significantly delayed drawings and instructions throughout the life of the NLGM project;
3.11.2 breach of Sub-Clause 3.1 – alleging that unreasonable design constraints were put on the Engineer in contravention of this clause;
3.11.3 breach of Sub-Clause 4.7 – alleging in outline that the as-built NLGM project was essentially a new project that had not been designed at the time ICE mobilised;
3.11.4 breach of Sub-Clauses 13.1 and 12.3 – alleging that the Respondent had an obligation to issue a variation order for changes to the scope of the works, including changes in quantities, qualities, characteristics, levels, dimensions, and changes to the sequence, timing, and execution of the works;
3.11.5 breach of Sub-Clause 13.8 – alleging entitlement to an adjustment of the price due to inflation;
3.11.6 breach of Sub-Clause 14.1 alleging that the Claimant was entitled to a Variation Order with an adjustment to the contract price to reflect the changes to the NLGM project as it evolved and not, as it argued the Respondent had done, to treat the NLGM project as a lump sum contract;
3.11.7 breach of Sub-Clause 14.8 alleging that the Claimant was entitled to an annual financing charge of 3.75% compounded monthly for late payments; and
3.11.8 breach of Sub-Clause 15.3 alleging that following termination the Respondent had an obligation (through its Engineer) to agree or determine amongst other things the value of the works, goods, and any other items due to the Claimant – but failed to do so.
(f) the arbitral seat shall be in London, England;
(g) the language used in the arbitration proceedings shall be English;
(h) there shall be a sole arbitrator; and
(i) the governing law of the Arbitration Agreement is the law of South Africa.
5.1.1 15th February 2016 - First Procedural Order
5.1.2 17th March 2016 - Decision on the Respondent's Application of 16 March 2016 to vary the timetable
5.1.3 22nd March 2016 - Decision on the Respondent's Application for the Claimant to provide security for costs
5.1.4 6th April 2016 - Decision on the Claimant's Application for leave to serve a Sur-Reply
5.1.5 11th April 2016 - Decision on costs in the security for costs application
5.1.6 11th April 2016 - Decision on Disclosure
5.1.7 11th April 2016 – Award on Jurisdiction
5.1.8 24th April 2016 - Decision on Reconsideration of Award and Related Matters
5.1.9 19th May 2016 - Decision on Cost Submissions relating to Jurisdiction and Reconsideration
5.1.10 1st June 2016 - Decision on Timetabling and Further Request
5.1.11 7th July 2016 - Second Procedural Order
5.1.12 1st September 2016 - Decision on Redfern
5.1.13 2nd September 2016 - Decision on Disclosure
5.1.14 5th September 2016 - Decision on the Application to Order the Claimant to provide Further and Better Particulars
5.1.15 22nd September 2016 - Decision on Disclosure
5.1.16 26th September 2016 - Decision on the Exchange and Service of Witness Statements and Amended Timetable
5.1.17 29th September 2016 - Direction for an Additional Preliminary Hearing
5.1.18 8th October 2016 - Third Procedural Order
5.1.19 19th October 2016 - Decision after Additional Preliminary Hearing
7.5.1 Mr Alistair Sutherland, now a Senior Project Planner with an unrelated new employer, who had until July 2016 worked for DRA as a project planner on the NLGM project.
7.5.2 Mr David Reading who was from 1st February 2011 until 15th July 2016 President and CEO of Aureus. He was also a director of the Respondent (BMMC) from 2nd March 2011 until 2016.
7.5.3 Mr Gawie van der Westhuizen, who was the Construction Manager for the NLGM project from January 2013 to August 2015. He was responsible for managing the construction at the mine on behalf of the Respondent.
7.5.4 Mr Paul Thompson who became the CFO of Aureus on 1st September 2011. He was also a director of the Respondent (BMMC) from 19th November 2012 a role that included overseeing the activities in Liberia including those at NLGM. He provided two witness statements.
