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

Award

ABBREVIATIONS

Alb-Gold Alb-Gold Teigwaren GmbH
Alex’s Meat Alex’s Meat Distributors Corp
Alex’s Meat Agreement Contract No. 12.16.2013 entered into by Interpage and Alex’s Meat on 16 December 2013 (Exhibit C-7)
Alex’s Meat Settlement Agreement Settlement Agreement and Mutual Release entered into by Interpage and Alex’s Meat on 13 November 2016 (Exhibit C-8)
Agreement Exclusive Importation and Sales Agreement #12012012 signed by Interpage and Alb-Gold on 2 January 2013 (Exhibit C-4)
CISG United Nations Convention on Contracts for the International Sales of Goods
C-PHB Claimant’s Post-Hearing Brief
Dispute Resolution Agreement Dispute Resolution Agreement between Interpage and Alb-Gold dated 13 October 2017 (Exhibit C-11)
EDNY Order Order rendered by the United States District Court for the Eastern District of New York on
3 March 2017 (Exhibit C-10)
Foodstock Foodstock Ltd
Interpage Interpage Co.
PILA Swiss Federal Act on Private International Law
R-PHB Respondent’s Post-Hearing Brief
SCC Rules 2017 SCC Arbitration Rules
Trilini Imports Trilini International imports Inc.
Threeline Threeline Imports inc.

I. THE PARTIES

1.
Claimant is Interpage Co. ("Claimant" or "Interpage"), a company organized and existing under the laws of the State of New York, having its head office located at 8855 Bay Parkway 8D, Brooklyn, New York 11214, U.S.A.
2.
Pursuant to a power of attorney dated 16 August 2017, Claimant is represented in this arbitration by:

LANDOLT & KOCH
17 rue du Mont-Blanc
CH-1201 Geneva
Switzerland
Tel.: +41 (0)22 311 0055
Fax: +41 (0)22 311 0054
Attn.: Ms. Laurence Burger
Email: laurence@landoltandkoch.com

3.
Respondent is Alb-Gold Teigwaren GmbH ("Respondent" or "Alb-Gold"), a company organized and existing under the laws of Germany, having its head office located at Im Grindel 1, D-72818 Trochtelfingen, Germany.
4.
Pursuant to a power of attorney dated 31 January 2018, Respondent is represented in this arbitration by:

VOELKER & PARTNER MBB
Am Echazufer 24
72764 Reutlingen
Germany
Tel.: +49 7121 9202-73
Fax: +49 7121 9202-49
Attn.: Dr. Christian Lindemann
Email: c.lindemann@voelker-gruppe.com

and

ALSTON & BIRD LLP
90 Park Avenue
15th Floor
New York
NY 10016-1387
U.S.A.
Tel.: +1 212 210 94 00
Fax: +1 212 210 94 44
Attn.: Mr. Karl Geercken
Mr. Carlos Ramos-Mrosovsky
Email: karl.geercken@alston.com
carlos.ramos-mrosovsky@alston.com

5.
Claimant and Respondent are also referred to individually as a "Party" and collectively as the "Parties".

II. THE ARBITRAL TRIBUNAL

6.
The Arbitral Tribunal consists of:

(1) Mr. Nicolas C. Ulmer
BUDIN & ASSOCIES
20 rue Sénebier
CP 166
1211 Geneva 12
Switzerland
Tel.: +41 22 818 08 08
Fax: +41 22 818 08 18
Email: nicolas.ulmer@budin.ch
Mr. Ulmer was nominated by Claimant.

(2) Ms. Heidrun McKenzie
BENDER HARRER KREVET RECHTSANWALTE
Humboldtstr. 3
79539 Lörrach
Germany
Tel.: +49 7621 4099-71
Fax: +49 7621 4099-40
Email: h.mckenzie@bender-harrer.de
Ms. McKenzie was nominated by Respondent.

(3) Mr. Jean-Christophe Honlet
DENTONS
5 boulevard Malesherbes
75008 Paris
France
Tel.: +33 1 42 68 48 58
Fax: +33 1 42 68 70 97
Email: j eanchristophe.honlet@dentons.com
Mr. Honlet was nominated as Chairperson by the co-arbitrators.

III. THE AGREEMENT TO ARBITRATE

7.
Article 19 of the Exclusive Importation and Sales Agreement #12012012 dated 1 January 2013 (Exhibit C-4, the "Agreement") provides as follows:

ARBITRATION: Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall first be settled by arbitration to be held in Geneva, Switzerland in accordance with the law in this jurisdiction, an [sic] judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

8.
The Parties, in a Dispute Resolution Agreement dated 13 October 2017, agreed to modify Article 19 of the Agreement (Exhibit C-11, the "Dispute Resolution Agreement").
9.
The Request for Arbitration was filed by Claimant on the basis of the arbitration agreement included in Article 1 of the Dispute Resolution Agreement, which reads as follows:

Instead of Article 19 of the Agreement, the Parties agree on the following Arbitration Agreement:

ARBITRATION: Any dispute, controversy or claim arising out of or in connection with the Exclusive Importation and Sales Agreement #12012012, effective as of 1 January 2013, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The seat of the arbitration shall be Geneva, Switzerland, and Swiss law shall be the lex arbitrii (which means that the substantive law applicable to the claims in dispute in addition or subsidiarily to the Vienna Convention of 1980 as provided in Article 20 of the Agreement, shall be determined using the rules of Swiss Law on conflict of laws and not that Swiss law would necessarily be the substantive law applicable to those claims — the substantive law applicable additionally or subsidiarily remaining to be agreed upon or decided at a later stage). The language of the arbitration shall be English.

10.
The Parties stated during the case management conference held on 30 January 2018 that they had no objection to the Arbitral Tribunal’s jurisdiction under Article 1 of the Dispute Resolution Agreement. There were also no objections made concerning the proper constitution of the Tribunal.

IV. APPLICABLE SUBSTANTIVE LAW

11.
Article 20 of the Agreement reads as follows:

CHOICE OF LAW: This Agreement shall be governed by and interpreted in accordance with the laws of the Vienna Convention of 1980.

12.
In paragraph 12 of its Request for Arbitration, Claimant stated that "[i]n addition to sales, the Agreement covers importation/distribution, but these aspects are not covered by the CISG. Claimant reserves the right to discuss the law applicable to the merits of the importation/distribution aspect of the Agreement at a later stage of the proceedings."
13.
In paragraph 10 of its Answer, Respondent stated that it "reserve[d] the right to address with the panel whether or not the entirety of the Parties’ relationship under the Agreement is subject to the CISG."
14.
Following this initial exchange, the Parties resolved this question and confirmed to the Tribunal on 26 January 2018 that "[w]ith respect to the law applicable for issues not covered by the CISG, the Parties agree on New York law." This was memorialized at paragraph 29 of Procedural Order No. 1.

V. FACTS RELEVANT TO THE AWARD

15.
The key facts are summarized in this section. Further facts will be referred to below as part of the discussion.
16.
Interpage International Inc. was first created in the State of New Jersey in 1993 by Mr. Gregory Vernikov, a Russian-speaking immigrant from the CIS and three other such immigrants. The purpose of the company was importing and exporting confectionery products from Ukraine, Russia and the Baltic States, primarily for the United States "ethnic" market.1 Interpage International Inc. was dissolved in 1999 when three of the founders left the company.2
17.
In 2000, Mr. Vernikov registered Interpage Co. in the State of New Jersey.3
18.
In 2002, he met Mr. Leonid Kerzhner, who was at the time purchasing food from Interpage for a company named Mega Food, Philadelphia.4
19.
In 2003, Mr. Vernikov incorporated Interpage Co. in New York.5
20.
Around 2004, Mr. Kerzhner joined Trilini International Imports Inc. ("Trilini Imports") as 50% owner and continued its relationship with Interpage.6
21.
In late 2004, Mr. Kerzhner offered Mr. Vernikov a space in Trilini Imports’ warehouse in Brooklyn, which he accepted in 2005. The agreement was that Interpage would occupy space in the warehouse and use two workers and a forklift rent-free, as well as an office, a computer, a phone and a fax, in return of selling goods imported through Interpage to Trilini Imports.7
22.
In 2006, Trilini Imports changed its name to Threeline Imports Inc. ("Threeline").8
23.
In 2009, Mr. Vernikov reopened Interpage Co. in New York.9
24.
In August 2009, Mr. Vernikov ran into financial difficulties and started to work for Threeline as an employee, while at the same time continuing to sell goods to Threeline and other customers through Interpage.10
25.
In 2011, Mr. Vernikov opened Interpage International Inc. in New York.11
26.
In June 2011, Mr. Claus Dörner, Alb-Gold’s sales director, obtained Mr. Vernikov’s contact information and subsequently contacted him on 26 July 2011 as part of its efforts to develop new distribution channels for Alb-Gold’s pasta products.12
27.
Mr. Vernikov first met Mr. Dörner at the Anuga trade show in October 2011.13 Mr. Vernikov asserts that he introduced himself as the owner of Interpage Co. and Interpage International Inc. and produced his business card.14 He says that he told Mr. Dörner at the time that Interpage was working with the company Tress, another pasta manufacturer, but that it would be interested to purchase certain types of pasta that Tress was not producing.15
28.
In the summer of 2012, Mr. Vernikov and Mr. Dörner started negotiations in order to enter into an agreement.16
29.
In July 2012, Mr. Dörner sent to Mr. Vernikov a list of pasta products produced with eggs.17 Subsequently, Interpage placed the first order of "Delicious Wonders" brand pasta to Alb-Gold in order to sell the products to Threeline.18 This July 2012 order was replaced by an order on the proper order form in September 2012.19
30.
In October 2012, negotiations started on an exclusive agreement for the distribution of Alb-Gold’s pasta products in the United States, Canada, Israel and CIS countries.20
31.
At or about the same time, Mr. Vernikov and Alb-Gold also worked together to create the design of the labels for "Delicious Wonders" pasta, incorporating a "chicken-and-egg" logo supplied by Mr. Vernikov.21
32.
On 16 November 2012, Mr. Dörner visited Mr. Vernikov in his office located at that time at 3111 Ocean Parkway # 12 C, Brooklyn NY 11235 and his warehouse located at that time in Threeline’s warehouse at 14A 53rd Street, Brooklyn NY 1129.22
33.
On 23 November 2012, Mr. Vernikov sent to Mr. Dörner by email a first draft of the Agreement.23
34.
On 2 January 2013, Interpage and Alb-Gold signed the Agreement, pursuant to which Alb-Gold granted Interpage the exclusive right to import, sell and distribute Products manufactured by Alb-Gold, as defined in the Agreement, in the Territory, comprising the United States, Canada, Israel and former USSR countries.24 Interpage undertook to export, sell and distribute the Products in the Territory.25
35.
Article 6 of the Agreement provides in relevant part:

a. Distributor agrees to exercise its best efforts to develop the largest possible market for the Products in the Territory and shall continuously offer, advertise, demonstrate and otherwise promote the sale of Products in the Territory.

b. The parties have consulted together and now agree that if Distributor's best efforts are used as provided in this Section, a minimum of twelve (12) containers, or one hundred and forty four (144) net tons of the Products ("Annual Market Potential") will be purchased by the Distributor and sold or distributed in the Territory during the first year of this Agreement ("Initial Contract Period").

Period Initial Contact PeriodAnnual Market PotentialAnnual Market Potential (number of containers) (number of tons net of containers) 12 144
Year 2 14 168
Year 3 Year 4 16 192
18 216
Year 5 20 240

c. For each subsequent year, following the Initial Contract Period, the Annual Market Potential will increase by two (2) containers or twenty four (24) tons annually. Therefore, the parties agree that the Annual Market Potential for the first five (5) years of this Agreement will be as follows:

36.
Article 7 of the Agreement provides:

a. This Agreement shall run through the Initial Contract Period, as described in Section 6. above. Following the expiration of the Initial Contract Period, this Agreement will automatically renew itself on January 1 of every year through the year ending January 1, 2018, provided that Distributor meets the Annual Market Potential set out in Section 6 above, for each year preceding the year of automatic extension. At the expiration of this Agreement, Distributor has the unfettered right of first refusal to negotiate the terms of a new contract, at which point both parties agree to negotiate on the terms of the new agreement in good faith.

b. This agreement shall have full force and effect, unless

i. written notice of non-renewal for cause is sent by the party hereto to the other party not less than ninety (90) days before the end of the calendar year; provided however that all orders placed by the Distributor prior to December 31 of that calendar year shall be filled by the Company within thirty (30) days following termination of the Agreement; or

ii. written notice of termination for cause is sent by the Distributor to the Company; in which case the termination shall be effective upon the date specified in the notice, which may but need not be the date on which it is given; cause is defined for the purpose of such notice as the Company's failure to fill two (2) or more orders during a successive three (3) month period within the delays provided below; or

iii. written notice of termination for cause is sent by the Company to the Distributor, in which case the termination shall be effective upon the date specified in the notice, which may but need not be the date on which it is given; cause is defined for the purpose of such notice as the Distributor's failure to pay for Products ordered in respect of two (2) or more orders during a successive three (3) month period within the delays provided below.

c. If, upon the termination or expiration of this Agreement, Company negotiates an agreement with a third party not affiliated with Distributor, and the terms of the agreement shall be acceptable to Company, Company will not agree to terms with the third party without first offering the agreement to Distributor, on identical terms as would be offered to the third party. Company shall give Distributor the right to create a new agreement at the price and on the terms of the offer so made to third party. This right shall be extended by Company by giving written notice of the offer by registered mail to Distributor, requiring Distributor to accept the offer in writing and to sign a purchase agreement within thirty (30) days after the receipt of the notice. In the event that Distributor does not agree to the terms set forth above, then the Right of First Refusal granted herein shall lapse.

37.
The Agreement was subsequently amended at an unspecified date by an Additional Agreement #1 to provide for a 3.45% commission to be paid by Alb-Gold on sales arranged by Interpage.26
38.
From October 2012 to February 2013, Mr. Vernikov developed the Israeli market for the "Delicious Wonders" pasta, together with Mr. Leonid Belenky, owner of the company Foodstock Ltd.27
39.
On 20 April 2013, Mr. Vernikov moved out of the Threeline warehouse.28 Interpage's new address was 8855 Bay Parkway 8D.29
40.
In 2012 and 2013, Interpage placed several orders with Alb-Gold for the US and Israeli markets.30
41.
In July 2013, Mr. Dörner visited Threeline’s warehouse.31
42.
On 12 July 2013, Mr. Dörner provided Threeline with a price quote for "Delicious Wonders" pasta.32
43.
On 23 August 2013, Mr. Dörner asked Mr. Vernikov to stop buying products from the company Tress in Germany and promised that it would not supply "Triline and Grand Foods or other Russian importers in the US" and promised that Alb-Gold had not received an order from "Triline".33
44.
At an unspecified date in the first half of December 2013, Mr. Dörner informed Mr. Vernikov by telephone that Alb-Gold would stop supplying his company for the United States market.34 Both Parties agree that the email chain in Exhibit C-113 must be interpreted as Alb-Gold deciding to no longer supply the Products to Interpage in the United States only.35
45.
On 11 December 2013, Alb-Gold started to take orders from Threeline regarding the United States market.36
46.
On 16 December 2013, Interpage and Alex's Meat Distributors Corp ("Alex’s Meat") signed an exclusive supply agreement for the supply of "Delicious Wonders" kosher pasta manufactured by Alb-Gold (the "Alex’s Meat Agreement").37
47.
Under the Alex’s Meat Agreement, Alex’s Meat agreed to purchase a minimum of 80 containers (or 960 net tons) of Delicious Wonders kosher pasta and sell or distribute them in the United States during the five years of that agreement.38 The agreed price was US$ 1.40 per 500g pack and US$ 0.90 per 250g pack and the total amount under the contract was US$ 2,896,000.39
48.
On 17 December 2013, Mr. Vernikov learned from the freight forwarder that Alb-Gold had not delivered a 7 November 2013 order placed by Interpage with Alb-Gold.40 Alb-Gold did not inform Interpage directly.
49.
A letter from Alb-Gold to Interpage dated 7 January 2014 purporting to terminate the Agreement with immediate effect was introduced in the record by Alb-Gold.41 As discussed below, this letter turned out to be backdated by more than three years.42
50.
In 2014, Interpage placed several orders with Alb-Gold for the Israeli market43 and received commissions for these orders at the 3.45% rate set out in the Agreement (i.e., the Additional Agreement No.1).44
51.
On 23 April 2015, Threeline started proceedings before the United States District Court for the Easter District of New York (EDNY) against Interpage for trademark infringement and counterfeiting, following a dispute as to the ownership of the "chicken-and-egg" logo trademark used on the "Delicious Wonders" pasta bags.45
52.
On 21 May 2015, the Court issued a preliminary injunction preventing Interpage from continuing to use the "chicken-and-egg" trademark.46
53.
On 13 November 2016, Interpage signed a Settlement Agreement and Mutual Release with Alex’s Meat (the "Alex’s Meat Settlement Agreement"), pursuant to which Interpage agreed to pay to Alex’s Meat US$ 2,209,600 according to a payment schedule described in the Alex's Meat Settlement Agreement.47 Interpage maintains and argues that the Alex’s Meat Settlement Agreement was the consequence of Alb-Gold’s breach of its Agreement with Interpage.
54.
On 3 March 2017, the United States District Court for the Eastern District of New York dismissed Threeline's claim and ruled in favour of Interpage and its counterclaim, holding that it had established common law rights on the logo (the "EDNY Order").48 The injunction was lifted.
55.
Following that decision, which deferred the question of damages and attorney’s fees, Interpage settled the case with Threeline and received an undisclosed payment from Threeline.

