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

Award

1. FACTS AND PROCEDURAL HISTORY

1.
The Claimant is a société en commandite par actions organised under the laws of the Kingdom of Morocco with its principal place of business at Centrale Thermique de Jorf Lasfar, B.P. 99 Sidi Bouzid, El Jalida, Morocco. It operates a coal-fired power station on the Atlantic coast of the El Jalida province of Morocco.
2.
The Respondent is a corporation organised under the laws of the United States, with its principal place of business at One Energy Place, Latrobe, Pennsylvania 15650 U.S.A.
3.
On 4 October 2002 the Parties concluded a Coal Supply Agreement (the "Agreement"). (Second Amended Notice of Arbitration and Statement of Claim (the "Second Amended Notice"), Exh. A.)

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.)

4.
By the fall of 2003 the Respondent had delivered the equivalent of 532,318 tonnes. On 23 December 2003, the Parties entered into an Addendum and Agreement No. 1 to Coal Supply Agreement CSA 720 dated 4 October 2002 (the "Addendum"). (Second Amended Notice, Exh. B.)

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.

5.
By letter of 5 April 2004, the Claimant informed the Respondent that it had exercised its right pursuant to Section 2.3(d) of the Agreement to purchase coal from a third party as replacement for AM.CI's failure to deliver the 40,000 tonnes of coal due by the end of February 2004, and it sent an invoice for an amount of USD 2’005’172.35 of "incremental costs of procuring the replacement coal" from Glencore. (Second Amended Notice, Exh. C.)
6.
By letter of 3 May 2004, the Claimant sent a similar letter in response to the Respondent’s failure to deliver the 60,000 tonnes due by the end of April 2004, and it sent an invoice for an amount of USD 2'929'653.52 in incremental costs in procuring the coal, again from Glencore. (Second Amended Notice, Exh. D.)
7.
The Claimant thereupon served the "Notice of Arbitration and Statement of Claim" dated 18 May 2004 (the "Notice").
8.
By letter of 1 July 2004, the Claimant sent a further letter in response to the Respondent’s failure to deliver the remainder of the coal due under the Addendum by the end of June 2004, and, again, it sent an invoice, this time for an amount of USD 3'664'657.73 for procuring replacement coal, this time from RAG Trading GmbH. (Second Amended Notice, Exh. E.)
9.
The Claimant then served the "Amended Notice of Arbitration and Statement of Claim" of 21 July 2004 (the "Amended Notice").
10.
On 10 August 2004, the Claimant secured payment of USD 1’500'000 under a Performance Bond which the Respondent had posted, with a value date as of August 6, 2004.
11.
The Claimant then filed the "Second Amended Notice of Arbitration and Statement of Claim" of 10 August 2004.
12.
By paragraph 25, the Claimant there sought the following relief:

"JLEC respectfully requests an award:

a. Granting JLEC damages in the amount of $7t099,483.60;

b. Granting JLEC all costs of the arbitration, including attorneys' fees;

and

c. Awarding JLEC interest on all amounts so due."

13.
In its Notice, the Claimant appointed Donald Francis Donovan, Esq., Debevoise & Plimpton, LLP, 919 Thirst Avenue, New York, NY 10022, USA as arbitrator.
14.
On 23 June 2004, the Respondent appointed Me Jean-Yves Grondin, Rue des Bauches F-75016 Paris France as arbitrator.
15.
Mr. Grondin and Mr. Donovan invited Dr. Robert Briner, Lenz & Staehelin, Route de Chêne 30, 1211 Geneva 17, Switzerland, to serve as chair of the Arbitral Tribunal. By letter of 27 July 2004, Dr. Briner accepted the appointment and declared that he was not aware of any circumstances likely to give rise to justifiable doubts as to his impartiality or independence.
16.
By e-mail of 28 July 2004, Mr. Grondin and Mr. Donovan informed the Parties of Dr. Briner’s appointment.
17.
No comments were received from the Parties regarding the appointment of the Arbitral Tribunal, which therefore considers that it has been properly constituted.

No comments were raised regarding jurisdiction of this Arbitral Tribunal, which therefore considers that it has jurisdiction over this dispute.

