WHEREFORE, for the reasons set forth above, Offshore is ORDERED to reimburse Ecopetrol for the payments that Savia has made to the Peruvian tax authorities for VAT taxes asserted to be due for the tax years 2002 through 2007. This reimbursement shall be made on or before the 30th calendar day after the issuance of this Interim Award.
This Interim Award does not in any way resolve the underlying merits of the dispute among the parties, including, without limitation, whether Offshore would ultimately be entitled to, among other relief, the return of the amounts paid pursuant to this Order by reason of the Respondents’ breach of the SPA, or otherwise.
(a) Any dispute, controversy or Action arising out of or relating to this Agreement [the SPA], or the breach thereof... shall be determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules.
Section 8.6 Escrow: Right of Set-off. By written notice to Seller specifying in reasonable detail the basis for set-off, Purchaser may assert a claim to set off any amount to which it is or if Seller has objected has been determined to be entitled under Article 7 and this Article 8 against the Escrow Amount, and such set-off amount may be disbursed to Purchaser in accordance with the terms of this Agreement and the Indemnification Escrow Agreement...
What this means is that in the SPA the parties specifically provided for a remedy of a breach of Section 7.4 and specifically agreed that if there was a dispute, the money that would remedy the dispute would not be released from the escrow until "final determination of such dispute." [footnote omitted]. This bars the escrow funds from being used to satisfy any claim for preliminary monetary relief, which by definition is not a final determination..."
Claimant’s Opp., para. 73.
1. DECLARES that the Tribunal has jurisdiction to the extent necessary to ensure compliance with its Interim Award, including the jurisdiction to interpret SPA Article 8 as it relates to the use of escrowed funds to satisfy the Interim Award.
2. DECLARES that the Seller’s tender of performance in purported compliance with the Interim Award is ineffective.
3. DEFERS until the final hearings in this arbitration any decision on whether damages, interest and costs, if any, allegedly caused by the Seller’s actions, should be awarded to Respondent.
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