VI. SUMMARY OF ARBITRATION PROCEEDINGS

56.
This arbitration is governed by the 2017 Arbitration Rules of the Stockholm Chamber of Commerce (the "SCC Rules").
57.
On 18 October 2017, Claimant submitted a Request for Arbitration and nominated Mr. Nicolas Ulmer as arbitrator.
58.
On 23 October 2017, the SCC Secretariat acknowledged receipt of the Request for Arbitration.
59.
On 25 October 2017, the SCC Secretariat wrote to Respondent in order to notify it of the Request for Arbitration, indicating that Respondent had until 8 November 2017 to submit an Answer.
60.
On the same day, Respondent requested an extension of the deadline for submission of an Answer by ten days, i.e. until 18 November 2017.
61.
On the same day, Mr. Nicolas Ulmer transmitted a Confirmation of Acceptance, Availability and Independence to the SCC Secretariat.
62.
On 30 October 2017, the SCC Secretariat granted Respondent an extension of time for the submission of the Answer until 17 November 2017.
63.
On 15 November 2017, Respondent submitted an Answer to the Request for Arbitration and nominated Ms. Heidrun McKenzie as arbitrator.
64.
On 20 November 2017, the SCC Secretariat transmitted the Answer to the Request for Arbitration to Claimant and granted Claimant until 27 November 2017 to make any comments regarding the Answer.
65.
On 21 November 2017, Ms. Heidrun McKenzie transmitted a Confirmation of Acceptance, Availability and Independence to the SCO Secretariat.
66.
On 23 November 2017, Claimant indicated to the SCC Secretariat that it had no comments regarding Respondent’s Answer at this stage but that it reserved its rights to reply at a later stage in the proceedings, and in particular answer Respondent's counterclaim.
67.
On 24 November 2017, Claimant informed the SCC Secretariat that the Parties intended to agree on a different procedure for the appointment of the Chairperson of the Arbitral Tribunal than the one provided by default under the SCC Rules and that they were currently in the process of discussing this procedure.
68.
On 1st December 2017, the SCC Secretariat granted the Parties 10 days to jointly appoint a Chairperson or agree on a procedure to appoint a Chairperson, failing which the SCC would make the appointment.
69.
On the same day, Claimant informed the SCC that the Parties had agreed upon a procedure to appoint the Chairperson of the Arbitral Tribunal.
70.
On 5 December 2017, Respondent confirmed that it was in agreement with the content of Claimant’s letter of 1 December 2017 and the procedure for the appointment of the Chairperson.
71.
On 20 December 2017, the co-arbitrators informed the SCC Secretariat that they had agreed on Mr. Jean-Christophe Honlet as Chairperson of the Arbitral Tribunal.
72.
On 12 January 2018, Mr. Jean-Christophe Honlet signed a Confirmation of Acceptance, Availability and Independence and the SCC Secretariat confirmed to the Parties that he had been appointed as Chairperson of the Arbitral Tribunal by the co-arbitrators.
73.
On 15 January 2018, the SCC Secretariat indicated to the Arbitral Tribunal that the Parties had paid the advance on costs in equal shares and that the case was now referred to the Arbitral Tribunal. The SCC Secretariat also indicated that the final award shall be made by 16 July 2018.
74.
On the same day, the Arbitral Tribunal suggested to the Parties in the interest of expediency to already start to discuss and seek to agree on a timetable for the arbitration. On the same day, Claimant proposed a procedural calendar, to which Respondent replied with a different proposal on 17 January 2018. On this date, Claimant sent its comments on the proposed procedural calendar and Respondent replied with a different proposal on 19 January 2018.
75.
On 19 January 2018, the Arbitral Tribunal proposed two dates of availability for a telephone case management conference and requested the Parties (i) to attempt jointly to propose a full procedural timetable by 24 January 2018 and (ii) make any specific procedural suggestions in advance of the draft Procedural Order No. 1 being submitted to the Parties by the same date.
76.
On the same day, Claimant indicated that it agreed with the procedural timetable proposed by Respondent, until the hearing.
77.
On 22 January 2018, the Arbitral Tribunal confirmed to the Parties that the telephone case management conference would be held on 30 January 2018 at 5:00 pm CET.
78.
On 25 January 2018, the SCC Secretariat informed the Parties that the Arbitral Tribunal had requested the appointment of Ms. Marie-Helene Ludwig as an administrative secretary and granted the Parties until 1 February 2018 to provide their comments. On the same date, Claimant informed the SCC Secretariat that it did not oppose the appointment of the administrative secretary.
79.
On the same date, the Chairperson of the Arbitral Tribunal submitted to the Parties a first draft of Procedural Order No. 1 for their comments.
80.
On 26 January 2018, Claimant transmitted to the Arbitral Tribunal an agreed procedural timetable up to the time of the hearings and informed the Arbitral Tribunal that the Parties had agreed on New York law to be the law applicable for issues not covered by the CISG. Respondent confirmed the Parties’ agreements on the same date.
81.
On the same date, the Chairperson of the Arbitral Tribunal proposed to hold the hearing on 10 July 2018, with 11 July 2018 as a reserve date and requested the Parties to advise if either of these two dates would not be suitable.
82.
On the same date, Claimant confirmed its availability on the suggested dates for the hearings and transmitted its comments on the draft of Procedural Order No. 1.
83.
On 29 January 2018, Respondent transmitted its comments on the draft of Procedural Order No. 1.
84.
The case management conference was held by telephone on 30 January 2018 at 5:00 pm CET. Both Parties' Counsel attended.
85.
On the same date, Respondent indicated that it agreed with the appointment of an administrative secretary.
86.
On 31 January 2018, Respondent transmitted their Counsel’s power of attorney.
87.
On 1 February 2018, the Arbitral Tribunal asked the Parties to attempt to agree on the interim dates after each Party’s request for a limited production of documents, by 5 February 2018.
88.
On the same day, the SCC Secretariat confirmed the appointment of Ms. Marie-Hélène Ludwig as administrative secretary, following her signature on 31 January 2018 of a Confirmation of Acceptance, Availability and Independence and transmission of her CV.
89.
On 5 February 2018, Respondent indicated that the Parties had agreed on interim dates for the limited document production, including suggested dates for decision by the Arbitral Tribunal on any disputes regarding document production issues, as well as a proposed date for the exchange of simultaneous Post-Hearing Briefs. On the same day, Claimant confirmed that it was in agreement with these dates.
90.
On 6 February 2018, the Chairperson of the Arbitral Tribunal transmitted to the Parties Procedural Order No. 1 attaching the provisional timetable of the arbitration.
91.
On 9 February 2018, Claimant submitted a Statement of Claim.
92.
On 28 February 2018, Respondent submitted a Schedule of Requests for the Production of Documents to the Arbitral Tribunal for decision.
93.
On 7 March 2018, the Tribunal submitted to the Parties its Ruling on Respondent's Schedule of Requests for the Production of Documents.
94.
On 30 March 2018, Respondent filed a Statement of Defense.
95.
On 24 April 2018, Claimant submitted to the Arbitral Tribunal for decision a Schedule of Requests for the Production of Documents.
96.
On 26 April 2018, the Tribunal submitted to the Parties its Ruling on Claimant’s Schedule of Requests for the Production of Documents.
97.
On 9 May 2018, Claimant filed a Reply and Statement of Defence on Counterclaim.
98.
On 18 May 2018, Claimant sought leave to introduce Claimant's approval as a distributor for one of the US’ biggest supermarket chains as new factual evidence, this approval having been received after the filing of the Reply and Statement of Defence on Counterclaim.
99.
On the same day, the Arbitral Tribunal invited Respondent to comment on this request on or before 21 May 2018.
100.
On 20 May 2018, Respondent indicated that it did not object to Claimant’s request to submit an additional exhibit into evidence but reserved its rights to comment on Claimant’s new evidence at the appropriate time.
101.
On 22 May 2018, the Arbitral Tribunal authorized Claimant to introduce the new document in the record and indicated that Respondent might comment together with its next submission.
102.
On 23 May 2018, Claimant filed new evidence as Exhibit C-130.
103.
On 15 June 2018, Respondent filed its Statement of Rejoinder.
104.
On 19 June 2018, the Arbitral Tribunal requested the SCC to extend the time limit to render the Award until the end of November 2018 in view of the procedural timetable adopted pursuant to the Parties’ agreement.
105.
On 27 June 2018, the SCC decided that the date for rendering the Final Award was extended to 30 November 2018.
106.
On the same date, both Parties submitted additional documentary evidence in support of their claim and Respondent indicated Claimant’s witnesses that Respondent’s Counsel wished to cross-examine at the hearing.
107.
On 28 June 2018, Claimant indicated Respondent’s witnesses that Claimant’s Counsel wished to cross-examine at the hearing.
108.
On 29 June 2018, the Parties submitted to the Arbitral Tribunal their respective proposals on time allocation for the hearing.
109.
On 2 July 2018 at 3:00 pm CET, the Parties and the Arbitral Tribunal held a pre-hearing conference call.
110.
On 3 July 2018, the Arbitral Tribunal transmitted to the Parties a schedule for the hearing taking into account the Parties' proposal.
111.
On 5 July 2018, the Arbitral Tribunal requested that Respondent arrange to bring at the hearing: (i) the original document from which the copy in Exhibit R-7 was prepared, it being recalled that Exhibit R-7 was an alleged termination letter of the Agreement dated 7 January 2014, which Claimant indicated it had never received; (ii) any available evidence of the date(s) on which this letter was sent (email, registered letter, etc.); and (iii) original template letterheads used by Respondent to print its letters from 2013 to this day, to the extent available.
112.
On the same day, the Parties commented on whether witnesses that were also representatives of the Parties should be allowed in the hearing room during the hearings while they were not testifying. On 6 July 2018, the Arbitral Tribunal rendered its decision on this issue.
113.
On 9 July 2018, Respondent submitted a third witness statement of Mr. Claus Dörner in response to the Arbitral Tribunal’s request of 5 July 2018, together with one supporting exhibit. Mr. Dörner indicated that the termination letter of the Agreement dated 7 January 2014 had in fact not been prepared before March 2017 and not sent before July 2017 to Claimant’s then attorneys. Mr. Dörner stated that Respondent’s attorneys were unaware until that point that the letter had been backdated. Respondent declared that it was no longer relying on Exhibit R-7.
114.
The hearing was held on 10 July 2018 in Geneva, Switzerland. Both Parties and their attorneys attended. Among other procedural directions, the Tribunal made clear at the hearing that, although Respondent had stopped relying on the letter filed as Exhibit R-7, the letter remained in the record.49
115.
The following witnesses were examined at the hearing:

• Mr. Gregory Vernikov (Interpage)

• Mr. Vladimir Oterin (Alex’s Meat)

• Ms. Victoriia Vernikov (Mr. Vernikov’s wife, assisted by a translator)

• Mr. Claus Dörner (Alb-Gold)

• Mr. Viktor Flaig (Alb-Gold)

116.
At the conclusion of the hearing, both Parties confirmed that they had no complaints or objections with respect to the way the arbitration was conducted.50
117.
On 13 July 2018, the Arbitral Tribunal issued Procedural Order No. 2, which recorded certain procedural elements subsequent to the hearing and provided additional directions and questions to the Parties.
118.
On 16 July 2018, the Arbitral Tribunal requested from the SCC Board, based on Article 51(4) of the SCC Rules, a readjustment of the advance on costs. Claimant had confirmed at the hearing that the amounts sought had increased to US$ 10,862,121.99 by reason of the Lanham Act treble damages claim.51
119.
On 24 July 2018, Claimant provided comments on the applicable law to the dispute. Respondent replied on 25 July 2018.
120.
On 7 August 2018, Respondent requested the Tribunal to issue an order pursuant to Article 38 of the SCC Rules requiring Claimant to post security for costs in the amount of EUR 514,000.
121.
On 8 August 2018, Respondent sought leave to submit a limited number of additional legal authorities with its Post-Hearing Brief. On the same day, the Arbitral Tribunal granted leave to file these limited additional legal authorities, on the understanding that Claimant shall similarly be entitled to file some limited responsive additional authorities with its responsive Post-Hearing Brief, if it so wished.
122.
On 13 August 2018, Claimant submitted that Respondent’s application for a security for costs should be dismissed.
123.
On 16 August 2018, the Arbitral Tribunal issued Procedural Order No. 3 and dismissed Respondent’s request for security for costs.
124.
On 31 August 2018, the Parties simultaneously filed Post-Hearing Briefs.
125.
On 21 September 2018, the Parties simultaneously filed responsive Post-Hearing Briefs and their Statements of Costs.
126.
On 24 September 2018, Claimant objected to the size and contents of Respondent’s Post-Hearing Brief.
127.
The Tribunal answered on the same day that it had noted Claimant’s observations and did not deem it necessary to request further exchanges from the Parties.
128.
On 28 September 2018, Respondents sent an updated Statement of Costs to which, on 29 September 2018, Claimant objected. On 1 October 2018, Respondent made additional observations on this question.
129.
On the same day, the Tribunal acknowledged receipt of the Parties’ observations and indicated that no further exchange was necessary, nor authorized, in this respect.
130.
On 1 November 2018, the Tribunal closed the proceedings pursuant to Article 40 of the SCC Rules.
131.
On 12 November 2018, the SCC Board fixed the costs of the arbitration as set out in Annex 1 hereto.

VII. RELIEF SOUGHT BY THE PARTIES

132.
Claimant seeks the following relief:

- Order Alb-Gold to pay Interpage Co. the amount of US$ 720,000 or more in the Tribunal’s discretion as enhanced damages plus interest at 9% per annum as of 14 July 2014;

- Order Alb-Gold to pay Interpage Co. the amount of US$ 25,635.33 or more in the Tribunal’s discretion as enhanced damages plus interest at 9% per annum as of 1 April 2014;

- Order Alb-Gold to pay Interpage Co. the total amount of US$ 2,209,600 or more in the Tribunal’s discretion as enhanced damages plus interest at 9% calculated on the following instalments:

o USS 33,000 plus interest at 9% per annum as of 13 November 2016;

o US$ 33,000 plus interest at 9% per annum as of 1 December 2016;

o US$ 33,000 plus interest at 9% per annum as of 1 January 2017;

o USS 33,000 plus interest at 9% per annum as of 1 February 2017;

o US$ 33,000 plus interest at 9% per annum as of 1 March 2017;

o US$ 33,000 plus interest at 9% per annum as of 1 April 2017;

o US$ 33,000 plus interest at 9% per annum as of 1 May 2017;

o USS 33,000 plus interest at 9% per annum as of 1 June 2017;

o USS 33,000 plus interest at 9% per annum as of 1 July 2017;

o US$ 33,000 plus interest at 9% per annum as of 1 August 2017;

o US$ 33,000 plus interest at 9% per annum as of 1 September 2017;

o US$ 33,000 plus interest at 9% per annum as of 1 October 2017;

o US$ 25,000 plus interest at 9% per annum as of 1 November 2017;

o US$ 25,000 plus interest at 9% per annum as of 1 December 2017;

o US$ 25,000 plus interest at 9% per annum as of 1 January 2018;

o US$ 25,000 plus interest at 9% per annum as of 1 February 2018;

o US$ 25,000 plus interest at 9% per annum as of 1 March 2018;

o USS 25,000 plus interest at 9% per annum as of 1 April 2018;

o US$ 25,000 plus interest at 9% per annum as of 1 May 2018;

o US$ 25,000 plus interest at 9% per annum as of 1 June 2018;

o USS 25,000 plus interest at 9% per annum as of 1 July 2018;

o US$25,000 plus interest at 9% per annum as of 1 August 2018

- Order Alb-Gold to pay Interpage Co. the amount of US? 53,679.75 plus interest at 9% per annum as of 14 July 2014;

- Order Alb-Gold to pay Interpage Co. the amount of US$ 115,000 plus interest at 9% per annum as of 14 July 2014;

- Order Alb-Gold to pay Interpage Co. the amount of US? 11,523 plus interest at 9% per annum as of 14 July 2014;

- Order Alb-Gold to pay Interpage Co. the amount of US? 485,000 plus interest at 9% per annum as of 16 May 2017;

- Order that all the costs of the arbitration including reasonable legal fees be borne by Alb-Gold;

- Dismiss all claims and defences raised by Alb-Gold;

- Allow Interpage Co. to modify its claims and adduce additional evidence as the case may be.52

133.
With respect to costs, Interpage added that all the costs of the jurisdictional phase of the arbitration should in any event be borne by Alb-Gold, that the Tribunal should order Alb-Gold to pay US$ 399,810.99 as legal fees and expenses and that all amounts payable by Alb-Gold as costs shall bear a 9% interest as of the date of the Award.53
134.
Respondent seeks the following relief:

a. declaring that the Agreement is invalid and dismissing all claims for lack of jurisdiction; or in the alternative,

b. declaring (i) that the Agreement expired as of December 31, 2013; (ii) that Interpage’s claims under the Agreement fail on the merits; (iii) that it has no jurisdiction over Interpage’s non-contractual claims or otherwise that such claims fail on the merits; and (iv) awarding Alb-Gold EUR 15,990.94, plus interest at a commercial risk-free rate, in respect of its counterclaim;

and

c. ordering Interpage to reimburse Alb-Gold in respect of all costs and expenses incurred in defending this arbitration, including without limitation all fees and expenses of the arbitrators, the SCC, legal counsel, experts, consultants, witnesses and Alb-Gold’s own officers and employees; and

d. granting such other and further relief as the Tribunal deems just and proper.54

VIII. DISCUSSION

135.
The following issues and questions result from the Parties’ arguments and the evidence and law submitted in this case. They are dealt with below, according to the following five subcategories.