18.
The Notice and the Amended Notice contained requests for interim relief regarding the issuance of a Performance Bond or an order extending the terms of the existing Performance Bond. (Notice § 28; Amended Notice § 30).
19.
The Arbitral Tribunal thereupon on 4 August 2004 issued Procedural Order No. 1 inviting the Respondent to submit by 10 August 2004 its answer to the request of the Claimant regarding interim relief and fixing a further time limit for the Respondent until 17 September 2004 to submit its Statement of Defence to the Amended Notice of Arbitration and Statement of Claim.
20.
On 10 August 2004 the Respondent submitted its Points of Defence to the Claimant’s application for interim relief.
21.
When on 10 August 2004 the Claimant secured payment of USD 1’500'000 under the Performance Bond with a value date as of 6 August 2004, the request for interim measures became moot.
22.
Procedural Order No. 2 of 12 August 2004 acknowledged receipt of the Second Amended Notice of 10 August 2004 and stated that further procedural decisions would be taken after receiving the Respondent's Statement of Defence to the Second Amended Notice of Arbitration. Furthermore, each Party was invited to pay an advance on fees and costs of the Arbitral Tribunal of EUR 30'000.
23.
Based on the Respondent's request of 10 September 2004 for an extension of the time limit to file its Statement of Defence, Procedural Order No. 3 of 14 September 2004 granted the Respondent such an extension until October 15, 2004.
24.
With Procedural Order No. 4 of 25 October 2004 the Tribunal acknowledged receipt of the Respondent's Points of Defence of 15 October 2004. It granted the Claimant a time limit until 22 November 2004 to answer the Respondent’s submission of 15 October and the Respondent in turn was given a further month until 20 December 2004 to respond to the submission of the Claimant.

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."

25.
The Arbitral Tribunal considered that there was at that time no need for a procedural conference but indicated that it would be prepared to hold a telephone conference on 15 November 2004. No request by a Party was made within the time limit fixed at 5 November 2004 to hold such a telephone conference.
26.
As the Respondent had not paid its part of the advance for costs of EUR 30'000 the Tribunal set a further period until 8 November 2004 for the Respondent "to declare whether or not it intends to pay its share".
27.
The Claimant with e-mail of 26 October 2004 proposed that the Respondent be invited to produce certain documents pertaining to its defence. The Respondent with letter of 29 October 2004 considered "I think that there is no need to modify your Procedural Order No. 4 since it clearly provides that the parties must submit all documents they wish to rely on by 20 December".
28.
The Arbitral Tribunal with Procedural Order No. 5 of 5 November 2004 informed the Parties that "it will make a decision on the further procedure after having received the two submissions and the Parties may submit their proposals for the further procedure and all outstanding and relevant issues not later than 7 January 2005."
29.
With Procedural Order No. 6 of 16 November 2004 the Arbitral Tribunal noted that it had not received any response from the Respondent to the invitation to declare whether or not the Respondent intended to pay its share of the advance on fees and costs (Order No. 4 § 5) and it invited one or the other of the Parties to make the required payment of EUR 30'000 by 15 December 2004 at the latest. Payment of this amount was made by the Claimant and received by the Arbitral Tribunal on 15 December 2004.
30.
In accordance with the Procedural Orders Nos. 1 to 3 mentioned above the Respondent submitted on 15 October 2004 its "Points of Defence". It consisted of five pages of explanations and arguments and as one of the conclusions it requested "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". No documentary evidence was submitted nor any witness statements by any persons it wished to testify in these proceedings and the statement itself does not refer to any potential witnesses.
31.
The Claimant submitted on 19 November 2004 its Answer to Respondent's Points of Defence together with a Witness Statement of Steven F. Strang, General Manager of the Claimant. Mr Strang’s Statement deals in its first section with facts relevant to the Claimant's claims and in its second section with facts relevant to the defences raised by the Respondent in its 15 October 2004 Points of Defence.
32.
In accordance with Procedural Order No. 4 § 2, the Respondent with letter of 20 December 2004 responded to the 22 November submission of the Claimant. This response consisted of the following three paragraphs:

"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.

