The Partial Award contains the following dispositive section (dispositif), reflecting the findings and determinations made by the Tribunal based on the evidence and argument presented to the Tribunal over the course of the proceedings:
A. Claimant is entitled to a declaration that Respondent committed a breach of its obligations under Article 4(1) of the Treaty on account of its expropriation of Claimant's shareholdings in FM Bank PBP through restrictions taking the form of a suspension of its voting rights and the compulsory sale of shares.
B. Claimant is entitled to compensation of losses due to Respondent's expropriation of Claimant's shareholdings in FM Bank PBP through restrictions taking the form of a suspension of its voting rights and the compulsory sale of shares. The amount of compensation will be determined on the basis of the specific values assigned in this Partial Award to the factors upon which valuation of the FM Bank PBP and Claimant's losses depend under the methodology prescribed in this Partial Award. Computation of the value of FM Bank PBP and Claimant’s losses shall be performed jointly by the Experts appointed by the Parties in this case and in accordance with the provisions of Procedural Order no. 17 dated 24 June 2017. These amounts shall be included in the Final Award issued in this case.
C. Claimant is entitled to post-Award interest on the amount of liability to be determined in the Final Award from the date of that Award until its full satisfaction at the rate of 7.0 % computed on a simple basis.
D. The allocation of responsibility for costs and fees (including attorneys' fees) will be determined in the Final Award issued in this case.
E. Neither Party is entitled at this time to any additional relief.
IV. ADDITIONAL HISTORY OF THE DISPUTE
Based upon the Experts' several reports and the evidence produced with them, their examination at the hearing, as well as Counsel's submissions, the Tribunal made a determination as to the most accurate formula and valuation date for establishing asset value and damages, on the basis of which the Experts adopted an Agreed Financial Model.3 The Experts then submitted additional reports specifically on those bases. As indicated in the Partial Award and in the accompanying Procedural Order no. 17, the Tribunal undertook, again based primarily on the Experts' reports and examination, to assign a value to every relevant factor needed to perform a calculation of asset value and damages. (The Experts had furnished the Tribunal not only an Agreed Financial Model, but also an agreed list of relevant factors, accompanied by their respective analyses of each.) Those values are set out, expressly and in full, with reasons, in the Partial Award (paras. 547-642). However, the Tribunal considered it useful, in the interest of mathematical accuracy, to have the Experts themselves jointly perform the actual calculation based on the values decided upon for each factor by the Tribunal. The Experts, having been invited to seek clarification or supplementation of information if needed, subsequently jointly requested the Tribunal to supply a figure for an additional factor - namely, a tier-1 capital requirement percentage - that they considered necessary to include in their calculation. Based on additional analyses by the Experts, the Tribunal issued Procedural Order no. 20, dated 8 August 2017, determining that percentage. With this supplementary datum in hand, the Experts were able to perform the calculation of damages and arrive at an agreed-upon damages figure which they supplied to Counsel on both sides and which Counsel then transmitted to the Tribunal in the form of a "Report on the Calculation of Damages Arising from the Partial Award of 28 June 2017," dated 11 August 2017.
The Agreed Financial Model is described by Respondent's Expert, Mr. Caldwell, as follows:
[The Agreed Financial Model] takes projected net profits for 2014 to 2017 from the January 2014 business plan (either the basic or the investor version) and makes a series of adjustments to arrive at a projection of net profits, including those for 2018. The most significant of these adjustments relate to interest rates and the Warsaw Receivable. This projection is then used to calculate equity cash flows (consisting of capital injections and IPO proceeds) which are discounted at a cost of equity to arrive at a value of the Claimant's equity at 30 April 2015. The alleged damages are then calculated by deducting the value received by the Claimant in the sale to AnaCap and making certain other adjustments. 4th Caldwell Rpt., paras. 3.1.2-3.1.3
On the express understanding that Claimant had not sought pre-Award interest, the Tribunal did not address that matter or render any decision on it. It so stated in the Partial Award as well as in Procedural Order no. 24 dated 29 August 2017. In that Procedural Order, the Tribunal, upon hearing the Parties, determined that Claimant had in fact sought pre-Award interest, that the Tribunal had not considered or determined the matter in the Partial Award, that the Tribunal had authority under Article 42 of the SCC Rules4 to entertain Claimant's application for an Additional Award of pre-Award interest, and that entertainment of that request was not barred by the doctrine of res judicata. Claimant's request for pre-Award interest was thus held to be a proper subject of an Additional Award.