1. Applicable law

- Which law applies to the various questions raised in the arbitration?

2. Formation of the Agreement

- Was the Agreement validly formed? Specifically, was there a "meeting of the minds" as to the identity of the Parties on behalf of which Mr. Vernikov and Mr. Dörner signed the Agreement?

3. Termination of the Agreement (if the Agreement was validly formed)

- Did the Agreement expire by its own terms on 31 December 2013 because Interpage failed to meet the 12-container minimum purchase requirement (the "Annual Market Potential") for 2013, was it renewed, and if so, when did it expire or terminate?

4. Performance of the Agreement (if the Agreement was validly formed)

- Did Alb-Gold breach the Agreement?

More specifically:

- Did Alb-Gold fail to satisfy one or more orders under the Agreement?

- Did Alb-Gold breach its exclusivity obligations under the Agreement?

- Did Alb-Gold violate an implied covenant of good faith and fair dealing, applying by virtue of New York law?

5. Are the Parties entitled to any of the remedies that they seek?

- Is Interpage entitled to lost profits that it expected to earn for the duration of the Agreement?

- Is Interpage entitled to damages corresponding to the Armbruster substitution purchases?

- Is Interpage entitled to be compensated for losses related to the settlement agreement signed by Interpage with Alex’s Meat?

- Is Interpage entitled to be compensated of 3.45% commissions for purchases under the Agreement?

- Is Interpage entitled to a 10% commission on certain "trigger sales"?

- Is Interpage entitled to be compensated for costs and expenses incurred for market development?

- Is Interpage entitled to be compensated for the attorney’s fees incurred in its litigation with Threeline in New York?

- Does the Tribunal have jurisdiction over the Lanham Act (trademark) claim made by Interpage?

- Is the Order of the Eastern District Court of New York ruling on a trademark dispute between Threeline and Interpage admissible in this case, under the doctrine of collateral estoppel or otherwise?

- If the Tribunal has jurisdiction over Interpage’s Lanham Act claims, did Alb-Gold commit any tort against Interpage?

- Is Interpage entitled to damages, including enhanced damages pursuant to the Lanham Act? If so, how much?

- Is Alb-Gold entitled to its counterclaim?

- Interest

- Costs

136.
The Tribunal wishes to emphasize at the outset that it has studied all of the Parties’ written and oral submissions in detail and has considered all arguments made by the Parties. Although the Tribunal has attempted to be as specific as possible in the summaries of the Parties' arguments below, these are summaries only. The Tribunal focused its discussion on the arguments that it deemed relevant for its Award. The fact that the Tribunal did not specifically discuss a particular argument or sub-argument in this Award is not to be taken as an indication or inference that the same was not fully taken into consideration by the Tribunal.

A. APPLICABLE LAW

1. Summary of Claimant’s position

137.
Claimant’s position is that the contractual relationship between the Parties is governed by the CISG, while the distribution of the product is governed by New York contract law.55 In addition, as trademarked goods were being distributed pursuant to the Agreement, the Lanham Act also applies both as to registrations and as to federal unfair competition. New York State statutory and common law unfair competition law may also apply.56

2. Summary of Respondent’s position

138.
Respondent’s position is that the Agreement is governed by the CISG with respect to sales and that the Parties agreed that New York law governs all other issues in this arbitration, as agreed by the Parties and recorded by the Arbitral Tribunal in Procedural Order No. 1.57

3. The Tribunal’s decision

139.
As previously noted, Article 20 of the Agreement reads as follows:

CHOICE OF LAW: This Agreement shall be governed by and interpreted in accordance with the laws of the Vienna Convention of 1980.

140.
The Parties agree that not all issues relating to the Agreement are governed by the CISG. They specifically agreed and confirmed to the Tribunal on 26 January 2018 that "[w]ith respect to the law applicable for issues not covered by the CISG, the Parties agree on New York law." This was memorialized at paragraph 29 of Procedural Order No. 1.
141.
The Tribunal will therefore apply this inter-party agreement.
142.
Article 1 of the CISG provides that:

(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States; or

(b) when the rules of private international law lead to the application of the law of a Contracting State.

(2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.

(3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.

143.
The Agreement is a distribution agreement foreseeing international sales of goods. To that extent, whereas the individual sales themselves are governed by the CISG, as per Article 1 CISG, the Agreement is in all other respects governed by New York law.

B. WAS THE AGREEMENT VALIDLY FORMED?

1. Summary of Respondent’s position

144.
Respondent makes the following arguments.
145.
There was no meeting of the minds as to who the parties on behalf of which Mr. Vernikov and Mr. Dörner signed the Agreement actually were.58 Mr. Dörner reasonably believed that he was signing a contract with an entity called Interpage that was a subsidiary or affiliate of Threeline.59 Mr. Vernikov "affirmatively misled Alb-Gold into believing it was contracting with a Threeline subsidiary called ‘Interpage’".60 In particular, Mr. Vernikov (i) worked from Threeline’s warehouse; (ii) did business using Threeline's email; (iii) was paid by Threeline; (iv) met with Alb-Gold’s representatives in the presence of Threeline’s management; (v) was represented by Threeline’s counsel (by the son of Threeline’s principals) in negotiating the Agreement with Alb-Gold; and (vi) hosted Mr. Dörner at Threeline’s warehouse, where he introduced Mr. Dörner to Threeline’s management.61 Mr. Vernikov himself believed that the Agreement was one between Alb-Gold and a separate Interpage entity through which he did business on his own account.62
146.
At the hearing, Mr. Vernikov admitted that in November 2012, he invited Mr. Dörner to the space he was renting in Threeline’s warehouse, he did not disclose his relationship with Threeline to Mr. Dörner and it was possible that Mr. Dörner would have mistaken Threeline’s facilities for Interpage’s.63 At a minimum, Alb-Gold believed it was contracting with the company that controlled the warehouse and the equipment it contained.64
147.
As a result, under New York law, no contract was validly formed.65 This should dispose of the case because there can be no claims for breach without a valid contract.66
148.
According to Respondent, under New York law, Interpage has the burden to show that a valid agreement existed between the Parties, including that they had a meeting of the minds on the essential term of their respective identities.67

2. Summary of Claimant’s position

149.
Claimant makes the following arguments.
150.
There was never any confusion as to the Parties to the Agreement, which was entered into between Interpage and Alb-Gold.68 The signature page of the Agreement shows that it was Interpage, not Threeline, that was Alb-Gold’s counterparty.69 The evidence adduced at the hearing shows that Respondent knew whom its counterparty was.70 In addition, under New York law, one party cannot claim invalidity of an agreement performed by both parties and raise the alleged invalidity only after the fact.71 In addition (i) Mr. Vernikov did not misrepresent Interpage’s legal status as being a subsidiary of Threeline; (ii) the first orders were shipped to Threeline’s warehouse since Interpage occupied part of these premises but bore Interpage’s name; (iii) Mr. Vernikov did not introduce Mr. Dörner and Mr. Kerzhner while at Threeline’s warehouse; and (iv) Mr. Vernikov never owned the business card produced by Alb-Gold as Exhibit R-34.72 Respondent performed the Agreement without once questioning the identity of its counterparty, showing that it had no doubt about it.73 Finally, Respondent knew that it was not dealing with Threeline as it quoted prices to Threeline in July 2013.74

3. The Tribunal’s decision

151.
The Tribunal finds that there was a meeting of the minds between the Parties and that the Agreement was validly formed under New York law.
152.
The Agreement clearly indicates who the parties to the Agreement are, i.e. Interpage and Alb-Gold. It bears the signature of the authorized representatives of the two companies and their respective company stamps.
153.
All orders were made by Interpage to Alb-Gold and invoices issued under the Agreement were issued by Alb-Gold to Interpage.
154.
Payments were also made by Interpage to Alb-Gold or by Trilini International on behalf of Interpage.75
155.
The 3.45% commissions provided for in the Agreement were paid (partially according to Interpage) by Alb-Gold to Interpage.76
156.
The evidence suggests that from his initial meetings with Mr. Vernikov through the elaboration of the backdated termination letter77 Mr. Dörner, and hence Alb-Gold were aware that their counterparty, Interpage, was a self-standing entity.
157.
The Tribunal further observes that it cannot be excluded that Mr. Vernikov may, prior to the Agreement being entered into, have on occasion abstained to dispel a possible impression of Mr. Dörner that Interpage may have been affiliated with Threeline. In this connection Respondent particularly cites the occasion of Mr. Dörner’s visit, in November 2012, to the Threeline warehouse, which Interpage at that time used to store its products. Mr. Vernikov stated in his additional witness statement: "[s]ince I wanted to enter into an exclusive contract with Alb-Gold, I did not tell Mr. Dörner that Interpage was a sole proprietorship.... and I did not mention Threeline or Trilini."78 But while the Claimant’s way of doing business within the Russian émigré community of Brooklyn may have caused some confusion, any such confusion has not been demonstrated to be intentional on Mr. Vernikov’s part,79 much less do these actions amount to misrepresentation capable of vitiating Alb-Gold’s consent under New York Saw.
158.
Similarly, the use of various email addresses by Mr. Vernikov cannot outweigh the evidence cited above nor could create any reasonable doubt for Alb-Gold that it dealt with a partner other than the one it had chosen and that was clearly identified in the Agreement.
159.
Both Interpage and Alb-Gold are experienced parties used to dealing in international commerce. Alb-Gold did not ask any questions to Interpage or Mr. Vernikov, both before and after the Agreement was entered into, regarding what assets Interpage owned, how the company was structured or who owned it, which it had a right to do had these questions been of interest to Alb-Gold. This again shows that Alb-Gold was satisfied that it was dealing with Interpage, the party it wanted to deal with.
160.
Thus, the Tribunal, which accepts Alb-Gold’s pleading that the burden of establishing that there was a "meeting of the minds" on essential contract terms, such as the identity of the parties, rests on interpage,80 finds that that burden is met.

C. DID THE AGREEMENT EXPIRE BY ITS OWN TERMS ON 31 DECEMBER 2013 OR DID IT EXPIRE OR TERMINATE AT ANY OTHER DATE?

1. Summary of Respondent’s position

161.
Respondent makes the following arguments.
162.
Even if the Agreement was validly formed, it expired of its own terms on 31 December 2013.81 Articles 6 and 7(a) of the Agreement provided for the Agreement’s automatic expiration at the end of 2013 if Interpage failed to purchase and sell or distribute an agreed minimum of twelve (12) containers.82 It is undisputed that Interpage failed to meet the agreed minimum 12-container (referred to as the "Annual Market Potential" for the Initial Contract Period of calendar year 2013).83 Interpage ordered seven containers during the Initial Contract Period84 and paid for five.85 The 2012 sales cannot count towards the 2013 minimum because the Agreement only became effective on 1 January 2013.86
163.
Interpage has not demonstrated that Alb-Gold tried to frustrate Interpage’s orders.87

2. Summary of Claimant’s position

164.
Claimant makes the following arguments.
165.
The Agreement did not automatically terminate at the end of 2013. Articles 6 and 7 of the Agreement contradict themselves because termination (pursuant to Article 7) is attached to a best effort clause (Article 6(a)), which renders the best efforts clause meaningless.88 Claimant submits that it used its best efforts but that these efforts were thwarted by Alb-Gold's intent to cause the Agreement to terminate.89
166.
Even if the Arbitral Tribunal were to find that Interpage was bound to make 12 orders in 2013, Alb-Gold purposefully prevented Interpage from ordering 12 containers with its actions and omissions, including colluding with Threeline to take over Interpage’s market.90 Alb-Gold is entirely responsible for Interpage’s failure to meet the contractually required number of orders.91 Alb-Gold also did not load the containers to the fullest, which led to a loss for Interpage, who was sending and paying for the containers.92 Article 80 of the CISG and New York law prohibit a party whose act or omission prevented a party to perform, to rely on such failure to perform to terminate the Agreement.93 Nevertheless, in 2013, Interpage ordered 11 containers but Alb-Gold sent only 7 containers.94
167.
Interpage also argued that "the Israel part" of the Agreement had not been terminated, based on the fact that the Parties continued to do business in respect of the Israel territory in 2014.95
168.
Counsel also expressed at the hearing that Alb-Gold "abruptly and unilaterally [terminated the Agreement] before the end of its term."96 Interpage made the related argument that Alb-Gold repudiated the Agreement under New York law.97
169.
In short, Interpage argued that the Agreement had not expired on 31 December 2013, that Alb-Gold was not entitled to terminate the Agreement and that the alleged termination was "invalid"98 i.e. that the Agreement remained in effect in accordance with its terms after 31 December 2013."99

3. The Tribunal’s decision

170.
The Parties extensively discussed in their written memorials and at the hearing whether the Agreement expired or terminated at the end of 2013, as is Alb-Gold’s position or whether it continued in effect because the termination, Interpage argues, was invalid.
171.
The Tribunal does not find any contradiction between Articles 6 and 7 of the Agreement, as pleaded by Interpage.
172.
These two articles provide as follows. To recall, Article 6 of the Agreement provides in relevant part:

a. Distributor agrees to exercise its best efforts to develop the largest possible market for the Products in the Territory and shall continuously offer, advertise, demonstrate and otherwise promote the sale of Products in the Territory.

b. The parties have consulted together and now agree that if Distributor's best efforts are used as provided in this Section, a minimum of twelve (12) containers, or one hundred and forty four (144) net tons of the Products ("Annual Market Potential") will be purchased by the Distributor and sold or distributed in the Territory during the first year of this Agreement ("Initial Contract Period").

173.
Article 7 of the Agreement provides in relevant part:

a. This Agreement shall run through the Initial Contract Period, as described in Section 6. above. Following the expiration of the Initial Contract Period, this Agreement will automatically renew itself on January 1 of every year through the year ending January 1. 2018, provided that Distributor meets the Annual Market Potential set out in Section 6 above, for each year preceding the year of automatic extension. At the expiration of this Agreement, Distributor has the unfettered right of first refusal to negotiate the terms of a new contract, at which point both parties agree to negotiate on the terms of the new agreement in good faith.

174.
Nothing in New York law or legal logic prevents contracting parties from, on the one hand, entering into a best efforts clause and, on the other hand, contractually defining under what circumstances best efforts are deemed to have been exercised.100 This is exactly what Articles 6 and 7 of the Agreement do.
175.
Alb-Gold is correct that the applicable criterion under Article 7(a) of the Agreement is whether Interpage purchased and sold or distributed a minimum of 12 containers for the year 2013, the "Annual Market Potential".
176.
It is undisputed between the Parties that this minimum requirement was not met. There is therefore no need to enter into the detail of the various calculations made by the Parties. None of them evidence that Interpage met the Annual Market Potential of 12 containers in 2013.
177.
The record also does not evidence that Interpage was prevented by Alb-Gold from meeting the 12-container threshold because, even if all orders made by Interpage had been satisfied by Alb-Gold, which was not the case, the 12-container threshold would not, in any event, have been attained by Interpage in 2013.
178.
Interpage argues,101 and the record shows, however that the Parties chose to continue expressly to refer to and invoke the Agreement after 31 December 2013, which they were entitled to do, notwithstanding the absence of automatic renewal of the Agreement after that date.
179.
In particular, it is undisputed that orders were made by Interpage to Alb-Gold for sale in Israel, which is part of the Territory under the Agreement, on 15 January 2014, 11 May 2014 and 24 June 2014 respectively.102 These orders were invoiced by Alb-Gold to Interpage on 17 January 2014, 16 May 2014 and 1 July 2014 respectively, and were delivered by Alb-Gold.103
180.
The record does not include all the above invoices but notably includes the 1 July 2014 invoice issued by Alb-Gold, and another 13 January 2014 invoice, where the following mention features at the end:104

According to Exclusive Importation and Sales Agreement # 12012012 from 12.012012 with Interpage Co, USA.