33.
By Procedural Order No. 5, the Tribunal had advised that "the Parties may submit their proposals for the further procedure and all outstanding relevant issues not later than 7 January 2005". In response to that Order, by letter of 28 December 2004, the Claimant submitted its proposal in which in eight pages it summed up its position and concluded:

"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."

34.
On 6 January 2005, the Respondent sent the following letter to the Tribunal:

"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."

35.
On 7 January 2005, the Claimant opposed the Respondent’s request that an oral hearing take place and that Mr. Thrasher be heard as a witness. The Respondent requesting that Mr. Thrasher be heard as witness in view of the presumed presence at the hearing of Mr. Strang, the witness for the Claimant. The Respondent stated:

"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."

36.
The Arbitral Tribunal thereupon on a letter of 11 January 2005 issued Procedural Order No. 7 in which it informed the Parties of its decision that no oral hearing would take place and the proceedings were closed with the exception of the requests by the Parties for their costs which should be submitted by 24 January with the possibility of submitting comments by 1 February regarding the respective costs claims submitted by the other Party.
37.
On 13 January 2005 the Respondent confirmed receipt of Procedural Order No. 7 and stated:

"Please note our clients' objection to the Order as not in compliance with Article 15.2 of the UNCITRAL Arbitration Rules."

38.
With submission of 24 January 2005 both Parties submitted their statement for costs and on 31 February 2005 the Respondent submitted comments regarding the costs statement of the Claimant.

The Claimant did not submit any observations regarding the statement of the Respondent.

2. PROCEDURAL MATTERS

39.
There is no dispute between the Parties that this arbitration is conducted under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) of 1976 and that the place of arbitration is Paris, France (Agreement, Section 13.2) and that the Agreement is governed by and construed and enforced in accordance with the laws of the State of New York in the United States (Agreement, Section 13.1).
40.
The arbitral proceedings, based on the UNCITRAL Rules, were conducted in accordance with the Procedural Orders issued by the Arbitral Tribunal.
41.
With the exception of the question whether or not a hearing should.be held, neither Party raised any comments, observations or objections regarding the proceedings as conducted by the Arbitrators in accord with the procedural orders.
42.
Before receipt of Procedural Order No. 7 containing the decision of the Arbitral Tribunal not to hold a hearing and to close the proceedings, the Respondent objected to the request of the Claimant of 28 December 2004 stating that it was necessary to hear Mr. Thrasher at a hearing "to give information to the Tribunal on the facts" and furthermore that a hearing "is always necessary and usual to argue the case".
43.
The Respondent therefore "insists to have an oral hearing to present our arguments, to have a real debate" as part of its right to a fair trial (Respondent's letter of 7 January 2005) and after receipt of Procedural Order No. 7 the Respondent held that "the Order is not in compliance with Article 15.2 of the UNCITRAL Arbitration Rules" (Respondent's letter of 13 January 2005).
44.
Article 15(2) states:

"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.

