The Agreement provided for the delivery by the Respondent of 720,000 metric tonnes of coal in 12 monthly shipments, each monthly shipment consisting of 60,000 tons (+ or - 10%), which means between 54,000 and 66,000 tonnes. The monthly deliveries were to commence in January 2003 and be completed by December 2003. (Agreement, Section 2.2.)
By the Addendum, the Parties agreed that the quantity of coal to be delivered by the Respondent to fulfil its contractual obligation under the Agreement is 187,682 tonnes. (Second Amended Notice, Exh. B, at 1.)
AMCI also undertook to deliver and JLEC to accept to receive at least 40,000 mts before the end of February 2004, plus at least an additional 60,000 mts before the end of April 2004, and the remainder before the end of June 2004. (Second Amended Notice, Exh. B, at 1.)
The Respondent did not deliver any coal after the signing of the Addendum.
No comments were raised regarding jurisdiction of this Arbitral Tribunal, which therefore considers that it has jurisdiction over this dispute.
According to paragraph 3 of the Procedural Order No. 4 :
"The Parties are furthermore invited to submit, within the same time-limits,
- all documentary evidence they wish to rely on;
- witness statements signed by the persons they wish to testify in these proceedings."
"AMCI fully maintain their points as presented on 15th October and by this letter reiterate those points.
With reference to the facts stated at the end of page 2 of the Respondents' Memorandum of I5th October, we submit as documentary evidence (by fax) the report issued by the French "Observatoire de l'Energie" in April 2004.
We remain at the Arbitrators' disposal for any oral hearing they might wish to call in this case."
This Annex, apparently from a Website of the French Government, is entitled "L'evoluation des prix spot du charbon au second semestre 2003". No other documentary evidence or any witness statements were included with this submission. Likewise, in the 15 October submission to which this letter referred, the Respondent had submitted no documentary evidence and no witness statements by any persons it wished to testify in these proceedings, and that submission did not refer to any documentary evidence or potential witnesses.
"Given the absence of any material facts in dispute, the apparent decision of AMCI not to submit any witness statements or respond to JLEC's points of law, the documents, legal memorandum and witness statement submitted by JLEC, and the continuing interest and other costs being incurred by JLEC, we respectfully request that this Tribunal now decide this matter on the submissions made by the parties as expeditiously as possible."
"Following to my correspondence of the 20th December 2004, I kindly request the arbitrators to fix a date for oral hearing in order to argue this case.
At this hearing, Mr. Ernie Thrasher will be present and will testify."
"Mr Thresher's presence is necessary to give information to the Tribunal on the facts, the main point being to know the truth rather than to be in compliance with a time schedule."
The Respondent furthermore reiterated its request of 6 January that there should be a hearing:
"Apart from the witnesses' testimonies, a hearing is always necessary and usual to argue the case. We insist to have a oral hearing to present our arguments and have a real debate, as per the common practice, since any party has the right to a fair trial as per the rules admitted world wide and especially by article 6 of the European Convention on Human Rights."
"If either party so requests at any stage of the proceedings, the arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument. In the absence of such a request, the arbitral tribunal shall decide whether to hold such hearings or whether the proceedings shall be conducted on the basis of documents and other materials."
Article 15(2) is part of the due process provisions of the UNCITRAL Rules. Due process is a basic principle of arbitration also incorporated in Articles 1502, 4 and 1504 of the New French Code of Civil Procedure. The principle requires that each party be given the opportunity to present its factual and legal arguments and to acquaint itself with and rebut those raised by its opponent. (See Fouchard Gaillard Goldmann on International Commercial Arbitration, Kluwer, 1999, note 1639.) Each party must therefore be given the opportunity to present its case, even though a party may in fact decide not to do so. (Id. note 1641). A hearing can therefore be held, as also envisaged in UNCITRAL Article 15(2), in order to hear witness evidence or oral arguments.
"AMCI respectfully request the Arbitral Tribunal to dismiss the Claimant's request on the basis of article 8.1.2 of the contract.
Further or in the alternative, to dismiss the Claimant's request on the basis of article 15 of the contract.
Further of in the alternative, to limit the Respondents' liability to the amount of USD 1.5 million by application of article 9.3 of the contract.
Further or in the alternative, to appoint a suitable qualified expert to investigate and issue a report as to the potential existence of any loss as alleged by the Claimants and if so, to assess the amount thereof."
"One party cannot claim to be able to rely on a Force Majeure Event against the other unless the Party which wishes to claim to be able to rely on it shall have, without delay and as soon as materially possible, taken the appropriate measures to inform the other Party in writing of the event. In addition, this notice should, in particular, include all information and evidence then available to the affected Party permitting the assessment of the reality and the scope of the Force Majeur Event."
a) the fees of the arbitral tribunal;
b) the travel and other expenses incurred by the arbitrators; and
e) the costs for legal representation and assistance to the successful party if such costs were claimed during the arbitral proceedings, and only to the extent that the arbitral tribunal determines that the amount of such costs is reasonable.
A. The Respondent, AMCI Export Corporation, shall pay the Claimant, Jorf Lasfar Energy Company SCA, the sum of USD 7’099'483.60 (US Dollars seven million ninety-nine thousand four hundred eighty-three and sixty cents).
B. The Respondent shall also pay the Claimant interest (1) of USD 184'758.84 (US Dollars one hundred and eighty-four thousand seven hundred fifty-eight and eighty-four cents) for the period through 31 January 2005, and (2) thereafter until full payment on the principal sum of USD 7’099'483.60 at the rate of Libor + 2 percentage points per annum.
C. The Respondent shall also pay the Claimant an amount of USD 100'000 (US Dollars one hundred thousand) as costs for legal representation and assistance.
D. The Respondent shall also pay to the Claimant an amount of EUR 60'000 (Euro sixty thousand) as fees and expenses of the Arbitral Tribunal.