181.
On 11 July 2014, Mr. Flaig also confirmed to Mr. Vernikov, Mr. Dörner being copied, that the Agreement "is only valid for the brand ‘Delicious Wonders’" and referred to all countries under the Agreement, where Alb-Gold wished to be free to sell its "house brands", i.e. brands other than "Delicious Wonders".105 If the Agreement was "valid" for Alb-Gold in July 2014, it means that Alb-Gold implicitly, but necessarily, acknowledged that the Agreement had been renewed at the end of 2013, regardless of the fact that the Annual Market Potential had not been met for 2013. This is consistent with the confirmation in the above invoices.
182.
In addition, it appears that commissions were paid by Alb-Gold to Interpage on these orders at the 3.45% rate as set out in the Agreement (i.e., the Additional Agreement No.1), a fact confirmed by Mr. Dörner at the hearing.106
183.
This is all evidence that the Parties, and Alb-Gold in particular, considered the Agreement still to be in force in 2014.
184.
Contrary to Alb-Gold’s position, as well as Mr. Dörner’s testimony at the hearing,107 the Tribunal does not find that the Parties had agreed to do business on an order-by-order basis only after 31 December 2013. Such a position is negated, notably, by the above clear references by Alb-Gold to a continuing performance of the Agreement on 1 and 11 July 2014.
185.
The question for the Tribunal at this point is whether the Territory referred to in the Agreement was, as at 31 December 2013, reduced to Israel or whether it continued to be the full Territory contemplated at Article 2(e) of the Agreement, including the United States. It is undisputed that the only orders that were delivered by Alb-Gold in 2014 were for the Israel territory.
186.
The minority of the Tribunal is of the opinion that the record shows that the territory of the Agreement was reduced to Israel and at least did exclude the USA as of 20 December 2013. It is undisputed that during the week before 16 December 2013 Mr. Dörner told Mr. Vernikov in a telephone conversation that Alb-Gold did no longer want to deliver pasta to Interpage. In his email of 16 December 2013 Mr. Dörner asked Mr. Vernikov: "[i]f you agree we want to continue with the Israel business." Mr. Vernikov answered on 20 December 2013: "Hi Claus, I agree to continue with Israel business, what about the other countries former USSR (Ukraine, Latvia)?".108 This shows that Mr. Vernikov agreed to the reduction of the contractual territory. The question concerning the former USSR countries (Ukraine, Latvia) was not answered but this is irrelevant to this arbitration as Interpage never ordered any pasta for these countries before or after 20 December 2013. Mr. Vernikov also refers to "our Agreement about Israel" in his email to Mr. Dörner of 17 March 2014.109 The reference in Mr. Flaig’s email of 11 July 2014110 does not contradict this interpretation, because it only concerns the dispute as to the extent of exclusivity under the Agreement. Mr. Flaig just raised the question if Interpage was of the opinion that Alb-Gold was not allowed to sell any pasta to other customers in the countries mentioned in the Agreement.
187.
The minority of the Tribunal is therefore of the opinion that the Agreement was legally terminated on 14 July 2014 by mutual consent. Interpage itself emphasized several times: "[t]he relationship between Claimant and Defendant ended then and there."111 Claimant finally ends its collaboration with Defendant on 14 July 2014112 and repeated "when Claimant terminated its collaboration with Defendant, on July 14 2014."113 Mr. Vernikov in his email of 14 July 2014 at the end said: "I wish you all the best, but I am done with you to cooperate."114
188.
The majority of the Tribunal has a different view and is of the opinion that the record does not evidence that Interpage accepted that the Agreement be "reduced" to the Israel territory, but rather that, as a matter of fact, Interpage had accepted to do business with Alb-Gold in respect of the Israel territory in 2014, a sensible business decision made by Interpage in order to keep such Alb-Gold business as it could. The majority concludes that the documents cited above by the minority do not demonstrate that the Agreement was legally terminated on 14 July 2014, but rather that, the Parties, as a matter of fact, stopped doing business in Israel after that date.
189.
In the majority’s view, the reason why Interpage stopped doing business with Alb-Gold in Israel in July 2014 was based on Interpage’s view (which was mistaken, as decided further below) regarding the scope of the exclusivity under the Agreement, i.e. whether the Agreement covered products other than "Delicious Wonders" kosher pasta. This (mistaken) view of the existence of yet another breach by Interpage following the (justified) view by Interpage of the existence of breaches already committed by Alb-Gold in 2013 (as also decided further below) cannot in the majority’s view be dispositive of the case. It was unrelated, in particular, to whether Alb-Gold had breached the Agreement in the United States in 2013, which is the heart of the dispute. The majority does not think that one can infer from the above exchanges in July 2014, or writings in the arbitration, that Interpage had legally waived its position that the alleged termination of the Agreement by Alb-Gold for the United States was invalid. The two questions are distinct.
190.
In summary, the majority of the Tribunal concludes that, absent any clear indication that Interpage had waived its allegation that the Agreement had wrongly been terminated for the United States territory, and given the references by Alb-Gold to the Agreement being in force in July 2014, together with some continuing performance of the Agreement in 2014, the conclusion must be that the Agreement remained in effect in 2014, for the full Territory, including the United States. The minority of the Tribunal is rather and in summary of the opinion that the Agreement remained in effect after December 2013, was terminated by Interpage on 14 July 2014, but excluded in 2014 the territory of the United States and therefore necessarily that the Annual Market Potential no longer applied.
191.
The majority of the Tribunal does not find that the Agreement automatically expired at the end of 2014 because the 2014 Annual Market Potential of 168 tons to be ordered (corresponding to 14 containers) was not met as per Article 6(c) of the Agreement.
192.
It cannot be held against Interpage not to have ordered these 14 containers. Alb-Gold had communicated to Interpage in December 2013 its decision that it was not prepared to continue doing business with Interpage in 2014 other than in Israel. In addition, Alb-Gold had contacted Threeline in or about July 2013, in effect preparing Interpage’s replacement for the United States market, in breach of the Agreement as discussed below.
193.
It results from the record that, Interpage having entered into an agreement with Alex’s Meat on 16 December 2013, which provided that Alex’s Meat had committed to purchase a minimum of 12 containers of Delicious Wonders pasta for 2014,115 Interpage was in a good position to order a minimum of 14 containers from Alb-Gold in 2014, had Alb-Gold not preemptively refused to deliver Delicious Wonders pasta to Interpage in December 2013. The only thing Interpage would have had to do was to pass on to Alb-Gold the 12 or more orders of one container it would receive from Alex’s Meat in 2014,116 and find orders for only two other containers,117 bearing in mind that Interpage had ordered at a minimum, in Alb-Gold’s view, six containers in 2013,118 and made four orders for Israel in 2014 according to Interpage.119
194.
Notwithstanding Mr. Dörner’s testimony to the contrary in his second witness statement,120 it is not realistic to think that Alb-Gold would have accepted to deliver pasta in 2014 to two bitterly opposed competitors in the United States at the same time, Threeline and Interpage, both with the same "chicken-and-egg" logo on the packs, but one without the Delicious Wonders name and the other with it. This would have been an impossible commercial (and possibly legal) position for Alb-Gold to take vis-à-vis Threeline, and this would also greatly have confused consumers, which Mr. Dörner readily recognized at the hearing.121 In short, Alb-Gold had decided to stop supplying Interpage for the United States after 2013 and had switched horses to Threeline for that market. The majority of the Tribunal is also not persuaded that, had Interpage shown its agreement with Alex’s Meat to Alb-Gold at the end of December 2013 or in 2014, Alb-Gold would have accepted to revert to its exclusive relationship with Interpage.122 Interpage in any event had no obligation to show the Alex’s Meat Agreement to Alb-Gold and it had good reasons to be wary of Alb-Gold’s business practices at that time.
195.
In sum, there are a number of good reasons for the 14 container-requirement under the Agreement not to apply to Interpage for 2014.
196.
On 21 May 2015, in addition, the United States District Court for the Eastern District of New York issued an injunction against Interpage, preventing it from using the "chicken-and-egg" logo that was disputed between Threeline and Interpage.123 This injunction was later reversed when, on 3 March 2017,124 Interpage won the lawsuit for trademark infringement that had been initiated by Threeline against it before that Court.
197.
In the majority’s view, the Agreement was thus automatically renewed at the end of 2014 pursuant to Article 7(a) of the Agreement. The same reasons that led to the automatic renewal from 2014 to 2015 apply mutatis mutandis to the automatic renewal from 2015 to 2016 and from 2016 to 2017. The majority of the Tribunal is of the view that this was the implicit but necessary consequence of Alb-Gold’s alleged termination for the United States being invalid, which Interpage argues and a majority of the Tribunal accepts.
198.
Nothing in the record shows any termination for cause in 2017.125 A majority of the Tribunal therefore decides that the Agreement legally expired at the end of its five-year term, which was stipulated to be 1 January 2018.126
199.
With respect to the backdated termination letter,127 the Tribunal expressed at the hearing, and reiterates in this Award, that it was quite displeased to learn of this falsification. Mr. Dörner finally admitted it on the eve of the hearing, following strong doubts expressed by Interpage and questions put by the Tribunal to Alb-Gold on 5 July 2018. Backdating a letter, and worse, presenting it as evidence of true correspondence before an arbitral tribunal of an intention to terminate an agreement over three years before that letter was in reality communicated to the other party, is grossly unacceptable behaviour. The Tribunal takes notes that Mr. Dörner indicated that Counsel for Alb-Gold were unaware of this fact prior to Mr. Dörner admitting it,128 which was confirmed by Counsel at the hearing, and the Tribunal does not doubt the verity of Mr. Dörner’s and Counsel's explanation on this point. The Tribunal need not make any finding as to whether anyone else at Alb-Gold in addition to Messrs. Dörner and Flaig knew that the termination letter had been backdated. The Tribunal finally notes that the backdated termination letter was not dispositive in its decision in this case. What was dispositive, rather, was Alb-Gold’s breaches of the Agreement and their consequences in the circumstances of the case, as set out below. These resulted from Alb-Gold’s management decisions,129 not solely from Mr. Dörner’s decisions, and even less from Mr. Dörner’s phoney termination letter.

D. DID ALB-GOLD BREACH ANY PROVISION OF THE AGREEMENT AND/OR ANY IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING UNDER NEW YORK LAW?

1. Did Alb-Gold breach the Agreement by failing to deliver the 7 November 2013 order?

1.1 Summary of Claimant’s position

200.
Claimant alleges that Alb-Gold breached the Agreement by wrongly cancelling an Interpage order dated 7 November 2013, which was destined for Alex’s Meat,130 wrongly alleging non-payment and blaming Interpage for an alleged price-dumping.131 In fact, Alb-Gold did not comply with the procedure set forth in Articles 11(c) and 12 of the Agreement as Alb-Gold never confirmed receipt and acceptance of the order and never sent the pro-forma invoice to Interpage.132 Around 16-17 December 2013, Interpage became aware that Alb-Gold was stopping, or trying to stop the collaboration with Interpage and on 17 December 2013, Interpage learned through the freight forwarder that the shipment had been cancelled by Alb-Gold.133
201.
As a result, Alex’s Meat "was very unhappy and started to complain about the delayed deliveries".134 To meet its clients’ needs, Interpage contacted Seitz-Food, a subsidiary of Alb-Gold, but was prevented by Alb-Gold to purchase from this company.135 Therefore, it ordered (non-kosher) pasta from Armbruster, which delivered pasta to Interpage from January 2014 until a preliminary injunction obtained by Threeline in May 2015 prevented it from continuing.136 Alex’s Meat was not willing to buy pasta that was more expensive than the Delicious Wonders brand.137 In addition, Interpage had stopped buying from Tress as a result of Alb-Gold’s request.138 As a result, Interpage was unable to deliver to Alex’s Meat and had no choice but ultimately to enter into the Alex’s Meat Settlement Agreement on 13 November 2016.139
202.
Claimant argues that Alb-Gold cancelled this order with an intent to put it in a difficult situation towards Alex's Meat.140

1.2 Summary of Respondent’s position

203.
Respondent alleges that it has no record of receiving an order from Interpage mentioning Alex’s Meat.141 The 7 November 2013 order was not paid by Interpage and therefore, the order was cancelled.142

1.3 The Tribunal’s decision

204.
The Tribunal decides that the Agreement was breached by Alb-Gold by not delivering the 7 November 2013 order made by Interpage.
205.
It is common ground that the order was not delivered, at a time when it is undisputed that the Agreement was in effect and that the order had been duly placed by Interpage and accepted by Alb-Gold. There was, accordingly, no legal justification for Alb-Gold not to ship the order, and its failure to do so is sufficient here to make a finding of breach.
206.
Although Alb-Gold argues that the order was not delivered because it was not paid by Interpage, this explanation does not stand. Exhibit C-81 shows that Alb-Gold, on 7 November 2013, had issued an invoice to Interpage in respect of that order, which clearly manifested Alb-Gold's acceptance of that order.
207.
The cover email of that invoice,143 indicating that the invoice was sent "just for confirmation of that order", confirms that the order had been formally accepted by Alb-Gold. That cover email indicates that Alb-Gold needed "about 3-4 weeks to produce [the] order, if we will be ready earlier, I will inform you", which is clear evidence that Alb-Gold had accepted the order.
208.
As also shown by Exhibit C-81, Alex’s Meat paid the relevant amount to Interpage on 2 December 2013.144 Whereas Interpage may not yet have paid the amount of the invoice to Alb-Gold at the time Mr. Dörner conveyed the unilateral decision of Alb-Gold to stop supplying Interpage for the United States market, at an unspecified date during the first half of December 2013, payment to Alb-Gold was evidently about to be made by Interpage. Alb-Gold was not in any event contractually entitled to cancel the order simply because payment had not yet been made. Article 13 of the Agreement, in particular, provides for cancellation of orders by Interpage, not by Alb-Gold after an order had been accepted.
209.
Exhibit C-31 in any event shows that the shipping papers indicated that payment was to be made "cash against documents."
210.
The fact that Alb-Gold did not even inform Interpage that it would not be delivering the order, and that Interpage learned of it indirectly, through the freight forwarder, places Alb-Gold’s breach in an even less favourable light.
211.
As decided further below, this breach, part of Alb-Gold’s decision to stop supplying Interpage for the United States market because Alb-Gold’s management had decided to switch horses to Threeline, had a snowball effect and caused significant damage to Interpage in its relationship with Alex’s Meat, which culminated in the Alex’s Meat Settlement Agreement on 13 November 2016.