45.
When it issued Procedural Order No. 4, the Tribunal envisaged that the Parties might want to have witnesses testify. Giving effect to the Parties’ due process right to be heard, Paragraph 3 of Procedural Order No. 4 invited the Parties to submit all documentary evidence they wished to rely on and to submit written witness statements regarding any persons they wished to testify in these proceedings.
46.
The Tribunal notes that the Respondent in its Points of Defence of 15 October 2004 offered no witnesses and did not annex any documents to its brief. In Claimant’s Answer to Respondent’s Points of Defence of 19 November 2004, the Claimant addressed Respondent’s Points of Defence and submitted a witness statement of Mr. Strang and supporting exhibits setting out, among other things, the details regarding the damages claimed by the Claimant.
47.
In accordance with the principles of due process, and as had been envisaged in Procedural Order No. 4, the Respondent then had the opportunity, in turn, to submit documentary evidence and witness statements rebutting the material which had been submitted by the Claimant.
48.
The Respondent declined that opportunity. In its reply of 20 December, the Respondent stated simply that it maintained the position set forth in its 15 October brief, and, in support of its force majeure defence, submitted only the already mentioned report regarding the evolution of the spot price for coal in the second half of 2003. In addition, the Respondent did not request a hearing. To the contrary, it waived any such right by expressly leaving the decision whether to hold a hearing to the discretion of the Tribunal. Specifically, the Respondent stated that it remained "at the Arbitrators' disposal for any oral hearing they might wish to call in this case".
49.
Only after receiving the Claimant’s letter of 28 December 2004 requesting that the case be decided on the documents and the submissions already made did the Respondent request that an oral hearing be held "in order to argue this case" and to hear Mr. Thrasher as a witness. While the record reflects that Mr. Thrasher was AMCI’s president and the signatory of the Agreement and Addendum, the Respondent did not attempt to excuse its failure to submit a witness statement in accord with the Tribunal’s order, and even in requesting that Mr. Thrasher be heard at a hearing, the Respondent provided no indication of the subject matter of his proposed testimony or its relevance to the issues to be decided in light of the record as it stood at the time.
50.
It is standard practice in international arbitration to require the submission of direct testimony in the form of witness statements served in advance of the hearing as part of the prehearing submissions. That practice inures to both the fairness and the efficiency of the proceeding by providing the parties full notice of the factual allegations advanced by the opposing party. This practice was adopted by the Arbitral Tribunal when it issued Procedural Order No. 4. The Respondent never objected to this Procedural Order. On the contrary, it specifically acknowledged that documents on which the Parties want to rely have to be submitted (see the Respondent's letter of 29 October 2004). The Respondent chose not to submit witness statement as under Procedural Order No. 4 it was entitled to do. Even when it requested that Mr. Thrasher nevertheless be heard the Respondent provided no excuse why it had not done so. in accordance with Procedural Order No. 4 and no explanation of the subject matter of the testimony.
51.
Article 15(2) does not provide a Party license to disregard the procedures by which an arbitral tribunal ensures that each party has a full opportunity to present its own case and address tire other party’s. Because the Respondent deliberately forewent the opportunity to submit testimony in accord with the Tribunal’s orders there was no reason to hold a hearing in order to hear witnesses.
52.
Likewise, while the Respondent also stated in general terms that it requested a hearing in order to ensure a "real debate" on the issues in the case, the Tribunal had set forth the procedures by which the issues would be fully addressed in its Procedural Order No. 4. The Respondent deliberately chose not to engage in that debate when, in its submission of 20 December 2004, it did not rebut any of the legal or factual arguments which had been made by the Claimant, nor produce, with one exception, any documents, and nor submit any direct testimony. Even when it requested a hearing, the Respondent did not identify any points of law or fact on which it believed it had not been fully heard, or any arguments it wished leave to make at that late date. There was therefore no reason to hold a hearing in order to hear oral argument.
53.
The Tribunal considers that there are three additional, related, but independently sufficient reasons to proceed without a hearing. First, for the reasons set forth below, we conclude that even if we accept all of the Respondent’s allegations as true, the Claimant would still have established its right to the relief it seeks and the Respondent would still have not established any of its defenses. Second, as we explain above, we read the Respondent’s statement in its 20 December submission as a waiver of any right it might otherwise have had to a hearing, and a decision to leave the question whether to hold a hearing to the Tribunal. Finally this Tribunal has an obligation to conduct this arbitration in a timely and cost-effective fashion. The Respondent has had ample opportunity to rebut the case of the Claimant and to present its defense, including witnesses. In view of the circumstances of this case and the behaviour of the Respondent, the Arbitral Tribunal considers the request of the Respondent for the first time formulated on 6 January 2005 to be abusive and to serve no other object than to further delay the resolution of this dispute and to unnecessarily increase its costs.
54.
The essence of due process and of the UNCITRAL Rules is a fair and equal opportunity to be heard. Procedural Order No. 4 provided that opportunity. The Arbitral Tribunal therefore sees no reason to reopen these proceedings and to hold a hearing and will therefore deal with the merits of this case.

3. THE MERITS

55.
The fact as outlined at the beginning of this Award are neither contestable nor contested.
56.
In its submission of 15 October the Respondent submits the following conclusions:

"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."

57.
In the following these four requests will be examined individually.

3.1. Force Majeure

58.
Second, even accepting as true the Respondent’s allegations concerning the events alleged to constitute Force Majeure (though no evidence has been provided to support those allegations), that defence would fail.
59.
First, according to Section 8.2.1:

"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."