7.5.5 Mr Marthinus Strydom who was and is the General Manager of Construction and Operations for the NLGM in Liberia on behalf of the Respondent. He held that appointment from August 2012. He was also a director of BMMC having been appointed on 19th November 2012.
7.5.6 Mr Philip Welchman who is a Senior Civil Project Engineer employed by DRA, the Engineer. He began work on the NLGM project in January 2012, during the pre-feasibility and definitive feasibility study phase.
7.5.7 Mr Robin Welsh who is a General Manager employed by DRA, the Engineer in Cape Town. He described DRA's operations in detail and its retention as the Engineer. He was able to identify DRA's staff and their roles. He made regular site visits to NLGM as well as attending meetings in various offices.
7.5.8 Mr Ross McGregor who was the Independent Quantity Surveyor on the NLGM project between July 2012 and September 2015. He worked alongside DRA but was employed by R&R having been with that company since 1995. He exhibited more than 20 years of industry experience.
7.5.9 Mr Van Aardt Cloete who is employed by DRA as a Quantity Surveyor. He joined DRA in 2010 and became a registered Quantity Surveyor in 2014, having in the past been in effect supervised professionally by, amongst others, Mr McGregor. Mr Cloete worked on the definitive feasibility stage and later as the Engineer's Quantity Surveyor amongst other things reviewing monthly payment applications and Site Variation Requests ("SVRs").
8.2.1 Addendum 1, 25th March 2013
8.2.2 Addendum 2, 25 March 2013
8.2.3 Addendum 3, 17th May 2013
8.2.4 Addendum 4, 19th April 2013
8.2.5 Addendum 5, 9th August 2013
8.2.6 Addendum 6, 12th December 2013
8.2.7 Addendum 7, 12th December 2013
8.2.8 Addendum 8, 3rd February 2014
8.2.9 Addendum 9, 3rd February 2014
8.2.10 Addendum 10, 3rd February 2014
8.2.11 Addendum 11, 14th February 2014
8.2.12 Addendum 12, 24th May 2014
Variations may be initiated by the Engineer at any time prior to issuing the Taking-Over Certificate for the Works, either by an instruction or by a request for the Contractor to submit a proposal.
The Contractor shall execute and be bound by each Variation, unless the Contractor promptly (but in any event within not more than 7 days unless otherwise agreed by the Engineer) gives notice to the Engineer stating (with supporting particulars) that the Contractor cannot readily obtain the Goods required for the Variation. Upon receiving this notice, the Engineer shall cancel, confirm or vary the instruction.
Each Variation may include:
(a) changes to the quantities of any item of work included in the Contract (however, such changes do not necessarily constitute a Variation),
(b) change to the quality and other characteristics of any item of work,
(c) changes to the levels, positions and/or dimensions of any part of Works,
(d) omission of any work, including where it is to be carried out by others,
(e) any additional work, Plant, Materials or services necessary for the Permanent Works, including any associated Tests on Completion, boreholes and other testing and exploratory work, or
(f) changes to the sequence or timing of the execution of the Works.
A Variation may comprise the omission of any work which is to be carried out by others. Without derogating from the foregoing, the Engineer may, by way of a Variation, where the Contractor is in default, omit any part of the Works. In such event the Engineer shall first give notice to the Contractor to make good the failure in accordance with Sub-Clause 15.1 [Notice to Correct]. Such omission may include any part of the Works which, in the opinion of the Engineer, should be omitted to allow the default to be remedied by the Contractor (whether by the reallocation of resources or otherwise) or by others.
The Contractor shall not make any alteration and/or modification of the Permanent Works. Unless and until the Engineer instructs or approves a Variation.
"9. In its simplest form, ICE's claim can be described as follows:
* Did BMMC instruct a Variation? The answer is Yes.
* Was that Variation very significant? The answer is Yes.
* Did ICE perform, and implement the significant Variation as instructed by BMMC? Yes.
* Should BMMC have consulted and negotiated with ICE on how to pay for that significant Variation? The answer is Yes.