2. Did Alb-Gold breach its exclusivity obligations in respect of Delicious Wonders products under the Agreement?

2.1 Summary of Claimant’s position

212.
Claimant’s position is that by selling directly to other entities in the Territory at a time when the Agreement was in force, including Interpage’s former customers,145 Alb-Gold breached the exclusivity obligations set forth at Article 3(c) of the Agreement.146
213.
First, Alb-Gold breached the duty of exclusivity by starting a business relationship with Threeline in 2013 and and selling Delicious Wonders pasta to them in the United States as of 2014.147 Mr. Kerzhner from Threeline first approached Mr. Dörner at the Fancy Food Trade Show in New York in the beginning of July 2013.148 Following this meeting, Alb-Gold made a commercial offer to Threeline for the Delicious Wonders pasta.149 Mr. Dörner informed Mr. Vernikov that Threeline had contacted him but that it had not received an order.150 In consideration for not supplying Threeline, Alb-Gold asked that Interpage stop all commercial relationship with Tress.151 Alb-Gold met again with Threeline Imports at or shortly after the PLMA Trade show in Chicago on 19 November 2013.152 Alb-Gold started to take orders from Threeline on 11 December 2013.153 Interpage alleges that Threeline paid US$ 20,000 to Alb-Gold to breach the relationship with Interpage and start working with Threeline.154 Threeline’s inventory report shows bills from Alb-Gold as of March 2014.155
214.
Second, Alb-Gold developed concurrent commercial relationship in Israel by selling directly to ZIP’s partner in Israel in order to take the Israeli market from Interpage.156 Alb-Gold and ZIP succeeded in their strategy to take over Interpage’s market in Israel since ultimately Interpage’s wholesale distributor, Foodstock, stopped ordering from Interpage after finding out that Alb-Gold distributed the Product directly to ZIP.157 By July 2014, Alb-Gold was doing business with ZIP’s partner in Israel in direct competition with the commercial relationship developed by Interpage with Foodstock.158 When Foodstock found out that Alb-Gold had sold the Product to ZIP’s partner, it immediately stopped the outstanding shipment.159 Alb-Gold's position was that the exclusivity of the Agreement was only for Delicious Wonders.160 According to Interpage, Mr. Dörner had promised orally twice to Mr. Vernikov that Alb-Gold would not sell any competing product.161 In addition, pursuant to Article 3(a) of the Agreement, the Agreement covers other products than the Delicious Wonders brand.162 Foodstock then ordered from Armbruster through Interpage.163 Eventually, Alb-Gold contacted Foodstock directly to offer it better conditions and Foodstock signed up with Alb-Gold at the end of the summer 2014.164

2.2 Summary of Respondent’s position

215.
Respondent denies having breached its exclusivity obligations in respect of Delicious Wonders products and denies having any obligation for other products. First, there is no breach of exclusivity in the United States: Alb-Gold had always meant to contract with Threeline and therefore could not have colluded with Threeline.165 Second, there was no breach of exclusivity in Israel: the Agreement did not grant Interpage exclusivity over all Alb-Gold products exported to Israel, but only over products manufactured by Alb-Gold for sale under the "Delicious Wonders" private label.166 Mr. Vernikov admitted at the hearing that his attorney, but not he, had concluded that the Agreement’s exclusivity provision extended beyond Delicious Wonders to all Alb-Gold’s brands.167 In addition, Alb-Gold’s dealings with Threeline and ZIP’s partner took place after the expiration of the Agreement and therefore cannot form a contractual breach.168

2.3 The Tribunal’s decision

216.
Because the Tribunal decided above that there was a meeting of the Parties’ minds regarding the fact that Alb-Gold had decided to contract with Interpage through the Agreement, not with Threeline, the fact that Alb-Gold directly contacted Threeline and quoted a price for Delicious Wonders pasta to Threeline in July 2013,169 which ultimately resulted in Alb-Gold deciding to do business with Threeline in the United States in 2014 and beyond, constituted a breach of Article 3(c) of the Agreement. In particular, Alb-Gold breached its obligation to "use its best efforts to prevent any party other than Distributor, from seeking customers for the Products in the Territory."
217.
The Tribunal is of the view, however, that the Agreement only covers the Delicious Wonders pasta, and not other products. The fact that Article 3(a) of the Agreement refers to "all products manufactured from time to time by [Alb-Gold] now or in the future" is directly undercut by the definition of Products, which are limited to "products directly under the "Delicious Wonders" Brand or... products that ALB-GOLD Teigwaren Gmbh produces and manufactures under the ‘Delicious Wond’ (sic) brand and or mark". Such contradiction must be resolved by reference to Article 22(c) of the Agreement, which expressly provides that "[t]his Agreement is valid only for the brand "Delicious Wonders".170 This clause is included in an article entitled "Entire Agreement" unrelated to that particular question. The fact that the Parties thought it necessary to specify this, right at the end of the Agreement, in an unrelated article, over and above the two contradictory provisions cited above, therefore manifests the true intention of the Parties.
218.
Mr. Vernikov also indicated at the hearing that he understood the point made as being a legal point advanced by Interpage’s lawyers.171 The fact that only "Delicious Wonders" pasta was ordered by Interpage to Alb-Gold during the life of the Agreement also shows the true intention of the Parties as stated above.
219.
There was therefore no breach by Alb-Gold resulting from sales to third parties of products other than Delicious Wonders products. Any breach of exclusivity referred to below shall therefore be understood as a breach of Interpage's exclusivity rights over Delicious Wonders products only, in the Territory.

3. Did Alb-Gold breach an implied covenant of good faith and fair dealing?

3.1 Summary of Claimant’s position

220.
Claimant’s argument is that any New York law contract contains an implied covenant of good faith and fair dealing. Applied to litigation or arbitration procedures, a breach of covenant of good faith and fair dealing leads to a worsening of the breaching party’s position since inferences will be taken against the evidence it has adduced.172

3.2 Summary of Respondent’s position

221.
Respondent does not accept, but also does not specifically address, this argument in its pleadings.

3.3 The Tribunal’s decision

222.
Alb-Gold’s breaches of the Agreement characterized above, were indisputably wrongful business practices.
223.
The breach by Alb-Gold of its exclusivity obligations under the Agreement, which are not governed by the CISG, can also be characterized as a breach of the implied covenant of good faith and fair dealing under New York law.
224.
Alb-Gold’s failure to deliver the 7 November 2013 order, to the extent it is solely governed by the CISG and not by New York law, cannot be characterized as such.

E. IS INTERPAGE ENTITLED TO ANY MONETARY RELIEF THAT IT SEEKS (OTHER THAN UNDER THE LANHAM ACT)?

1. Summary of Claimant’s position

225.
Interpage argues that Alb-Gold’s attitude to delay, reject and, in particular, to cancel orders, as well as its other breaches of the Agreement, constitute a failure to perform under Article 45 CISG, which leads to Alb-Gold’s contractual liability and Interpage’s entitlement to damages.173 In addition, Alb-Gold’s violations also constitute breaches of the Uniform Commercial Code as adopted in the New York State ("UCC") which leads to Interpage’s entitlement to lost profits as general damages and special damages.174
226.
Interpage’s position on the applicable standard of proof is that the standard of balance of probabilities should be applied.175
227.
Interpage’s losses claimed based on the breach of the Agreement include:

- the lost profits that it expected to earn during the five years of the Agreement, in the amount of US$ 720,000;

- the price loss made on the substitution purchase from Armbruster, in the amount of US$ 25,635.33; because as a result of Alb-Gold’s failure to provide Products for the Alex’s Meat order, Interpage substituted Alb-Gold’s pasta with pasta bought from Armbruster;

- the liability to Alex’s Meat relating to Claimant's breach of the Alex's Meat Agreement, caused by Respondent, in the amount of US$ 2,209,600 pursuant to the Alex’s Meat Settlement Agreement;

- the 3.45% commissions that Alb-Gold should have paid to Interpage for purchases under the Agreement, in the amount of US$ 53,679.75;

- the 10% commissions that Alb-Gold should have paid to Respondent for "trigger sales" by Respondent to, amongst others, Threeline Imports, ZIP's partner and Foodstock in Claimant's Territory, in the amount of US$ 115,000;

- the costs and expenses incurred by Interpage to develop safes for the Product in the Territory, in the amount of US$ 11,523;

- the attorneys’ fees incurred by Interpage in the Threeline Imports litigation, which was directly caused by Alb-Gold, in the amount of US$ 485,000.176

2. Summary of Respondent’s position

228.
Respondent’s position is that Interpage has failed to prove its damages to a reasonable certainty.177 Respondent argues that Interpage’s claim for damages should be dismissed for the following reasons, which will be detailed further below:

- Interpage’s lost profits claims are meritless because Interpage failed to achieve the agreed 12-container minimum for the Initial Contract Period so that the Tribunal has no reason to assume that Interpage would have achieved significantly higher sales minimums for four years running.178

- Claims for damages related to Alex’s Meat are not credible. The Alex’s Meat Agreement defies credibility because 960 tons of egg pasta over 5 years to a purchaser like Alex's Meat is a commercially implausible quantity.179 Even if the contract were bona fide, it did not and could not at such a late date in the Initial Contract Period have led to sufficient new orders to renew the Agreement beyond 2013.180 Nor was Alb-Gold made aware of this contract at the time.181

- Interpage has no right to damages based on the Alex's Meat Settlement Agreement, because the Settlement Agreement was transparently collusive. The Settlement Agreement was entered into without any preceding litigation between Interpage and Alex’s Meat; it provides that Interpage has denied all liability and it was signed a year and a half after the 21 May 2015 preliminary injunction that supposedly barred Interpage from supplying pasta to Alex’s Meat.182

Even if this agreement had not been collusive, it would have been commercially absurd and no basis for consequential damages.183 The premise that Interpage was unable to supply pasta to Alex’s Meat is false: the district court’s injunction barred Interpage only from selling pasta bearing trademarks that were disputed between Interpage and Threeline, i.e. the chicken-and-egg logo.184 Interpage could easily have supplied Alex’s Meat with other pasta not bearing the disputed trademark. Alb-Gold is not responsible for Interpage’s failure to provide substitute pasta to its alleged customer.

The Alex’s Meat Settlement does not take into account the value of the Armbruster pasta delivered to Alex’s Meat from January 2014 until May 2015.185 As such, Interpage failed to mitigate damages.186

Damages are not available for the Alex’s Meat Settlement Agreement because it was not a foreseeable consequence of any supposed breach.187

In addition, the fact that Interpage now operates from the same address used by Alex's Meat; that Interpage accepted a US$ 2 million liability without any preceding litigation; and that Interpage and Alex’s Meat waited nearly three years to settle their dispute show that Interpage and Alex’s Meat were not doing business at arm’s length.188 Mr. Vernikov admitted at the hearing that Interpage had not rented space at Alex’s Meat only for "a few weeks" as alleged in the Reply, Mr. Vernikov’s Second Witness Statement and in his sworn statement to the FDA but in fact for six or several months.189

As of the hearing, Respondent also alleged that powerful defenses were available to Interpage in respect of Alex’s Meat claims: the ability to invoke "force majeure" in the wake of the district court injunction that supposedly prevented Interpage from supplying pasta and Article 11.4 of the Alex’s Meat Agreement allowing Interpage to withdraw from the Alex’s Meat Agreement on 20 days’ notice.190

- Interpage’s other claims for contractual damages are meritless: Interpage admitted that there had been no "trigger sales" before 2014-2017, i.e. after the expiration of the Agreement;191 the same is true with respect to commissions, which would have been paid by Alb-Gold during the Initial Contract Period while the last two commissions' would be withheld because of Mr. Vernikov’s failure to return an Alb-Gold security token.192 Finally, the Agreement contains no provision entitling Interpage to "market development costs" and Interpage has not met its burden of showing that the expenditures claimed were rendered useless due to Alb-Gold’s alleged breach and would have been incurred in any case.193

- Interpage cannot recover attorneys’ fees incurred in litigation with Threeline, which is settled and in which Alb-Gold was not a party.194

3. The Tribunal’s decision

3.1 Standard of proof

229.
The apposite standard of proof for damages under New York law is reasonable certainty.195 The standard of proof under the CISG is the same.196

3.2 Is Interpage entitled to lost profits that it expected to earn for the duration of the Agreement?

230.
Because, as decided by the majority of the Tribunal above, the Agreement remained in force until 1 January 2018, Interpage is entitled to profits it would have earned from it during the life of the Agreement, i.e. lost profits. The minority of the tribunal is of the opinion that Interpage is entitled to lost profits during the term of the Agreement taking into account the reduction of the Territory after 20 December 2013 for the reasons given above.197
231.
Interpage's calculation is based on 900,000 kgs x US$ 0.80 per kg.198
232.
These claimed lost profits assume that Interpage would have been able to meet the Annual Market Potential for the four years the Agreement was to remain in effect after 2013. For the reasons discussed below, the Tribunal is convinced that Interpage would have achieved the Annual Market Potential each subsequent year until the end of the Agreement due to the separate agreement it had entered into with Alex’s Meat on 16 December 2013.
233.
The quantum of such a profit for Interpage per kg of Delicious Wonders pasta purchased from Alb-Gold is not specifically contested by Alb-Gold, which rather contests that any compensable damage was suffered at all by Interpage. Mr. Oterin from Alex’s Meat credibly stated at the hearing that kosher pasta was one of its high margin products and that his operation could readily market large quantities.199 The Tribunal accepts that evidence.
234.
In order to arrive at Interpage’s lost profits, one should however deduct the seven containers that Interpage had not "purchased... and sold or distributed" in 2013, as per the terms Article 6(c) of the Agreement200 and add the container that Interpage ordered on 7 November 2013 and that Alb-Gold did not deliver, in breach of the Agreement.201 A total of six containers, corresponding to 72 tons of pasta, should therefore be deducted for 2013. Four containers, corresponding to 48 tons of pasta delivered to Foodstock until July 2014202 should also be deducted for 2014 because Interpage already made a profit on these sales. 72 plus 48 tons is 120 tons, to be deducted from 900 tons. This yields a total of 780 tons.
235.
This results in the following calculation for Interpage’s lost profits: 780,000 kgs203 x US$ 0.80 = USS 624,000.
236.
For the reasons indicated above, the minority of the Tribunal is of the opinion that lost profits should only be awarded for the container ordered by Interpage on 7 November 2013 and cancelled by Alb-Gold in breach of the Agreement. The lost profits then amount to 12,000 kgs x US$ 0.80 = USS 9,600.

3.3 Is Interpage entitled to damages corresponding to the Armbruster substitution purchases?

237.
This claim is dismissed by the Tribunal, because, even assuming that the Tribunal were minded to grant it, the claim entirely rests on Mr. Vernikov’s witness statement204 and is not accompanied by any other supporting evidence. The loss is insufficiently proven and cannot therefore be deemed demonstrated with reasonable certainty, even assuming that it were compensable.

3.4 Is Interpage entitled to be compensated for losses related to the settlement agreement signed with Alex’s Meat?

238.
This is the principal claim in the arbitration, but for the Lanham Act claim. This claim is granted by the majority of the Tribunal, but only in part, as explained below.
239.
The majority of the Tribunal has established above that, due to the specific factual circumstances of the case, the Agreement was legally renewed by the Parties and therefore was in force in 2014 for the entire Territory, not only Israel, and was subsequently automatically renewed each year until 1 January 2018, when the Agreement expired in accordance with its terms.
240.
The Tribunal sees six questions to be examined in connection with this claim. First, whether the Alex’s Meat Agreement and/or the Alex’s Meat Settlement Agreement show the existence of a collusion between Alex’s Meat and Interpage as argued by Alb-Gold. Second, whether the losses claimed by Interpage were foreseeable by Alb-Gold. Third, whether Interpage mitigated the damages that it seeks. Fourth, whether a causal relationship exists between the losses claimed and a breach of the Agreement. Fifth, whether as a result liability follows. Sixth, assuming that the Tribunal decides to grant compensation, as it does, how compensation should be calculated. The Tribunal will examine each question in turn.

Was there collusion between Interpage and Alex’s Meat?

241.
The Tribunal examined with great attention the Alex’s Meat Agreement entered into between Interpage and Alex’s Meat on 16 December 2013,205 the Alex’s Meat Settlement Agreement entered into between the same two parties on 13 November 2016206 and the overall context in which these agreements were entered into. The burden is here on Alb-Gold to demonstrate that there are reasons for the Tribunal to disregard these agreements based on the alleged collusion. The Tribunal concludes that this burden was not discharged and that no collusion was proven by Alb-Gold.
242.
First, the Tribunal agrees with Alb-Gold that Interpage’s decision to enter into an agreement with Alex’s Meat for five years was made on 16 December 2013, i.e., after Mr. Corner had spoken to Mr. Vernikov at an unspecified date during the first half of December 2013 and had orally conveyed Alb-Gold’s decision to stop supplying Interpage for the United States market. To that extent, the Alex’s Meat Agreement was an objectively risky agreement for Interpage.
243.
The Agreement was proposed by Interpage to Alex’s Meat and apparently drafted by Mr. Vernikov’s daughter, a lawyer.207 This was to provide for a back-to-back contract based on the Alb-Gold/lnterpage Agreement.208
244.
If the Alex’s Meat Agreement had been collusive, it would not have involved a real risk for Interpage. Yet, based on the review of the record and Mr. Oterin’s testimony at the hearing specifically, the Tribunal is persuaded that it did.
245.
The Tribunal is in no doubt that, while being a close business acquaintance of Mr. Vernikov,209 Mr. Oterin is a tough businessman, which no doubt explains his success at Alex’s Meat. In addition, there is the unchallenged evidence that Alex’s Meat operates a large operation across the United States "ethnic market", which could easily absorb the quantities of pasta foreseen in the Alex’s Meat Agreement.
246.
The Tribunal is also convinced that Mr. Oterin was legitimately annoyed by the fact that Alb-Gold refused to honor the 7 November 2013 order made by Interpage,210 which Interpage would have resold to Alex’s Meat, and did not supply Delicious Wonders pasta to Interpage in 2014 and beyond in the United States.211
247.
The Tribunal is similarly convinced that Mr. Oterin became even more annoyed when, on 21 May 2015, at the request of Threeline, the United States District Court for the Eastern District of New York, issued an injunction, preventing Interpage from continuing even the Armbruster substitution sales of (non-kosher) pasta that Interpage had arranged.212 This injunction, albeit not requested by Alb-Gold, forms part of the context relevant to the Alex’s Meat Settlement Agreement.
248.
The following excerpt of the transcript is particularly revealing:213

12 MR RAMOS-MROSOVSKY: If you were to turn to

13 C-8, which will be in the first binder we looked at, I would be

14 grateful if you could confirm for us that that is the settlement, just

15 so that it is on the record. Is that the settlement?