60.
The Claimant states that it never received such a notice from the Respondent, and the Respondent does not even allege that it sent such a notice, let alone provide a copy of any such notice. Nor does the Respondent even address the Claimant’s argument on the dispositive effect of this failure.
61.
The defence of Force Majeure therefore has to be rejected as the contractual formal preconditions have not been met.
62.
Second, even accepting as true the Respondent’s allegations concerning the events alleged to constitute Force Majeure (though no evidence has been provided to support those allegations), that defence would fail.
63.
Section 8.1.3 of the Agreement states that AMCI "may not claim force majeure" unless all the sources of coal listed in Exhibit G to the Agreement have been disrupted. The allegations set forth in the Points of Defence do not address each of the sources listed in Exhibit G, and again, the Respondent does not even address the Claimant’s reliance on this dispositive ground.
64.
Finally, the Respondent’s allegations do not meet the definition in the Agreement of a Force Majeure Event as "any event outside the control of either Party which, despite the exercise of reasonable efforts, cannot be prevented, avoided or removed and which prevents the total or partial performance of the obligations".
65.
None of the factual events mentioned in the Respondent's 15 October 2004 submission rises to the level of events which cannot be avoided or removed. The mere shortage of supplies and the fact that they have become more expensive does not create a force majeure situation.
66.
We note, finally, that the simple fact that the Claimant could procure the amount of coal, the purchase of which had been agreed upon in the Addendum, albeit at a much higher price, shows that there existed no event outside of the control of the Respondent which would have prevented the performance of its obligation.
67.
The defence of force majeure is therefore denied.

3.2. Limitation of liability

68.
Article 15 expressly excludes any liability "for any special, indirect or consequential damages resulting from a failure to perform its obligation."
69.
The Respondent argues that the damages claimed by the Claimant, namely the difference between the price for supply by the Respondent as defined in the Addendum and the purchase of this coal at a higher price from other suppliers, constitute "consequential damages as they are clearly the consequence of the impossibility for AMCI to supply". As examined above regarding the defence of force majeure there was no "impossibility" for the Respondent to supply. The incremental cost of purchasing goods from a third-party that the contracting party was obligated to deliver at a lower cost does not constitute a consequential damage. Such "cover" damages are, to the contrary, a classic example of direct damage. Consequential damages are losses that do not flow directly and immediately from an injurious act, but that result indirectly from the act. Here the purchase at a higher price from a different source resulted directly from the unexcused breach by the Respondent to deliver the agreed upon quantities of coal.
70.
Furthermore, the Respondent does not bring forth any argument why Section 2.3 (d) Agreement does not apply. Section 2.3(d) clearly provides that if the Respondent fails to deliver up to the agreed upon delivery date, then the Claimant "shall have the right to purchase from a third party a quantity of Coal in any amount up to the amount of the quantity not delivered as scheduled" and, furthermore, that "the Supplier [the Respondent] shall pay to JLEC the incremental cost incurred by JLEC in procuring delivery over and above the costs which JLEC would have incurred in purchasing an equivalent amount of Coal from the Supplier". The Claimant seeks here exactly the incremental cost for having to purchase coal from a third-party source upon non-delivery by the Respondent as contractually envisaged in Section 2.3 (d) Agreement. This same sub-section further provides that the Claimant "shall use good faith efforts to minimize the cost of such procurement". The Respondent has in no way tried to argue that the Claimant has violated its obligation to minimize the costs of such procurement from third-party sources.
71.
The defence based on Article 15 is therefore denied.

3.3. The contractual sanction

72.
The Respondent argues that the only sanction for non-performance provided for by the Agreement is found in Section 9.3 which deals with the Performance Bond. According to the Respondent, the Performance Bond is intended to cover all damages, that it therefore excludes any other form of indemnity, and the Claimant therefore cannot claim more than the value of the bond of USD 1.5 million.
73.
The Claimant, in its Submission of 19 November 2004, states that under New York law, the law applicable to the Agreement, a contractual remedy will not be deemed to be a party's sole remedy "unless the parties expressly agreed that it would be the exclusive remedy" (paragraph 23). In paragraph 24, the Claimant argues that "there is no language in Section 9.3 providing that recovery under the Performance Bond is the sole remedy available to JLEC for AMCI's breach of the Agreement". In its Submission of 20 December, the Respondent does not attempt to rebut the
74.
In any event, the Tribunal agrees. There is nothing in either the Agreement or New York law that would permit the Tribunal to read AMCI's obligation to provide a bond in order to "secure [its] performance... of its payment obligations" as a limitation on its liability for the breach of those obligations.
75.
The defence that the payment of the Performance Bond is the only damage available to the Claimant in case of breach of the Agreement by the Respondent is therefore denied.