* Should BMMC have agreed to re-rate the Contract Price to pay for the significant Variation? The answer is Yes.
* Did BMMC consult with ICE, and did BMMC re-rate the Contract Price? The Answer is No.
* Was ICE fairly paid for implementing this significant Variation? The Answer is No."
"Variations may be initiated by the Engineer at any time prior to issuing the Taking-Over Certificate for the Works, either by an instruction or by a request for the Contractor to submit a proposal. The Contractor shall execute and be bound by each Variation, unless the Contractor promptly gives notice to the Engineer stating (with supporting particulars) that the Contractor cannot readily obtain the Goods required for the Variation. Upon receiving this notice, the Engineer shall cancel, confirm or vary the instruction."
4 There's no dispute here that the contract that was
5 signed was for one thing and what was built was different.
6 That's absolutely agreed. And it's absolutely agreed that
7 that can be termed as a variation. The issue is what does
8 that mean in -- what do the rest of the clauses of the
9 contract mean in those circumstances?
10 And there are two fundamental flaws with ICE's
11 claim in this regard. The first is that irrespective of
12 whether ICE say there was no agreement as to the variation
13 in the addenda, they can't get away from the fact that there
14 was a determination. And what Mr Chang carefully did, as he
15 went through the contract, is he carefully side stepped what
16 clause 3.5 actually says.
17 And if we go to clause 3.5 to the contract. I'm
18 using the composite contract. The reference for that, for
19 your note, is C4, tab 26, page 1090.
20 What that says is -- there are two paragraphs in
21 clause 3.5. And the second:
22 "The engineer shall give notice to both parties of
23 each agreement or determination with supporting particulars.
24 Each party shall give effect to each agreement or
25 determination unless or until revised under clause 20."
70 :1 So what that shows is whether ICE manages to
2 establish that BoQ 9, for some reason which escapes BMMC,
3 agreed an awful lot of things but managed to carve out the
4 variation, what BoQ 9 undoubtedly did is it determined the
5 price for, for example, excavation.
6 If ICE considered that that price was
7 inappropriate, it goes to the contract, it says: the price
8 has been determined. The rate has been determined. That's
9 under clause 12. Clause 12 says I go to 3.5. 3.5 says if
10 I don't like it I bring a claim under clause 20.1.
11 Mr Chang has decided to ignore that entirely. And
12 he's not dealt with it in his opening at all. That's
13 despite the fact that that, along with a number of other
14 things, BMMC has been, in my submission, very helpful in its
15 opening in candidly saying: these are the real issues. And
16 if we want to assist in getting to the truth of this matter,
17 these are questions that need to be answered. That was one
18 question that was put to ICE in the opening. And they've
19 decided not to answer it. Clearly, sir, you will draw the
20 appropriate conclusion from Mr Chang's decision on (that point).
135 Purely as a matter of contractual construction (regardless of contrary evidence), if ICE could say that:
a) BMMC/DRA ordered a Variation,
b) that the Variation required a change in the rates ultimately agreed under the Contract (which would include an addition of appropriate rates),
c) that the change in rates was never determined or agreed, and
d) that the change in rates being requested by ICE was the appropriate rate to do the works without any disruption caused by BMMC, then ICE may have a claim.
136 ICE can only succeed on the first one of the four criteria set out above; that obviously means that ICE's claim fails.
2 Q. That's okay. I don't think that changes my next
3 question, which is that if -- if a -- if such a variation --
4 design information is -- design information is issued after
5 commencement of work, and it is -- the -- excuse me, the
6 employer, as you state, is entitled to do so because of
7 13.1(c), if that variation occurs at the outset of the
8 project then, at clause 13.3, each -- that variation would
9 then be valued under clause 12; correct?
10 A. If the design information constitutes a variation,
11 that's correct.
12 Q. Okay. Thank you. And under sub-clause 12.3, if
13 that variation, assuming it is a variation, if the drawing
14 counts as a variation, if that -- under sub-clause 12.3, if
15 that variation is issued it is then evaluated using the
16 determination procedure at 3.5; correct?