16 MR OTERIN: Exactly.

17 MR RAMOS-MROSOVSKY: Was that settlement

18 negotiated between yourself and Mr Vernikov?

19 MR OTERIN: I was without pasta more than a year.

20 I was waiting for Vernikov finish the injunction with Delicious

21 Wonders, but my company, we are in the market to make money,

22 not to wait for the pasta. I have more than two thousand items in

23 my inventory, so I called Mr Vernikov and I said, "That is what

24 I give you, I would like to — give me the pasta or we are going to

25 go to..." and I offered him this settlement.

249.
The Tribunal is persuaded that the context in which the settlement agreement was entered into between Interpage and Alex’s Meat on 13 November 2016 was substantially as described by Mr. Oterin. There was every reason for Alex’s Meat and Mr. Oterin to be upset not to be provided with the products Alex’s Meat had a contractual right to obtain and thus to envisage legal action against Interpage, which is evidently how the above excerpt must be understood.
250.
What also makes the Alex’s Meat Settlement Agreement credible is that Mr. Oterin waited a relatively long time before envisaging legal action against Interpage in November 2016. At that date, when the Alex’s Meat Settlement Agreement was entered into, Alex’s Meat had waited:

• almost three years from the beginning of 2014 to receive Delicious Wonders kosher pasta manufactured by Alb-Gold, a quality producer in this business, which it never received;

• approximately 18 months, since the 21 May 2015 injunction, to receive any pasta at all from Interpage; the result of the injunction was to stop even the Armbruster substitution sales by Interpage to Alex’s Meat.

251.
The Tribunal also rejects the argument that the Alex’s Meat Settlement Agreement was not sufficiently bargained for by Interpage and that this proves collusion. Two points in particular are made by Alb-Gold. One is that no lawsuit had yet been started by Alex’s Meat against Interpage. The other is that Interpage could have availed itself in its negotiations with Alex’s Meat of Article 11.4 and/or Article 9 (the force majeure clause) of the Alex’s Meat Agreement, all being "powerful defences" as put by Alb-Gold’s Counsel at the hearing.214
252.
These arguments are misconceived in the Tribunal’s view and again disregard the context of the settlement. The question that must be answered is: what was Interpage’s most reasonable course of action to take when faced with the threat of a lawsuit by Alex’s Meat in November 2016, bearing in mind that Interpage was already embroiled as defendant in the separate lawsuit commenced by Threeline, which had given rise to the May 2015 injunction?
253.
The Tribunal does not believe that risking a second lawsuit, at a time when it was not even certain to win the first one, was a viable option for Interpage. Alex’s Meat was a stronger party financially and would have had means to pursue a lawsuit that Interpage may not have had to the same extent. But more fundamentally, the mere existence of a lawsuit commenced by Alex’s Meat against Interpage, Alex’s Meat being Interpage’s key client,215 would have been a significant, and possibly fatal, business problem.216 In any event, Alex’s Meat had significant bargaining power over Interpage with or without a lawsuit.
254.
Article 11.4 provides that "[t]he Seller has the right to unilaterally withdraw this contract (sic), notifying the Buyer not less than 20 days before the schedule termination date. Notification of the Seller may be sent to the Buyer by fax or email specified in Section 14 hereof, and will have legal force."
255.
Neither Mr. Vernikov217 nor Mr. Oterin218 could credibly explain at the hearing what this clause meant in their view, given the otherwise clear five-year duration under the Alex’s Meat Agreement (Article 2.3).
256.
In the Tribunal’s view, the reason is that the logic of this clause is truly difficult to understand as it directly undercuts the agreed five-year duration of the Alex's Meat Agreement. The argument, if any, to be drawn from the clause was not obvious219 and how this clause would have been construed by a New York Court is at best uncertain. Invoking this clause would have been a risky position to take for Interpage, and it did not take it.
257.
As to the force majeure clause in Article 9 of the Alex’s Meat Agreement, it makes plain that force majeure could only encompass actions that the parties "could not neither expect nor prevent" (sic). That Alb-Gold would not deliver the 7 November 2013 order was a fact that Interpage at least could "expect" on 16 December 2013, even if Mr. Vernikov may have underestimated Alb-Gold’s position conveyed by Mr. Dörner when they spoke during the first half of December 2013. This is precisely what made entering into the Alex’s Meat Agreement risky for Interpage.
258.
The root cause of Alex’s Meat’s discontent and Interpage’s problems with Alex’s Meat was not the May 2015 injunction, although it certainly reinforced it, it was Alb-Gold’s decision not to deliver the 7 November 2013 order and to stop doing business with Interpage in the United States, which had a snowball effect. The Tribunal therefore does not think that the force majeure clause could reasonably have been invoked in these circumstances.
259.
Therefore, the Tribunal does not see in Articles 9 and 11.4 of the Alex’s Meat Agreement the "powerful defences" that Alb-Gold alleges.
260.
Rather, having recalled the circumstances at the time, signing the settlement agreement with Alex’s Meat was far from an ideal position for Interpage but the Tribunal is convinced that Interpage did not have any other realistic option at the time. The choice between a legal battle with Alex’s Meat whose result was at best uncertain for Interpage and may have put Interpage out of business, and signing the settlement agreement with the promise of future business from Alex’s Meat, was not a real one. Signing the settlement with Alex’s Meat was wise given Alex’s Meat’s threats, which the Tribunal is convinced were real -and logical in the circumstances described above.
261.
The amount of the settlement was high (US$ 2,209,600) but that amount was reasoned as discussed in the quantum section below. It strictly followed the logic of the Alex’s Meat Agreement. Alex’s Meat agreed that payments could be made in installments over a ten-year period and promised future business to Interpage, which promise was an objective upside for Interpage.220
262.
Alb-Gold’s argument that the Alex’s Meat Settlement Agreement was not an arms’ length transaction and therefore collusive is also misconceived. It is clear from the record, and in particular from Mr. Oterin’s testimony at the hearing, that the settlement was negotiated between a stronger party (Alex’s Meat)221 and a weaker party in terms of size and market position (Interpage). Alex’s Meat was in an objectively even stronger position in the context of the case since, as recalled above, it had waited a long time to receive the pasta to which it was entitled and never received it, and because a large part of Interpage’s business depends on Alex’s Meat. But this does not mean that the settlement was not "at arms’ length". It is in the nature of any settlement, and in fact of business as a whole, that some parties have a stronger bargaining position than others.
263.
In addition, just as the Alex’s Meat Agreement represented a real business risk for Interpage, the Alex’s Meat Settlement Agreement did as well, the second as a consequence of the first. The Tribunal accepts the evidence that the relevant amounts under the settlement agreement have been paid thus far by Interpage to Alex’s Meat. By nature, Mr. Vernikov could not have any certainty before the arbitration that Interpage would be able to recoup any of these amounts in the arbitration, although it hoped to do so. In fact, as decided below, the Tribunal will only partially grant the relief sought by Interpage on account of the Alex’s Meat Settlement Agreement. In the Tribunal's view, this further shows that the Alex’s Meat Settlement Agreement, which involved a real risk for Interpage, as the Alex's Meat Agreement did, was not collusive.
264.
In summary, the Tribunal has not seen any evidence of collusion or fraud in this case that should lead the Tribunal to disregard the Alex’s Meat Agreement and/or the Alex’s Meat Settlement Agreement.

Foreseeability

265.
The Tribunal rejects the argument that losses resulting for Interpage from the Alex’s Meat Agreement and/or the Alex’s Meat Settlement Agreement were not foreseeable.
266.
It is fairly logical that a distributor, such as Interpage, entering into a distribution agreement with a supplier, such as Alb-Gold for a five-year period with minimum purchase benchmarks for each year, would attempt to enter into a back-to-back agreement (or as close to back-to-back an agreement as possible) to resell these products, thereby comforting its contractual position under the initial agreement. That it may not be common in the particular business at stake, as Alb-Gold argues, is a fact that the Tribunal need not decide, as even were this assertion true, it would be insufficient to render the consequent damages unforeseeable. The point is not that the Parties must have specifically foreseen that a precise business loss could occur. It is simply whether a loss of this nature was foreseeable, i.e. could have been foreseen by a reasonable business person entering into a similar agreement. Because entering into a back-to-back agreement (or as close to back-to-back an agreement as possible) was a logical thing for Interpage to do in the circumstances, the Tribunal decides that the losses arising out of the Alex's Meat Agreement were foreseeable for Alb-Gold. The question must be assessed at the time the Agreement was entered into between Interpage and Alb-Gold. It is therefore independent from whether Alb-Gold was or was not aware of the Alex's Meat Agreement entered into between Interpage and Alex’s Meat in December 2013.
267.
The same holds true for Interpage’s losses arising out of the Alex’s Meat Settlement Agreement. Any reasonable business person knows or should know that breaching an international sales and distribution agreement can have serious consequences for its counterparty. The breaches of the Agreement by Alb-Gold, including (i) its failure to deliver the 7 November 2013 order to Interpage and its decision to stop supplying Interpage for the United States market while it had at the same time accepted to continue performing the Agreement for the Israel territory, and (ii) the breach of the exclusivity provision, were such decisions which ultimately proved to have far-reaching effects for Interpage. There is nothing so remote in such consequences that they should be deemed to be unforeseeable.
268.
In other words, that Interpage entered into the Alex’s Meat Agreement and ultimately found itself in the situation of having to enter into the Alex’s Meat Settlement Agreement was legally foreseeable, albeit perhaps not actually foreseen by Alb-Gold.

Mitigation

269.
The majority of the Tribunal similarly decides that Interpage adequately mitigated its losses.
270.
The record shows that Interpage sought alternative suppliers for Alex’s Meat. Mr. Vernikov was cross-examined in detail by Counsel for Alb-Gold on this point at the hearing. Mr. Vernikov credibly explained (i) that Armbruster was an alternative supplier providing only non-kosher pasta whose quality was inferior to Alb-Gold’s pasta222 (and this only until the May 2015 injunction), (ii) that Seitz, Bechtle and Riesa were not options (because they were companies affiliated with Alb-Gold),223 (iii) that Tress was not an option either (because Interpage had terminated its arrangement with Tress at the request of Alb-Gold), and (iv) that Threeline was not an option either (because Threeline and Interpage were in dispute, and that Alb-Gold precisely had made the choice of Threeline as against Interpage for the United States market).224 Mr. Vernikov also contacted Burks Nudeln in March 2014 but after having provided a price list for pasta, Burks Nudeln informed Mr. Vernikov on 26 March 2014 that it had decided to "step back" from its offer because the labeling was too expensive.225 The Tribunal is therefore satisfied that Interpage did everything it reasonably could in order to find alternative suppliers for the Alb-Gold products to be sold to Alex’s Meat, and thus mitigated its damages.
271.
As to whether entering into the Alex’s Meat Agreement in December 2013 was not already a failure by Interpage to mitigate damages, the majority of the Tribunal does not think so. The majority is rather of the view that when entering into the Alex’s Meat Agreement, Mr. Vernikov underestimated the fact that Alb-Gold was serious about its termination in the United States.226 A mere conversation between Mr. Vernikov and Mr. Dörner had happened during the first half of December 2013 and Alb-Gold never confirmed anything in writing.227 Just as Alb-Gold did not even inform Mr. Vernikov (even less write) that Alb-Gold would not be delivering the 7 November 2013 order, which Mr. Vernikov learned later from the freight forwarder. In short, the majority of the Tribunal’s view is that Mr. Vernikov was quite optimistic when entering into the Alex’s Meat Agreement. Being perhaps too optimistic and thinking that damage would not occur is different from failing to mitigate a damage that has already occurred, which is what mitigation relates to.
272.
The minority of the Tribunal has a different view and is of the opinion that Interpage severely violated its obligation to minimize damages. To minimize damages also means to minimize the chance for damages. Already in midsummer of 2013, Interpage realized that Alb-Gold lost its momentum to pursue the business relationship any further. In July and October 2013, Mr. Vernikov, by his own testimony, abandoned efforts to develop relationships with Safeway and Trader Joe’s because he felt that the relationship with Alb-Gold "became strained".228 In the first half of December 2013, his fears are confirmed by Mr. Dörner telling him that Alb-Gold did not want to further cooperate with Interpage. He also showed that he understood that Alb-Gold really wanted to terminate the Agreement and received confirmation by the return email from Mr. Dörner. All of this was prior to the signing of the Alex’s Meat Agreement on 16 December 2013.229 Therefore, it was not only risky, it was totally unreasonable to sign the Alex’s Meat Agreement at this time, also because it was only 14 days before the end of the Initial Contract Period of the Agreement. In this situation it was even more unreasonable, because Interpage obligated itself to deliver kosher Alb-Gold pasta with no escape clause concerning replacement deliveries by other suppliers. Therefore, Interpage caused the damage, i.e. the claim under the settlement agreement with Alex’s Meat, solely by its own unreasonable business behavior. This means that Interpage is entirely prevented from demanding any damages due to the settlement agreement with Alex’s Meat at all.
273.
As to the Alex’s Meat Settlement Agreement, and for the reasons explained above, the Tribunal is satisfied that it would have been difficult for Interpage to obtain a deal materially different from the settlement agreed between Interpage and Alex’s Meat. As results from the above analysis, Interpage’s claims may in fact have been even higher in this arbitration had it not entered into the Alex’s Meat Settlement Agreement. This is so because, for instance, Interpage may have had to cover attorneys’ fees of Alex’s Meat in a litigation and/or may have gone out of business altogether.

Causation

274.
The majority of the Tribunal decides that the root causes of the losses claimed by Interpage on account of the Alex’s Meat Agreement and the Alex’s Meat Settlement Agreement were Alb-Gold’s breaches of the Agreement, specifically (i) Alb-Gold’s failure to deliver the 7 November 2013 order to Interpage, which breach was compounded by the fact that Alb-Gold maintained its decision to stop doing any business with Interpage in the United States in 2014, at a time when it had agreed to continue doing business with Interpage in Israel, and (ii) breaching Interpage’s exclusivity rights for Delicious Wonders products under the Agreement, which also paved the way for Alb-Gold to establish a relationship with Threeline for the United States market.
275.
The minority of the Tribunal is of the opinion that the root cause for the losses and damage suffered by Interpage lies in its totally unreasonable business behavior as explained above.230

Liability

276.
As a result of the above analysis, the majority of the Tribunal is satisfied that Alb-Gold must indemnify Interpage for the losses caused to Interpage by the Alex's Meat Settlement Agreement. The analysis of quantum follows.