Article 42 provides:
Within 30 days of receiving an award, a party may, upon notice to the other party, request the Arbitral Tribunal to make an additional award on claims presented in the arbitration but not determined in the award. If the Arbitral Tribunal considers the request justified, it shall make the additional award within 60 days of receipt of the request. When deemed necessary, the Board may extend this 60 day time limit.
In its own letter of 6 September 2017, Respondent dwelled principally on the question of the propriety of the Tribunal's entertaining Claimant's request for pre-Award interest at this time, a matter it had already raised in its letter of 4 August 2017, rather than on the merits of the request. In this regard, Respondent advanced four arguments:
• First, Respondent asserts that Claimant sought pre-Award interest for the first time in its post-hearing brief, and that Respondent did not therefore have an adequate opportunity to respond.
• Second, Respondent observes that, in its Procedural Order no. 19, dated 25 July 2017, the Tribunal stated its understanding that Claimant did not request pre-Award interest.
• Third, Respondent asserts that Claimant in any event failed to explain or substantiate its entitlement to pre-Award interest, either in its 28 July 2017 request for an Additional Award or in its communication of 6 September 2017, and that Respondent could not meaningfully reply.
• Finally, Respondent claims that by ordering simultaneous submissions on 6 September 2017, the Tribunal denied Respondent an opportunity to rebut Claimant's arguments.
Before addressing Claimant's request for pre-Award interest on the merits, the Tribunal responds to Respondent's assertion that even entertaining that request was improper. The Tribunal has already fully explained in Procedural Order no. 24 why Claimant's request was required to be entertained. However, since Respondent in its 6 September 2017 submission emphatically reiterates its objections, the Tribunal addresses them again here:
• First, Respondent is mistaken in suggesting that Claimant sought pre-Award interest for the first time in its post-hearing brief and that Respondent did not have an adequate opportunity to respond. As established in Claimant's request of 28 July 2017, even though it did not initially seek pre-Award interest in this Arbitration in express terms, Claimant made allowance for the preAward period by initially using the date of the Award as the valuation date. However, as Claimant points out, upon the Tribunal's subsequent decision to treat 30 April 2015 rather than the date of the Award as the valuation date, consideration was properly to be given to a grant of pre-Award interest for the period between 1 May 2015 and the date of this Award. Claimant in fact requested pre-Award interest at several stages of the proceeding and the Experts accordingly expressly addressed the question of pre-Award interest, as if it were in principle recoverable. This is reflected in items 18 and 19 in the Agreed Financial Model on the basis of which the Experts conducted their analyses. It is therefore not true that a request for pre-Award interest was made for the first time in Claimant's post-hearing brief.
• Second, while Procedural Order no. 19 expressed the Tribunal's then-understanding that Claimant had not requested pre-Award interest, that understanding - as the Tribunal explained in Procedural Order no. 24 - was mistaken, and - again as explained in Procedural Order no. 24 - the Tribunal had the authority, indeed the obligation, to address it. It is the very purpose of Article 48 of the SCC Rules to allow an arbitral tribunal to rule on claims that, by mistake, oversight or for other reasons, it had not decided.
• Third, Respondent is mistaken in suggesting that Claimant failed to explain or substantiate its entitlement to pre-Award interest. Claimant more than adequately explained and sought to justify its request in both its July 28, 2017 request for an Additional Award and in its communication of 6 September 2017.