3.4. Alternative request, reimbursement of the Performance Bond

76.
In view of the fact that the Performance Bond was called on 10 August 2004 and the Claimant did receive the amount of USD 1.5 million, the initial request of the Claimant for interim relief became moot. Referring back to its Points of Defence to the Claimant’s Application for Interim Relief, however, the Respondent continues to maintain that it is entitled to reimbursement of the Performance Bond.
77.
The Respondent does not dispute that the Agreement required that a Performance Bond be provided as security for its payment obligations. The Respondent provided the bond, and the Claimant called it. The Tribunal has held that the obligations that the bond secured were breached, and the Claimant has deducted the amount received on the bond from its damage claim. In light of the breach and the deduction, there is no reason to order reimbursement of the amount of the Performance Bond.
78.
Though the Respondent complains that the payment was made irregularly, it has not established any breach of the Agreement by the Claimant that would prevent it from using the bond for the purpose for which the Agreement required that it be provided. In any event, it is not the duty of this Tribunal to examine whether or not this payment was made irregularly, as it has no jurisdiction over the bank which issued the Performance Bond and which made the payment. In view of the fact that the damage is higher than the Performance Bond of USD 1.5 million, that the Tribunal has rejected the contention that the amount of the Performance Bond constituted a cap on liability, and that the amount received has been credited to the Respondent and therefore deducted from the damage claim, the Tribunal is at a loss to understand this request and this Alternative request is also denied.

3.5. Amount of damages

79.
In its submission of 15 October 2004, the Respondent stated that, in support of its damage claim, the Claimant had only submitted three invoices with covering letters issued by the Claimant to the Respondent. It states that these invoices are "simply unilateral statements made by the Claimant for its own benefit but prove nothing".
80.
The various details requested by. the Respondent were supplied in Exhibits H, I and J to the Witness Statement of Steven F. Strang, submitted by the Claimant together with its Answer of 19 November 2004.
81.
The Tribunal notes that the Respondent, in its Submission of 20 December 2004, in no way tried to rebut the evidence which the Claimant had produced.
82.
The Tribunal furthermore notes that the three invoices which had been sent on April 5, May 3 and July 1, 2004 to the Respondent (Exhibits C, D and E to the Second Notice and Exhibits H, I and J to the Strang Statement) mention the elements on which the invoices are based. The Respondent did not produce any contemporaneous letters of the Respondent questioning the invoices in any way or asking for further information. Likewise, during the course of these proceedings, the Respondent did not ask for specific information or even attempt to rebut the evidence which was submitted.
83.
The Respondent also did not attempt to rebut the statement by the Claimant that the amounts claimed as damages only constitute incremental costs and not the full price which the Claimant paid to third parties for the three contractually agreed shipments which the Respondent had failed to fulfil. According to the documents submitted, the amounts claimed constitute the difference between the contractually agreed price for the failed shipments and the price the Claimant actually had to pay to third-party suppliers. They therefore constitute the incremental costs that the Agreement expressly provides may be recovered.
84.
In view of the fact that the damages claimed are incremental costs according to the documents submitted and in view of the fact that the Respondent did not attempt to rebut the allegations of the Claimant contained in its Submission of 19 November 2004 and the Witness Statement of Steven Strang submitted therewith, the Tribunal comes to the conclusion that it does not require the assistance of an expert to calculate the damages. It therefore assesses the damages at USD 8'599'483.60. After taking into account the amount of USD 1'500'000 paid under the Performance Bond, it holds the remaining balance of USD 7'099'483.60 to be owed by the Respondent to the Claimant.