17 A. Well, it's, first of all, valued in accordance with
18 clause 12.3. And if there is disagreement then it goes to
19 determination in accordance with clause 3.5.
20 Q. Okay. So there is -- but there is a -- there would
21 be a meeting between the engineer and the contractor to
22 agree on that variation, whether there's a re-rate or not or
23 a reprice or not?
24 A. In my experience, invariably.
"Nice job on the register, BUT WE STILL NEED A COST IMPLICATION SECTION AND REVIEW IMMEDIATELY UPON RECEIPT OF ANY DRAWINGS.
Please note that if the actual plant is built on the hillside we need to review all cost with the client (Owen) as there will surely have cost impacts to the unit rates as the original proposal was building on a flat area, also we do not have geo tech reports for anything other than the original areas of work….
Please add this section. If there is cost implication then you would send out a VARIANCE REQUEST PROPOSAL, ONCE APPROVED IT IS FOLLOWED BY AN ACTUAL VARIANCE. These are logged and filed in the Variance files.
THIS DRAWING HAS NO IMPLICATIONS".
"Don't you dare pull this shit with me… I will give the whole lot of you a variation order you will not like… the marching kind…
Jo, we will discuss this tomorrow, e-mail no good…"
"…assume you can change the scope and not have cost associated Up or Down. NOTHING HAS CHANGED TO DATE, But I am aware of the proposed plant location and it is certainly a topic of discussion.
I can help with this.
We are on your team Thinus, I think you know that, nobody wants variations and we hope there are none."
"Now, if Mr Fisher really wanted a variation, he should have picked up the phone and called me and said: Thinus, I'm in trouble or: we're in trouble, because we were in it together. Remember, I had a lot riding on this. I was the flag bearer for ICE. I was the one who said to my guys: look, these guys can do the job. If Ed had rang me up and said: look, this is what we've got to do. I need your help. I would have helped, sir, because my reputation was also at stake."
'That e-mail from the 31st, you know, we talked about the intimidation part. We're not talking about the language. I've used worse language that. I was in the army and I've been in West Africa for years. It's not the language; it's the fact that we understood that if we were going to make a ruckus about what we believed we were owed at the time, that all of us were going home.
'I do not want to get trapped into this our schedule is based on the ORIGINAL project NOT the revisions and each revision, despite what Thinus thinks WILL get a review and costed'.
"We need to talk about a substantial ICE claim, ICE priced this job based on the original logistical layout of the site. After this was done, the layout and the position of the plant, TSF and Camp David changed. Due to this, a couple of facts came into play of which one is the transport of people to site which was never estimated for. The second thing is that we now need more supervision because of the distance between sites due to the revised plant, TSF and Camp David allocations. All of this had a cost impact and needs to be looked at seriously if we want to assist ICE with the current financial dilemma they are in. It is all valid and a reality.
"We need to talk about a substantial ICE Claim. ICE priced this job based on the original logistical layout of the site. After this was done, the layout and position of the plant, TSF and Camp David changed…All this had a cost impact and needs to be looked at seriously if we want to assist ICE with the current financial dilemma they are in. It is all valid and [a] reality."
9.57.1 that due to Mr Strydom's alleged refusal to deal with the "so called" Variation on 31 January 2013 [D16/5517], ICE was entitled to delay bringing its claim for a Variation and all the alleged delay and disruption which went with it; and
9.57.2 under the Contract it was DRA's or BMMC's obligation to re-rate the Contract (i.e. price the Variation) which ICE alleges that DRA or BMMC failed to do so: on that basis ICE was entitled to wait until this Arbitration to bring its claim.
