Pratt & Whitney v. Nordam Group

Pursuant to Article 33 of the 2017 ICC Rules of Arbitration and based on the May 3, 2018 stipulation submitted to the Tribunal by Claimant, Pratt & Whitney Canada Corp., and Respondent, The NORDAM Group, Inc., the Tribunal hereby enters this Final Award by Consent.

The names and the addresses of the parties and their respective counsel are as follows:

1.1. Claimant and Counsel

(a) Claimant - Pratt & Whitney Canada Corp. ("P&WC") 1000 Boulevard Marie-Victorin, Longueuil, QC J4G 1Al, Canada, a corporation organized under the laws of Canada.

(b) Claimant’s counsel -

Mitchell R. Harris
Matthew J. Shiroma
Day Pitney LLP
242 Trumbull Street
Hartford, Connecticut, USA 06103
mrharris@daypitney.com mshiroma@day pitney.com Phone (860) 275-0100 Fax (860) 881-2502

Steven M. Greenspan
Vice President
Chief Litigation Counsel
United Technologies Corporation
Mail Stop 10FS2
10 Farm Springs Road
Farmington, Connecticut, USA 06032 steven.greenspan@utc.com Phone 860-728-7811
Fax 860-660-4022

1.2 Respondent and Counsel

(a) Respondent - The NORDAM Group, Inc. ("NORDAM"), 6910 Whirlpool Drive, Tulsa, OK 74117, USA, a corporation organized under the laws of the State of Del aware,

(b) Respondent’s counsel -

Thomas C. Bell
Ericka Englert Paul Swanson tom.bell@dsglaw.com ericka.englert@dsglaw.com paul.swanson@dgslaw.com Davis Graham & Stubbs LLP 1550 17th Street, Suite 500 Denver, Colorado, USA 80202 Phone (303) 892-9400 Fax:(303) 893-1379

Albert J. Givray
General Counsel
The NORDAM Group, Inc.
6910 North Whirlpool Drive,
Tulsa, OK 74117
al.givray@dgslaw.com
Phone: (918) 401-5129
Fax: (918) 401-5535

(Mr. Givray is also a partner at Davis Graham & Stubbs LLP)

The Tribunal:

2.1. On March 22, 2018, The Honorable Abraham D. Sofaer was appointed as the President of the Arbitral Tribunal. Judge Sofaer’s contact information is:

The Honorable Abraham D. Sofaer
George P. Shultz Senior Fellow
The Hoover Institution
Stanford University
Stanford, California, USA 94305-6010
Tel.: 1 (650)725-3763 email: asofaer@stanford.edu

2.2. The Honorable John L. Wagner was appointed by NORDAM as an arbitrator. Judge Wagner’s contact information is:

The Honorable John L. Wagner
Judicate West
1851 East First St.
Suite 1600
Santa Ana, California, USA 92705
Tel.: 1 (714) 834-1340
email: jwagner@wagneradr.com

2.2.1. P&WC did not object to Judge Wagner’s appointment.

2.3. Mr. Stephen E. Smith was appointed by P&WC as an arbitrator. Mr.

Smith’s contact information is:

Stephen E. Smith, Esq.
Steve Smith ADR LLC
310 Garfield Street
Denver, Colorado, USA 80206
Tel.: 1(720)231-8893
email: steve@stevesmithadr.com

2.3.1. NORDAM did not object to Mr. Smith’s appointment.

This arbitration was instituted under two arbitration agreements between P&WC and NORDAM: (a) the arbitration agreement in the parties’ Purchase Agreement for Nacelle Hardware Products dated October 18, 2010 between P&WC and NORDAM (as amended, the "Contract"); and (b) the arbitration agreement in the parties’ Settlement Agreement made as of January 4, 2017 (the "Settlement Agreement").

3.1. The Contract’s arbitration agreement provides:

35.3 Dispute resolution

35.3.1 In the event of any dispute, controversy or claim between the Parties arising out of or in connection with this Agreement ("Dispute"), including without limitation the breach, termination or invalidity thereof, either Party may serve formal written notice on the other Party that a Dispute has arisen ("Notice of Dispute").

35.3.2 Upon service of a Notice of Dispute, such Dispute shall immediately (but in no event more than 20 days later) be referred to the respective senior management (chief executive officers or executive vice-presidents, or their equivalent) of P&WC and Supplier who shall attempt, for a period of twenty (20) days (or such longer period as may be agreed in writing between the Parties), to resolve such Dispute.