Quantum

277.
Interpage's claim is the result of the following calculation: 960,000 kgs231 x US$ 2.00,232 i.e., US$ 1,920,000, plus a 10% penalty contemplated by Article 10.8 of the Alex’s Meat Agreement calculated by reference to Article 5.2 of the Alex’s Meat Agreement providing for a total price of the contract of US$ 2,896,000, i.e. US$ 289,600. The total amounts to US$ 2,209,600.
278.
Each of the components of the calculation must be examined separately.
279.
The Tribunal considers that the indemnification of Interpage cannot be calculated on the basis of the full 960 tons promised by Interpage to Alex’s Meat. The reason is that the duration of the Alex’s Meat Agreement is not the same as the duration of the Agreement between Interpage and Alb-Gold. As decided above, the Agreement expired on 1 January 2018, in accordance with its terms, consistent with Interpage’s argument that the termination by Alb-Gold was invalid. Yet, the Alex’s Meat Agreement was set to expire almost one year after this date, on 16 December 2018.233 In other words, the supplies of Delicious Wonders pasta that Interpage had promised to Alex’s Meat for the period between 1 January and 16 December 2018 were not covered by any commitment by Alb-Gold to supply such pasta to Interpage. One should therefore deduct 230 tons234 of pasta on that count, that Alb-Gold had not undertaken to supply Interpage during that last period of time and for which it cannot be responsible. In summary, the calculation should be made on the basis of 960 tons less 230 tons, i.e. 730 tons.
280.
The Tribunal notes that the US$ 2.00 margin of Alex’s Meat considered for the calculation in the Alex’s Meat Settlement Agreement is high but consistent with the testimony of both Mr. Vernikov235 and Mr. Oterin236 in the arbitration and with the rest of the record. Alb-Gold did not provide evidence that this margin was wrong. The Tribunal accepts it.
281.
The nominal amount due by Alb-Gold to Interpage is therefore: 730,000 kgs x US$ 2.00, i.e. US$ 1,460,000, subject to discounting future payments starting 30 November 2018 as discussed below.
282.
The Tribunal considers that it should also normally deduct from the indemnification the margin made by Interpage on the Armbruster substitution purchases until the supplies of Armbruster pasta were stopped by the May 2015 injunction. The Tribunal decided above that it would not grant any indemnification to Interpage on account of the Armbruster losses alleged by Interpage. The Tribunal so decided because such loss was not proven with reasonable certainty. The burden of proving the loss from the Armbruster purchases was on Interpage to the extent that Interpage claimed lost profits. But the burden to prove that amounts should be deducted from the indemnification due by reason of the Alex’s Meat Settlement Agreement, and if so, how much, is on Alb-Gold and Alb-Gold has not discharged it. The Tribunal will therefore not deduct any profit gained by Interpage on the Armbruster products from the compensation it grants, assuming any such profit was made, which Interpage denies.
283.
The Tribunal also considers that it should prorate the 10% penalty calculated on the total value of the Alex's Meat Agreement according to same logic set out above of excluding 230 tons from indemnification. 730 tons divided by 960 tons is 76%. The Tribunal will therefore add only 76% of the penalty to be paid by Interpage to Alex’s Meat, i.e. US$ 220,096.
284.
The total nominal amount due by Alb-Gold to Interpage is therefore US$ 1,460,000 plus US$ 220,096, i.e. USS 1,680,096, subject to discounting future payments starting 30 November 2018 as discussed below. This also nominally corresponds to the same 76% of the amounts due by Interpage to Alex’s Meat.237
285.
Another important factor evoked by the Tribunal at the hearing and in the questions put to the Parties in Procedural Order No. 2 after the hearing is that Interpage has not yet paid all amounts under the Alex’s Meat Settlement Agreement, which will continue to run until 2026. Interpage claims the full value of the payments made and to be made. This cannot be correct for future payments because one dollar to be paid tomorrow is worth less than one dollar to be paid today. The Tribunal is only prepared to grant compensation for the payments by Interpage to Alex’s Meat already made, reduced as discussed above, and to be made, discounted to the date of this Award as discussed below, applying the notion of net present value (NPV) to future payments.
286.
This means that past payments, future payments and the applicable discount rate applying to the NPV calculation must be decided.
287.
With respect to past payments, the record shows that Interpage has consistently paid Alex’s Meat under the Alex’s Meat Settlement to date.238 Pursuant to Article 4 of the Alex's Meat Settlement Agreement, the first payment was made by Interpage to Alex’s Meat on 30 November 2016, in the amount of US$ 33,000. Eleven other payments of US$ 33,000 were subsequently made until 31 October 2017 included. Twelve payments of US$ 25,000 were then made from 30 November 2017 until 31 October 2018 included. Interpage confirmed in its Post-Hearing Brief that, as of 31 August 2018, Interpage had paid US$ 646,000 to Alex’s Meat, which the Tribunal accepts. It can therefore be considered with reasonable certainty that, by the time this Award is issued, two additional payment of US$ 25,000 were made by Interpage pursuant to Article 4 of the Alex’s Meat Settlement Agreement, yielding a total already paid by the date of the Award of US$ 696,000.
288.
This leaves US$ 1,680,096 less US$ 696,000, i.e. US$ 984,096 of future payments to be made, in monthly installments from 30 November 2018 until 30 November 2026 included, which corresponds to eight yearly installments of US$ 123,012 each on average.239
289.
The Tribunal must now calculate the NPV of the future stream of payments to be made by Interpage.
290.
The Tribunal agrees with Interpage240 that the applicable formula for calculating NPV is:

— Co = Initial Investment

C = Cash Flow

r = Discount Rate

T = Time

291.
In this case, there is no "initial investment", because we are dealing only with future payments by Interpage, i.e. future negative cash flows for Interpage.
292.
Interpage proposed, in response to the Tribunal’s question, that the US Federal Discount Rate of 2.5% annually shall be retained. Alb-Gold took no position on the question. The Tribunal does not agree with Interpage. As discussed below, the Tribunal decides that a 9% interest annually shall apply by virtue of New York law to the amounts already paid by Interpage for the past. The Tribunal sees no reason to apply a different rate for the future amounts to be discounted to the present value at the date of this Award. The Tribunal therefore decides that the net present value (NPV) of future payments to be made by Interpage should be calculated by using a 9% rate.241

NPV of future payments to be made by Interpage to Alex's Meat, as reduced by the Tribunal (US$)
Future paymentsDiscount rate
30 Nov 2018/30 Nov 2019 156,041 9%
30 Nov 2019/30 Nov 2020 117,030
30 Nov 2020/30 Nov 2021 117,030
30 Nov 2021/30 Nov 2022 117,030
30 Nov 2022/30 Nov 2023 117,030
30 Nov 2023/30 Nov 2024 117030
30 Nov 2024/30 Nov 2025 117,030
30 Nov 2025/30 Nov 2026 125,873NPV
Total 984,096 718,927

293.
The total of past payments (as reduced by the Tribunal) and future payments discounted to their net present value at the date of this Award is therefore US$ 696,000 plus US$ 718,927, i.e. US$ 1,414,927.

3.5 Is Interpage entitled to be compensated of 3.45% commissions for purchases under the Agreement?

294.
Interpage claims a 3.45% commission that Alb-Gold should have paid to it for purchases under the Agreement, in the amount of US$ 53,679.75.242 This corresponds, in Interpage’s view to 960 tons of pasta to be purchased at a price of US$ 1.74 per kg, i.e. US$ 1,670,400, the commissions on this volume being US$ 57,628.80.243 Alb-Gold paid US$ 3,679.75 in commissions already,244 so the amount owed is US$ 53,949.05.245
295.
Alb-Gold disputes that claim because the Agreement expired in its view on 31 December 2013, so that no commissions were due after this date in respect of sales in the United States. As for commissions due in respect of the last two invoices of Foodstock in 2014, these were stated to be withheld because of Mr. Vernikov's failure to return a security token.246
296.
The majority of the Tribunal partially grants the claim, because it decided that the Agreement was continued by the Parties after 31 December 2013, until 1 January 2018. However, for the same reason as that mentioned above regarding the claim for lost profits, one should deduct the seven containers which should have been ordered by Interpage and sold in the United States in 2013 and were not, add the container that Alb-Gold should have delivered pursuant to the 7 November 2013 order and did not deliver. One should also deduct the two containers sold to Foodstock in 2014 in respect of which commissions were already paid, i.e. eight containers in total, corresponding to 96 tons. 900 tons less 96 tons, i.e. 804 tons must therefore be considered as eligible for commissions. This yields a calculation of 804,000 kgs x US$ 1.74 per kg x 3.45%, i.e. USS 48,264.12.
297.
For the reasons set forth above, the minority of the Tribunal is of the opinion that Alb-Gold only owes Interpage the commission for the two Foodstock containers sold in 2014 and for which a commission has not yet been received by Interpage, which is 24,000 kgs x US 1.74 per kg x 3.45%, i.e. USS 1,440.72.
298.
Although no claim is formulated in this respect by Alb-Gold, and therefore no relief is granted in the dispositive part of the Award, the Tribunal trusts that Mr. Vernikov has returned or will promptly return the security token to Alb-Gold which Alb-Gold mentioned as a reason to withhold certain of the commissions.

3.6 Is Interpage entitled to a 10% commission on certain "trigger sales"?

299.
Interpage argues that the sanction for breaching Alb-Gold’s exclusivity obligations set forth in Article 3(c)(i) to (iii) of the Agreement is set forth in Article 3(d), which provides that the breaching party, to the extent that it had reason to know at the time of the sale of the Product that a resale was likely to occur, which is the case here, must pay the aggrieved party a 10% commission on such "trigger sale".247 To the extent that Alb-Gold made sales in the Territory, it should be subjected to trigger sales.248 Mr. Vernikov estimates that between 2014 and 2017, Alb-Gold has made direct sales of at least 50 containers of Products to Interpage’s former customers in the Territory.249
300.
Alb-Gold again argues that there were no trigger sales during the period of the Agreement, because a number of containers allegedly sold to Interpage’s former customers is in the period between 2014 and 2017, after the Agreement had expired in Alb-Gold’s view.250 Assuming the validity of the Agreement, there can also be no payment on the basis of "trigger sale" without a predicate breach of exclusivity.251
301.
The Tribunal rejects this claim, because, even assuming that Interpage had a right to be compensated on this count, the evidence of the number of trigger sales allegedly made by Alb-Gold is based solely on an assumption of Mr. Vernikov in his witness statement. This is insufficient evidence of the alleged trigger sales made.

3.7 Is Interpage entitled to be compensated for costs and expenses incurred for market development?

302.
Interpage claims US$ 11,523 in costs for the development of the market. These costs are contested by Alb-Gold.
303.
The Tribunal rejects the claim, because Interpage does not show that these costs were specifically incurred for the purposes of developing the market for the Delicious Wonders Products, to the exclusion of other products sold by Interpage. Furthermore, it appears likely that some or all of these costs would have been incurred in the ordinary course of business even in the absence of a breach of the Agreement.

3.8 Is Interpage entitled to be compensated for the attorney’s fees incurred in the Threeline litigation?

304.
Interpage claims compensation for the attorney’s fees it incurred in the Threeline litigation in New York. Alb-Gold disputes it.
305.
The Tribunal rejects the claim, first because there is no evidence that the Threeline litigation in New York, to which Alb-Gold was not a party, was caused by Alb-Gold. Alb-Gold may have played a role in the attitude that Threeline had decided to adopt vis-a-vis Interpage, but no sufficient and proximate causal link was established by Interpage between that litigation, the attorney’s fees paid by Interpage to prosecute it, and Alb-Gold’s actions in connection with the Agreement.
306.
Furthermore, these attorney’s fees are incurred in the context of a United States District Court action initiated by a non-party to this arbitration. Such attorney’s fees therefore normally fall to be recovered in the litigation in which they were incurred, and are not costs which can be placed at Alb-Gold’s door in this arbitration.

F. IS INTERPAGE ENTITLED TO THE RELIEF THAT IT SEEKS UNDER THE LANHAM ACT?

1. Does the Tribunal have jurisdiction over Interpage’s Lanham Act (Trademark) claims?

1.1 Summary of Claimant’s position

307.
Interpage’s position is that the Tribunal has jurisdiction to arbitrate trademark claims and related torts.252 Swiss law widely recognizes the arbitrability of trademark disputes.253 It is recognized by the majority of laws that an arbitrator can also decide disputes relating to the liability in tort of one of the parties in particular when the arbitration clause is sufficiently broad in scope, as is the case here.254 The Tribunal is also competent to grant, if it finds the conditions present, increased damages and attorney fees under the Lanham (Trademark) Act.255

1.2 Summary of Respondent’s position

308.
Alb-Gold argues that the Tribunal has no jurisdiction over Interpage’s Lanham Act claim because the Parties consented "at most, to arbitrate contractual disputes and other disputes arising ‘out of or in connection with’ the Agreement".256 Under New York and Swiss law, this would exclude Interpage's non-contractual claims as they are not linked to the terms of the Agreement but to alleged US law trademark rights that would exist independently of the Agreement.257 The choice of the CISG as the governing law of the Agreement also evidences a shared intent to arbitrate no more than contractual disputes.258

1.3 The Tribunal’s decision

309.
The Tribunal decides that it has jurisdiction over the Lanham Act claims brought by Interpage. Tort claims can be arbitrated under Swiss law, as the law in force at the place of arbitration, provided the arbitration clause is sufficiently broad to encompass such claims, and they are closely related to the contract in arbitration. The Tribunal finds that this is the case here.

2. Is the Order of the Eastern District Court of New York ruling on a trademark dispute between Threeline and Interpage admissible in this case, under the doctrine of collateral estoppel or otherwise?

2.1 Summary of Claimant’s position

310.
Claimant’s position is that the EDNY Order of 3 March 2017,259 is admissible under the doctrine of collateral estoppel in the present arbitration proceedings.260 Under New York law, the doctrine of collateral estoppel (issue preclusion) provides that factual issues already decided in a previous case can be admitted in new proceedings if factual issues are identical and (i) decided by the court, (ii) necessary for the court’s final decision and (iii) decisive in the new proceeding.261 This doctrine applies only if the parties are identical, unless there is privity between one of the parties to the first case and the opponent in the new case.262
311.
Claimant submits that (i) New York law is applicable to issues of burden and standard of proof pursuant to Articles 184 and 187 PILA and that (ii) there is privity between Interpage, Alb-Gold and Threeline because, under New York law, privity applies to civil conspirators and hence to Alb-Gold and Threeline.263
312.
Even if the Arbitral Tribunal were not to admit the EDNY Order, Claimant submits that the EDNY Order supports Interpage’s evidence adduced against Alb-Gold.264

2.2 Summary of Respondent’s position

313.
If the Tribunal were to find that it had jurisdiction over trademark claims, Respondent’s position is that Interpage’s attempt to import a US Federal District Court’s findings into a trademark case by "collateral estoppel" should not succeed, because (i) Alb-Gold was never a party to the litigation between Interpage and Threeline; (ii) there is no identity of issues with those litigated in the EDNY litigation and (iii) because the EDNY Court made no findings

regarding Alb-Gold’s knowledge or state of mind.265

2.3 The Tribunal’s decision

314.
The Tribunal has no difficulty to admit - and in fact has no reason to reject -the EDNY Order as evidence in these proceedings. It is not prepared however, to decide that the EDNY Order somehow binds the Tribunal by virtue of collateral or issue estoppel or otherwise.
315.
The Tribunal, comprised of three arbitrators chosen and given a specific mandate by the Parties, is not entirely analogous to domestic court judges, and considers that it has a specific duty to the Parties to decide the issues put before it for itself, paying due regard to all the elements of the case, including the EDNY Order, without however being legally bound by any of them.
316.
The fact that Alb-Gold was not a party to the Threeline litigation in New York reinforces the fact that Alb-Gold must be at liberty freely to discuss the findings of the EDNY Order before the Tribunal, to the extent relevant, and that the Tribunal must similarly be at liberty to make its decision based on the adversarial debate taking place before it.266 This is what happened in this arbitration.

3. If the Tribunal has jurisdiction over Interpage’s tort claims, did Alb-Gold commit torts (unfair competition and unauthorized use of trademark) against Interpage and is Interpage entitled to trebled damages?

3.1 Summary of Claimant’s position

317.
First, Interpage’s position is that Alb-Gold is liable by the collateral estoppel application of the EDNY Order for (i) unfair competition by misappropriating in bad faith the labors and expenditures of Interpage which had spent time and money developing the Israeli market and (ii) counterfeiting as Alb-Gold aided Threeline to sell the Products bearing Claimant’s "Delicious Wonders" trademark.267
318.
Second, Claimant argues that Alb-Gold is independently liable for cognizable torts under a civil conspiracy cause of action, pursuant to the Lanham Act and New York State law for (i) unauthorized use of Interpage’s trademark on products sold to Threeline268 and (ii) unfair competition, by selling the Products to Threeline, a competitor of Interpage, while the Agreement was still in place.269
319.
Third, Claimant argues that Alb-Gold committed tortious interference with contract by undermining Claimant’s performance of the Alex’s Meat Agreement.270
320.
In addition, and more generally, Claimant alleges that the conspiratorial collusion with Threeline is evidenced by Alb-Gold planning to bring confusion in the minds of Interpage’s customers by (I) giving Threeline the artwork developed by Interpage; (ii) asking Interpage to stop doing business with Tress to allow Threeline to approach this company and start doing business with it; (iii) siding with Threeline in its litigation against Interpage; (iv) breaching the duty of exclusivity provided in the Agreement; (v) accusing Interpage of an act which was Threeline’s doing (branding pasta to retailers at prices far lower than those charged by Alb-Gold’s general importer); (vi) cancelling Interpage’s last order to put it in difficulty towards Alex’s Meat; (vii) in these proceedings, making the same allegations as Threeline did in the EDNY proceedings and (viii) altering evidence as did Threeline in the EDNY proceedings.271 Claimant added in its Post-Hearing Brief that collusion is also evidenced by the fact that Alb-Gold changed from Interpage in favor of Threeline, a distributor that allegedly sold less containers and for a lower price.272
321.
Claimant’s position is therefore that, Alb-Gold’s tortious acts against it, which are not covered by the CISG, entitle Claimant to separate damages which may be increased at the Tribunal’s discretion up to three times the proven damage under Section 35 of the Lanham Act.273
322.
Claimant argues that the injury for which it may be entitled to recovery is not the conspiracy itself but the damage caused by specific overt acts, which are (i) Respondent’s violation of Claimant’s trademark by copying such trademark; (ii) keeping Interpage from dealing with an Alb-Gold subsidiary for pasta orders; (iii) termination of the Agreement when learning of the Alex’s Meat Agreement in order to jeopardize Claimant’s relationship with Alex’s Meat while at the same time becoming free to enter into a contractual relation with Threeline.274