Q. Mr Fisher is saying is: due to these changes, we – that will cost BMMC, quite understandably?
A. Yes, sir.
Q. And we will cost those changes?
A. Yes, sir. That's right.
Q. And the way you cost those changes is by renegotiating the BoQ?
A. That's right.
Q. So is it your understanding at the time that because the quantities could not be relied on due to the redesign that you were updating the BoQ, submitting that to Aureus and then going to be issuing that to ICE?
A. That is correct.
Q. Just to recap, in February 2013 you have already understood – or even January, really – no, February 2013, given the schedule being pushed out, you asked ICE to put together a Ps and Gs package for the additional time, and at around the same time you understood that the quantities were decreasing and you were putting together a new BoQ to reflect the decrease in quantities which you were going to issue to Aureus, and there was nothing controversial about that?
A. No. There's nothing controversial. There should be nothing contested about that. The discussions on site and indeed via email between my team on site, my team in the design office, under Philip's guidance, and between ICE as the contractor on site, everybody was kept fully in the loop as to what the changes were and what the change in philosophy of the design was and what the likely outcome was of the revised quantities. Just to go back to one of your comments about reduced quantities. Some of the quantities were reduced and others were increased. There's a swings-and-roundabouts effect from the design change.
…performs the Works such [that] in the reasonable opinion of the Employer the Contractor will not complete the Works by the time stipulated by the Contract.
"Carla and I [DRA] had a rather long conversation about this. The fact of the matter is that ICE have not yet defaulted, so whichever way you look at it, there is NO remedy in the contract that can possibly address an anticipatory breach or default."
If the Contractor fails to carry out any obligation under the Contract, the Engineer may by notice require the Contractor to make good the failure and to remedy it within a specified reasonable time.
The Employer shall be entitled to terminate the Contract if the Contractor:
(a) fails to comply with Sub-Clause 4.2 [Performance Security] or with a notice under Sub-Clause 15.1 [Notice to Correct].
(b) abandons the Works or otherwise plainly demonstrates the intention not to continue performance of his obligations under the Contract.
(c) without reasonable excuse fails:
(i) to proceed with the Works in accordance with Clause 8 [Commencement. Delays and Suspension], or
(ii) to comply with a notice issued under Sub-Clause 7.5 [Rejection] or Sub-Clause 7.6 [Remedial Work], within 28 days after receiving it….
(g) the Contractor does not proceed in the performance of the Contract in a timely manner or performs the Works such in the reasonable opinion of the Employer the Contractor will not complete the Works by the time stipulated by the Contract.
(h) the Contractor fails to achieve a Key Date Milestone;
In any of these events or circumstances, the Employer may (unless the Contractor provides a rectification plan to the Employer that demonstrates the Contractor's failures are capable of remedy and are remedied by the Contractor within twenty (20) days of notification and the Employer is satisfied that a Taking- Over Certificate for the Works is likely to have occurred before the Longstop Date then), upon giving 28 days' notice to the Contractor, terminate the Contract and expel the Contractor from the Site. However, in the case of sub-paragraph (e) or (f), the Employer may by notice terminate the Contract immediately.
(g) the Contractor does not proceed in the performance of the Contract in a timely manner or performs the Works such in the reasonable opinion of the Employer the Contractor will not complete the Works by the time stipulated by the Contract.
The Claimant (specifically at paragraphs 564 to 568 of its written closings) relies on the case of Fiona Trust. The Respondent simply states that Fiona Trust does not assist the Claimant for the reasons which the Claimant made clear in its oral opening (see pages 90 to 91 and 93 to 96 of the transcript for day 1 of the hearing). Put succinctly this is because the way the Claimant seeks to rely on quantum meruit is as a cause of action in restitution, which is not something which arises out of the Contract.
"[a] contract to do a specified work for an agreed price can from its very beginning be so altered by the owner and carried out by the contractor that it can be said that for the original contract there was tacitly substituted a new agreement in terms whereof the contractor was entitled to reasonable remuneration for the work."
10.2.1 BMMC was entitled to terminate the Contract on account of ICE's breaches; and
10.2.2 on account of ICE's breaches of Contract BMMC is entitled to recover the increased costs which it had to pay to complete the Works.