• Finally, Respondent was not prejudiced by the Tribunal's inviting simultaneous submissions on 6 September 2017. On 29 July 2017, the day immediately following Claimant's request for pre-Award interest, the Tribunal expressly invited Respondent to comment, setting no deadline for its doing so. Respondent then specifically requested a deadline, which the Tribunal set at 4 August 2017 and to which Respondent expressed no objection. However, even in fixing that date, the Tribunal expressly stated that it would entertain a request by Respondent for an extension if needed - a request that Respondent did not make. Respondent thus had an opportunity from 29 July 2017 forward to comment specifically on Claimant's argumentation in favor of an Additional Award granting pre-Award interest and gave no indication whatsoever that it lacked a fair opportunity to do so. Moreover, though not asked by Respondent to do so, the Tribunal, as noted, thereafter gave Respondent through Procedural Order no. 24 an additional opportunity on 6 September 2017 to argue against the grant of pre-Award interest, and yet a further opportunity to do so on 12 September 2017. In sum, Respondent had ample opportunity both to make known its views on Claimant's entitlement to pre-Award interest and to rebut Claimant's views thereon.
On 13 September 2017, in accordance with Article 43 (2) of SCC Rules, the Tribunal requested that the SCC Board determine the costs of the Arbitration. By decision dated 14 September 2017, the SCC Board fixed the costs of this Arbitration as follows:
George A. Bermann
fee EUR 135,500.00 plus any VAT
expenses USD 13,032.78
expenses EUR 632.60 plus any VAT
expenses GBP 28.00
per diem allowance EUR 6,000.00
Julian D.M. Lew
fee EUR 81,000.00 plus any VAT
expenses GDP 157.31
Michael E. Schneider
fee EUR 81,000.00 plus any VAT
expenses CHF 3,495.00
per diem allowance EUR 6,000.00
Stockholm Chamber of Commerce
administrative fee EUR 60 000.00 plus any VAT
The costs of the arbitration are to be paid from the Advance on Costs paid to the SCC by the Parties, in equal parts, at the outset of the Arbitration.
More specifically, the Arbitral Tribunal is entitled to order one of the Parties to reimburse the other party for all or part of the reasonable legal costs and other expenses incurred in connection with the Arbitration. Article 44 of the SCC Rules provides:
Unless otherwise agreed by the parties, the Arbitral Tribunal may in the final award upon 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 and other relevant circumstances.
In its Statement of that date, Claimant reiterated its request that all of its costs, including attorneys' fees, be borne by the Respondent, due to a variety of considerations, including but not limited to a variety of ways in which Respondent allegedly unjustifiably increased the costs and delay of the proceedings. Claimant reported its costs as follows:
|Experts' fees and expenses||1,427,745.43||35,942.50||7,842.78|
|Advance on Costs||211,500|
|[total other costs]||260,608.90||48,864.87||277,663.77|
In its Statement, Respondent reiterated its request that all of its costs, including attorneys' fees, be borne by the Claimant, due to the alleged lack of merit in Claimant's underlying claim and certain elements of cost and delay that Respondent attributes to Claimant. As for Respondent's costs, it reports them as follows:
|Legal fees and expenses||1,915,978.12|
|Experts' fees and expenses||4,990,884.98|
|Advance on costs||897,454.20|
|IDRC (hearing venue) fee||96,980.02|
|Respondent's representatives' hearing expenses||54,806.86|
|Interpretation at hearing||21,315.87|
|Printing of joint bundle||87,572.77|
|[total other costs]||1,353,112.19|
In addition to the relief granted in the Partial Award in this case (see Partial Award, paras. 649-650), the Tribunal thus grants the following additional relief.
A. The total amount of damages to which Claimant is entitled in this case, not finally quantified in the Partial Award, is hereby fixed at PLN 653,639,384.
B. Claimant's request for pre-Award interest in this case is granted for the period from 1 May 2015 to 31 December 2015 at the rate of 8%, and for the period from 1 January 2016 to 28 September 2017 at the rate of 5.0%, in both cases computed on a single rather than compound basis.
C. Claimant and Respondent shall bear in equal portions the total cost of the Arbitration, as established in paragraph 53, supra. These costs are to be paid from the Advance on Costs that the Parties deposited with the SCC in equal parts at the outset of the Arbitration.
D. Respondent shall reimburse Claimant the sum of Euros 3,500,000 of the costs and fees (including attorneys' fees) incurred by Claimant in this Arbitration.
E. Neither Party is entitled to any additional relief.