3.2 Summary of Respondent’s position

323.
Respondent argues that Interpage’s claim of collusion with Threeline is meritless, because Alb-Gold had always meant to contract with Threeline rather than Interpage.275 In addition, Interpage has not shown an agreement between Alb-Gold and Threeline nor any action in furtherance of any agreement, as required to establish civil conspiracy under New York law.276 Finally, at the time the "chicken-and-egg" logo was developed, all evidence suggested that Interpage was a subsidiary of Threeline and that Mr. Vernikov was in fact working on Threeline’s behalf.277
324.
Interpage’s alleged unfair competition claim is fatally flawed, because the Agreement did not prevent Alb-Gold from selling competing brands other than "Delicious Wonders" into the Israeli market.278 Interpage’s alleged counterfeiting claim also fails because Alb-Gold reasonably followed Threeline’s instructions with respect to trademarks.279
325.
Respondent argues that to recover monetary damages under the Lanham Act, Interpage should have proven either actual consumer confusion or that Alb-Gold intentionally set out to deceive the public and that Interpage did not.280 Interpage has never even alleged nor proven that it suffered any damages as a result of a purported Lanham Act violation.281
326.
Respondent’s position, in short, is that Interpage has no right to treble damages. Interpage does not allege actual damages suffered under the Lanham Act, which would need to be proven as a prerequisite for discretionary enhanced damages.282 Awarding damages for the supposed infringement of its trademark would also present an unacceptable risk of double recovery with the settlement entered into between Interpage and Threeline as a result of the EDNY litigation.283

3.3 The Tribunal’s decision

327.
Pursuant to the legal authorities cited at paragraph 119 of the Statement of Claim, in order to plead a cause of action to recover damages for civil conspiracy under the Lanham Act,284 the plaintiff must allege (i) a cognizable tort, coupled with (ii) an agreement between the conspirators regarding the tort and (iii) an overt action in furtherance of that agreement. Alb-Gold agreed with these criteria at paragraph 48 of its Rejoinder. In Procedural Order No. 2, the Tribunal asked Interpage to specify what the cognizable tort complained of by Interpage under the civil conspiracy related cause of action was. Was it the alleged counterfeiting by the Respondent of the Claimant’s trademark and/or unfair competition? Or something else or a combination of various torts and, if so, which one(s), precisely? The Tribunal also asked what, in any event, was the causal link between the alleged tort on this civil conspiracy count and the damage claimed, in particular on the basis of the Alex’s Meat Settlement Agreement.
328.
Having carefully examined Interpage’s answers in its Post-Hearing Briefs and the rest of the record, the Tribunal considers that Interpage has not discharged it burden of proof on this point.
329.
Each of the three specific torts complained of by Interpage is examined below.
330.
First, while there is hard evidence that Alb-Gold breached Interpage’s exclusivity rights under the Agreement, there is only limited and circumstantial evidence of an agreement between Threeline and Alb-Gold regarding the alleged tort and of an overt action in furtherance of that agreement, implying a tortious intention. Specifically, the fact that Threeline had registered the "chicken-and-egg" trademark may have led both Threeline and Alb-Gold to the thought (albeit misconceived) that Threeline had a legitimate right to that trademark, which it was successful in persuading a New York judge on a provisional basis in May 2015.
331.
Second, keeping Interpage from dealing with an Alb-Gold subsidiary for noodle orders cannot readily be attributed to Threeline but only to Alb-Gold and cannot legally characterize as a conspiracy between two persons.
332.
Third, the Tribunal decided above that Mr. Dörner had communicated orally to Mr. Vernikov during the first half of December 2013 Alb-Gold’s decision to stop supplying pasta to Interpage for the United States market. The Tribunal therefore rejects the contention that Alb-Gold’s decision was made after learning of the Alex’s Meat Agreement while at the same time becoming free to enter into a contractual relation with Threeline.
333.
In summary, the Tribunal finds that there is insufficient evidence to conclude that the factual and legal predicates for a finding of conspiracy in connection with a Lanham Act violation are here met and, a fortiori, no finding of treble damages follows.

G. IS ALB-GOLD ENTITLED TO ITS COUNTERCLAIM?

1. Summary of Respondent’s position

334.
Respondent makes the following arguments.
335.
Should the Tribunal find the Agreement to have been a valid contract, then Alb-Gold’s counterclaim should succeed.285 Interpage breached the Agreement by failing to undertake "best efforts" to develop the market for Alb-Gold’s products under the "Delicious Wonders" label as required under Article 6 of the Agreement, which provided that a minimum of 12 containers should be purchased and sold or distributed during the first year of this Agreement.286 Interpage did not meet that threshold. Therefore, Alb-Gold is entitled to lost profits equal to those from the sale of the additional containers that the Parties agreed would have been sold if Interpage had actually made "best efforts", of no less than EUR 15,990.94 plus interest.287

2. Summary of Claimant’s position

336.
Claimant makes the following arguments.
337.
Article 80 of the CISG prevents Respondent from raising any claim arising out of the non-performance, including its right to damages. Alb-Gold’s counterclaim should fail because (i) Article 6 of the Agreement is not be a "set of guidelines

against which the best efforts will be measured" as required by New York law, but the result of these best efforts and because (ii) Interpage did use its best efforts to market the Products, but these efforts were diminished by Alb-Gold's and Threeline's actions.288

3. The Tribunal’s decision

338.
Regardless of the fact that Interpage did not order the 12 containers that it should have ordered in order for the Agreement to be automatically renewed at the end of 2013, there was no certainty for Alb-Gold upon signature of the Agreement that these containers would be ordered, and the failure to realize these orders cannot be characterized as a breach of contract. This is precisely the reason why the Parties had provided in Article 7 that the Agreement could expire before the end of the five-year period. Absent such a certainty, Alb-Gold did not have any vested right to the profits that would have been generated by the orders that Interpage should have made to reach 12 containers and did not make, whatever this number is.289 The counterclaim is therefore rejected.

H. INTEREST

1. Summary of Claimant’s position

339.
Claimant’s position is that simple interest is due at a rate of 9% per year under New York law, because the CISG does not specify an interest rate, this interest is claimed, as at the following dates:

- Lost profits: the loss occurred at the latest at the time when Claimant, following Alb-Gold’s final breach of the Agreement, finally ends its collaboration with Alb-Gold on 14 July 2014. 9% interest must therefore be calculated on lost profits as of 14 July 2014 and until final payment of Claimant's claim.

- Loss on substitution purchase: the substitution purchase with Armbruster took place as of 1 April 2014. 9% interest must be calculated as of that date.

- Settlement agreement with Alex’s Meat: pursuant to the Alex's Meat Settlement Agreement, Claimant is paying to Alex's Meat an amount of US$ 2,209,600. 9% interest must be calculated on each of the instalments already paid.

- Commissions pursuant to Annex 1 of the Agreement: commissions were to be paid on orders. The loss on the commission for orders also started on 14 July 2014.

- Commissions for trigger sales: commissions were to be paid on trigger sales. The loss on the commission for trigger sales also started on 14 July 2014.

- Market development expenses: the loss on market development expenses also occurred on 14 July 2014. 9% interest must be calculated as of that date.

- Attorneys’ fees: the loss on the attorneys’ fees was incurred when the settlement agreement with Threeline was entered into, on 16 May 2017. 9% interest must be added on the attorney's fees as of that date.290

2. Summary of Respondent’s position

340.
Respondent argues that Interpage’s claim for interest at a rate of 9% is without merit because, if granted, it would amount to a windfall.291 According to Respondent, any interest on Interpage’s hypothetical award should be at a risk-free commercial rate.292

3. The Tribunal’s decision

341.
The Tribunal agrees with Interpage that a 9% interest rate under New York law is applicable293 and, to the extent that the CISG were deemed to be relevant as well, and that the CISG does not specify an interest rate to be applied, the Tribunal decides that it is appropriate to use the same rate.
342.
The Tribunal, however, needs to distinguish between the various amounts granted, which carry interest starting from different dates.
343.
The Tribunal noted that, while Interpage claimed interest starting from a number of different dates in this arbitration, specifically from the date of actual payments made to Alex’s Meat in the past, Interpage’s 22 June 2017 initial demand letter sent through its then attorneys indicated that interest shall be due "as of the date of this demand".294
344.
The Tribunal considers this date as the appropriate date for amounts awarded by the Tribunal corresponding to payments made by Interpage or losses incurred before 22 June 2017.
345.
By 22 June 2017, the Agreement was to remain in effect for approximately six months, until it expired in the majority view on 1 January 2018. Assuming a linear distribution of orders during the year, this means that approximately 120 tons of pasta, out of the minimum 240 tons of pasta to be bought by Interpage from Alb-Gold in 2017,295 to be resold to Alex’s Meat, was still to be bought by Interpage on 22 June 2017 for the year 2017. In other words, 120 tons out of 780 tons used for the calculation of lost profits,296 correspond to profits which would have been generated for Interpage after 22 June 2017.
346.
The Request for Arbitration was filed on 18 October 2017. The Tribunal estimates that approximately 80 tons out of these 120 tons would have generated a profit for Interpage between 22 June 2017 and 18 October 2017. The remaining 40 tons would have generated a profit after 18 October 2017.
347.
The following amounts of lost profits therefore carry interest starting from the following dates:

• 660,000 kgs x US$ 0.80 = US$ 528,000 carry interest from 22 June 2017;

• 80,000 kgs x US$ 0.80 = US$ 64,000 carry interest from 18 October 2017; and

• 40,000 kgs x US$ 0.80 = US$ 32,000 carry interest from the date of the Award.

348.
By 22 June 2017, seven payments of US$ 33,000 each had also been made by Interpage to Alex’s Meat pursuant to Article 4 of the Alex’s Meat Settlement Agreement, i.e. US$ 231,000. These payments will carry interest from 22 June 2017.
349.
Between 22 June 2017 and 18 October 2017, the date of the Request for Arbitration, another four payments of US$ 33,000 were made by Interpage, i.e., US$ 132,000. These payments will carry interest from 18 October 2017.
350.
The difference between US$ 696,000 and the above two series of payments is US$ 333,000 and corresponds to the portion of the payments to be made by Interpage to Alex’s Meat for the period starting 18 October 2017 until the date of this Award. The Tribunal will consider that this amount shall bear interest from the date of the Award.
351.
The amount of US$ 718,927 corresponding to the net present value of future payments to be made by Interpage to Alex’s Meat, as reduced by the Tribunal, carries interest for the future, starting from the date of this Award.
352.
On 22 June 2017, because as noted above the Agreement had not yet expired in the majority view, some of the sales remained to be made, and the 3.45% commissions were therefore not yet all due to Interpage.
353.
As indicated above, approximately 80 tons should have been delivered by Alb-Gold to Interpage between 22 June 2017 and 18 October 2017 and another 40 tons approximately between 18 October 2017 and 1 January 2018.
354.
The following amounts of commissions to be paid by Alb-Gold therefore carry interest starting from the following dates:

• 684,000 kgs x US 1.74 per kg x 3.45% = US$ 41,060.52 carry interest from 22 June 2017;

• 80,000 kgs x US 1.74 per kg x 3.45% = US$ 4,802.40 carry interest from 18 October 2017; and

• 40,000 kgs x US 1.74 per kg x 3.45% = US$ 2,401.20 carry interest from the date of the Award.

I. DOUBLE COMPENSATION?

355.
The Tribunal feels compelled at the end of this Award to address the question of a possible double compensation raised by Alb-Gold.297 In short, Alb-Gold argues that, because Interpage entered into a settlement agreement with Threeline which resulted in certain undisclosed payments to Interpage, one cannot exclude that certain amounts which the Tribunal may decide to compensate, as it does, may have already been compensated under the Threeline settlement.
356.
The Tribunal shares Alb-Gold’s concern that Interpage should not be compensated twice for the same damage. There is no evidence put before the Tribunal that this is the case, however. The Tribunal cannot speculate as to the contents of the Threeline settlement agreement with Interpage, which was not put in evidence in these proceedings and resolved different claims in different proceedings. The Tribunal simply notes that, if for any reason Alb-Gold were to have concrete evidence that some double compensation occurred in some respect as a result of this Award and the Threeline/lnterpage settlement agreement taken together, Alb-Gold would have a remedy in arbitration under the Agreement and the Dispute Resolution Agreement, in order to have any reimbursement ordered as result of such an hypothetical double compensation. The Tribunal has no reason to think that this should be the case, and does not believe that speculations of such grounds can or should prevent an award of damages to Interpage. The Tribunal did, however, wish to clarify that it has taken Alb-Gold’s legitimate concern into account in this respect.

J. COSTS

357.
Both Parties claim their costs.

1. Summary of Claimant’s position

358.
Interpage claims the following costs:298

• USS 103,829.85 (Landolt & Koch legal fees and expenses), plus "an additional reasonable portion", at the Tribunal’s discretion, of a 10% success fee.

• USS 48,818 (Charles Knull PC legal fees and expenses)

• US$ 5,000 (Epstein Drangell LLP legal fees and expenses)

• US$ 5,466.25 (Yeskoo Hogan & Tamlyn LLP legal fees and expenses)

• USS 16,297.95 (Sidley Austin LLP legal fees and expenses)

• USS 205,674.74 (advance on costs SCC)299

• US$ 8,110.05 (travel costs of witnesses and party representatives to attend the hearing)

• US$ 1,263.48 (Russian-English interpreter at the hearing)300

• US$ 3,237.97 (hearing room rental)

• US$ 2,112,46 (court reporter)301

• Total: US$ 399,810.99

359.
Counsel confirmed that these amounts were paid and that, for those amounts not yet paid, Mr. Vernikov confirmed that they will be paid promptly.302
360.
Interpage asserts that all costs in this arbitration could have been avoided "if Respondent had not taken Threeline’s side in 2016", that it was reasonable for it to hire New York Counsel to advise on the New York law aspects of the case and that Interpage contributed to the efficiency and expeditiousness of the case.303 Respondent, it is argued, in contrast did not. Interpage adds that Respondent's costs are in its view excessive.
361.
Interpage specifically requests that all the costs of the jurisdictional phase of the arbitration be borne by Alb-Gold, that the Tribunal shall order Alb-Gold to pay a total amount of US$ 399,810.99 as legal fees and expenses and that all amounts payable by Alb-Gold as costs shall bear a 9% interest as of the date of the Award.304

2. Summary of Respondent’s position

362.
Alb-Gold claims the following costs:305

• US$ 685,807.80 plus US$ 220,899.42306 (Alston & Bird legal fees and expenses);

• EUR 35,025 plus EUR 1,500 (Voelker legal fees and expenses).307

• CHF 7,062.25 (hotel Kempinsky Geneva)

• EUR 1,920.77 (Court reporter)

• EUR 5,819.51 (other costs)

• Total: US$ 906,707.22, plus EUR 44,265.28 plus CHF 7,062.25.

363.
Alb-Gold however indicated that an amount of US$ 30,000 should be deducted on account of Mr. Dörner's inaccurate testimony, as evidenced by Mr. Dörner’s third witness statement, "and on related issues".308
364.
Counsel confirmed that these amounts were paid and that, for those amounts not yet paid, Alb-Gold confirmed that it had undertaken to pay the relevant invoices.309
365.
Alb-Gold asserts that it should be awarded all of its incurred costs under the circumstances of the case and that Interpage compelled Alb-Gold to spend more than what would have been necessary in an ordinary contract dispute. This is by reason of Interpage’s Lanham Act claim which, Alb-Gold argued, was without merit.310

3. The Tribunal’s decision

366.
Articles 49(6) and 50 of the SCC Rules provide:

Article 49(6)

Unless otherwise agreed by the parties, the Arbitral Tribunal shall, at the request of a party, apportion the Costs of the Arbitration between the parties, having regard to the outcome of the case, each party’s contribution to the efficiency and expeditiousness of the arbitration and any other relevant circumstances.

Article 50

Unless otherwise agreed by the parties, the Arbitral Tribunal may in the final award, at the request of a party, order one party to pay any reasonable costs incurred by another party, including costs for legal representation, having regard to the outcome of the case, each party’s contribution to the efficiency and expeditiousness of the arbitration and any other relevant circumstances.

367.
The SCC Rules therefore distinguish the costs of the arbitration from the other reasonable costs to be allocated. The Tribunal has a wide latitude to allocate both, taking into account the criteria set out in these provisions.
368.
Interpage essentially prevails in this arbitration even though its Lanham Act claim fails. The Tribunal emphasizes that it does not consider the Lanham Act claim to have been made frivolously, even if the Tribunal ultimately rejects it The facts of the case taken in the round do not cast a favorable light on Alb-Gold and its representatives and employees involved in the decision to stop doing business with Interpage in the United States in 2013 and beyond.
369.
Mr. Dörner’s creation and backdating of the termination letter by over three years does not serve to cast a better light on Alb-Gold.
370.
Interpage had to incur costs to obtain an award vindicating its rights under the Agreement and these costs must in the Tribunal’s view substantially be borne by Alb-Gold.
371.
The majority of the Tribunal is of the view that an approach strictly based on the prorata of the damages granted would not be appropriate in this case, especially to the extent where the legal fees incurred by Interpage311 are significantly inferior to the legal fees incurred by Alb-Gold.