39 Award of Costs
39.1 Unless the arbitration agreement otherwise provides, or the parties otherwise agree, the award of costs shall be at the discretion of the Arbitrator who may direct the costs to be taxed, alternatively, may himself settle the costs.
39.2 If the Arbitrator settles the costs he shall be entitled to employ the services of a professional taxing consultant to assist him in determining the amount of such costs to be awarded. However, in determining such costs the Arbitrator shall also be guided by the provisions of Rules 39.4 and 39.9.
39.3 In the event of the Arbitrator employing the services of a professional taxing consultant, the costs thereof shall be costs in the cause subject to the Arbitrator's directive as to costs in his final award.
39.4 Disbursements made by a successful party to his representative in the proceedings shall be recoverable by way of an Award of costs on a scale to be agreed between the parties, or if not so agreed, to be determined by the Arbitrator who may, in his sole discretion, direct that such costs shall be taxed in accordance with Section 35 of the Arbitration Act.
39.5 If the parties agree that the costs be taxed by the Taxing Master of the Court and the Taxing Master refuses or is unable to tax such costs, then the matter shall revert to the Arbitrator who shall either refer the costs to be taxed by such professional taxing service as may be agreed or, in the absence of agreement, as he may himself appoint, or make an award of such costs as he deems reasonable in the circumstances.
39.6 The Arbitrator may direct that recoverable costs of the arbitration, or any part of the arbitral proceedings, should be limited to a specified amount and/or duration of the hearing and/or in any other appropriate manner.
39.7 Any directive made by the Arbitrator under Rule 39.6 may be varied at any stage provided that a direction for the limitation of costs or any variation thereof must be made sufficiently in advance of the incurring of costs or the taking of steps to which it relates for the limitation to be taken into account.
39.8 The Arbitrator shall not exercise his powers under Rules 39.6 and 39.7 without affording the parties an opportunity to make submissions to him thereon.
39.9 Nothing herein contained shall be construed as compelling the Arbitrator to use any tariff such as that contained in the Rules of the Supreme Court in making an award in relation to the amount of recoverable costs, unless the parties otherwise agree
604. Pursuant to sec 59 of the 1996 Act, "costs of the arbitration" include:
(a) the arbitrators' fees and expenses (including any VAT charges),
(b) the fees and expenses of any arbitral institutions concerned, and
(c) the legal or other costs of the parties.
605. Generally, any costs of or incidental to any proceedings to determine the amount of the recoverable costs of the arbitration are also covered as "costs of the arbitration" under sec 59(c) of the 1996 Act, including pre-arbitration costs or costs of investigation, lawyers' fees, expert witness fees and expenses, transcriber charges, travel, accommodation, photocopying and other incidental expenses, as well as hearing venue expenses.
a) Costs of the Claim
b) Costs of the Counterclaim
c) Aureus' Application to Contest Jurisdiction and Claimant's Application for Reconsideration of Jurisdiction Award
d) Respondent's Application for Extension of Time for Service of Witness Statements
e) Claimant's Application for Further Expert Report on Quantum
f) Claimant's Withdrawal of Allegations of Fraud
(1) That the Claimant Contractor's Claim is dismissed.
(2) That the Claimant Contractor forthwith pays to the Respondent Employer damages in the Counterclaim in the sum of USD $6,990,626.28 (six million nine hundred and ninety thousand six hundred and twenty six US dollars and twenty eight US cents) together with compound interest thereon, at quarterly rests, at the rate of 2% (two rd percent) from 23 January 2017 until the date of the full payment of the damages.
(3) That the Claimant Contractor forthwith pays to the Respondent Employer the legal and other costs in this Arbitration in the assessed sum of GBP £2,700,000.00 (two million seven hundred thousand pounds sterling) together with compound interest rd thereon, at quarterly rests, at the rate of 2% (two percent) from 23 January 2017 until the date of the full payment of the costs.
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