4. INTEREST

85.
In paragraph 25 of its Second Notice the Claimant sought an award for interest. In its Submission of 24 January 2005, it referred to Section 5.3.3 of the Agreement which provides that interest shall be paid by a Party which fails to make any payment due according to the Agreement.
86.
In the Agreement, the interest rate per annum was agreed to be 2 percentage points above the Libor rate. According to the calculation contained in Exhibit C of its Submission of 24 January 2005, the interest rate calculated at Libor + 2 percentage points amounts, as of January 31, 2005, to USD 184'758.84.
87.
The Respondent in its comments of 31 January does not contest the figure or the calculation, but states that the amount has nothing to do with legal fees and must therefore be rejected.
88.
The Tribunal notes, and the Respondent has not contested, that the Claimant in its. various notices of arbitration and statements of claim always asked for interest on all amounts due. The Respondent never questioned an entitlement to interest on amounts which might be awarded to the Claimant. The rate of interest was clearly indicated in the Agreement. The Claimant had no earlier occasion to actually submit a computation of the interest, which is helpful but by no means essential, as the Tribunal could also just have awarded interest at the contractual rate. The actual computation gave the Respondent the possibility to verify and, if need be, object to the calculation, which it did not do. The Arbitral Tribunal therefore awards the amount of USD 184'758.84 as interest up through January 31, 2005 and interest at the contractual rate of Section 5.3.3 of the Agreement - that is, Libor + 2 percentage points - on the amount of USD 7'099'483.60 from 1 February 2005 until full payment.

5. COSTS

89.
According to Article 40(1) UNCITRAL Rules, the costs of arbitration shall in principle be borne by the unsuccessful party. This Award fully grants the claims put forward by the Claimant, and there is therefore no reason to deviate from the basic principle contained in Article 40(1) of the UNCITRAL Rules. The Arbitral Tribunal therefore finds that the Respondent is to bear the costs of this arbitration. As relevant here, the costs that Article 38 of the UNCITRAL Rules authorizes the tribunal to fix include

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.

90.
The Claimant in its Submission of 24 January 2005 lists an amount of USD 152'916.35 as legal fees and expenses. The Respondent in its comments of 31 January 2005 contends that the amount of legal fees claimed by counsel for the Claimant is wholly disappointments to the work involved.
91.
It is correct that the Respondent claimed legal fees of Euro 30’788.94 or approximately USD 40’000 and that therefore the Claimant claimed almost four times that amount. However, as noted repeatedly throughout this Award, the Submissions of the Respondent were usually very brief or, for all practical purposes, non-existent, whereas the Claimant did submit detailed briefs with the necessary evidence for its case. On the other hand, the Claimant did submit altogether three different requests for arbitration including requests for interim measures which became moot because of the fact that the Claimant itself called the Performance Bond. The Arbitral Tribunal therefore considers it reasonable to grant to the Claimant an amount of USD 100,000 as legal fees.
92.
The Claimant furthermore asks for an amount of USD 34'521.64 for "litigation consultant/expert fees and expenses". The Respondent submits that these fees must be rejected as they do not relate to lawyers' fees.
93.
Article 38 (e) does not restrict the costs to lawyer's fees but mentions the cost for all legal representation. If accountants or other specialists are needed for the legal representation, they are also an element which can be taken into account. However, the Claimant in no way explained what the services supported by the invoice of 20 December 2004 (Exhibit B to the 24 January 2005 Submission of the Claimant) concern. The Tribunal therefore has no indication whatsoever regarding the actual services which were provided, and it is therefore not in a position to have any opinion whether or not the amount of such costs is reasonable. This amount is therefore denied.
94.
The Arbitrators, taking into account that their fees are to be reasonable, and taking into account the amount in dispute, the complexity of the subject matter, the time spent by the Arbitrators and other relevant circumstances of the case, come to the conclusion that the total amount of the fees of the Arbitrators are fixed at Euro 60'000, the fees of Mr. Donovan amount to Euro 12'200, of Mr. Grondin to Euro 20'600 and of Mr. Briner, Chairman, to Euro 27'200, therefore a total of Euro 60'000.
95.
The Arbitrators had no travel expenses, and claim no other expenses.

AWARD

For the foregoing reasons, the Arbitral Tribunal awards as follows :

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.

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