35.3.3 In the event that the respective executives of P&WC and Supplier are unable to resolve such Dispute within the time period referred to in Article 35.3.2, the Dispute shall, at the request of either Party, be referred to and, in such case, shall be finally resolved by binding arbitration in accordance with the remaining provisions of this Article.

35.3.4 Any Dispute referred to arbitration in conformity with Article 35.3.3 shall be finally resolved through binding arbitration under the International Chamber of Commerce Rules of Arbitration and its applicable procedures, all as in effect on the date of submittal thereto under Article 35.3.4.1, which rules and procedures are deemed to be incorporated by reference into this Article 35.3.4 (but in the event of conflict between any such rule or any such procedure and any provision of this Agreement (understood to include its Appendices), this Agreement shall take precedence over each such rule and procedure), and:

35.3.4.1 Either P&WC or Supplier may cause an arbitration proceeding to commence by filing a demand for arbitration with the International Chamber of Commerce, and the date of such filing shall be the date of the commencement of the arbitration.

35.3.4.2 The arbitration shall be conducted before a tribunal of three (3) arbitrators, one of which shall be selected by P&WC, one of which shall be selected by Supplier, and the third of which shall be selected by the two (2) arbitrators so selected. P&WC and Supplier shall each designate an arbitrator within thirty days (30) days after the date the demand for arbitration is made and the third arbitrator, who shall have knowledge and experience in the application of New York law, shall be selected within forty (40) days after the date the second arbitrator is designated. If P&WC or Supplier fails to designate an arbitrator within the time specified or the Party-designated arbitrators fail to agree upon the third arbitrator within the time specified, such arbitrator shall be selected in accordance with the rules of the International Chamber of Commerce. Following designation, a Party and the arbitrator it designated shall not communicate about any subject relating to the Dispute except that the Party and its designated arbitrator may communicate concerning the identification and selection of the third arbitrator. Upon selection of the third arbitrator, all arbitrators shall serve in an impartial and neutral capacity. Each Party’s designated arbitrator shall be knowledgeable of the aerospace industry. No arbitrator shall have a direct or indirect personal or financial interest in the result of the arbitration.

35.3.4.3 Within twenty (20) days after the date the 3rd arbitrator is selected, the arbitral tribunal shall issue a scheduling order specifying: (i) a deadline (which shall not be more than thirty (30) days from the date of the scheduling order) for the Parties to simultaneously submit respective statements of position to the arbitral tribunal and to each other, each of which statements shall not exceed twenty (20) pages in length; (ii) a deadline (which shall not be more than twenty (20) days after the deadline in the immediately preceding subclause (i)) for the Parties to submit simultaneous replies to the initial statements of position, each such reply not to exceed ten (10) pages; and (iii) a date for a formal arbitration hearing to be held before the arbitral tribunal, such hearing to be held no later than thirty (30) days after the deadline in the immediately preceding subclause (ii), which hearing may last no more than four (4) days, and to be conducted according to the rules of evidence then applicable to evidentiary hearings conducted in the federal trial courts situated within the State of New York. Each Party shall have up to two days to present its case to the arbitral tribunal and up to two days to oppose the other Party’s case, in each instance through: (i) oral presentation; (ii) documentary and real evidence; and/or (iii) examination and cross-examination of witnesses. At the conclusion of such hearing, the Dispute shall be deemed submitted to the arbitral tribunal for decision, and the arbitral tribunal shall issue its award no later than forty-five (45) days after such submission.

35.3.4.4 The arbitral tribunal shall issue a reasoned award, which shall specify the arbitral tribunal’s findings of fact, legal conclusions and the reasons for such award, with reference to and reliance on relevant legal and factual authority as provided in Clause 35.3.4.5 below. The award shall be final, nonappealable, and binding between the Parties and shall be enforceable by any court having jurisdiction over the Party against whom enforcement is sought. The arbitral tribunal shall have no authority to, and may not, award any damages not measured on the prevailing Party’s actual damages, and in any event may not award any punitive, exemplary, or consequential damages, but, without limiting the right of either Party to seek before any competent court any of the remedies provided for in Article 35.3.5, may grant an injunction, specific performance, or other form of equitable relief where the arbitration tribunal deems appropriate, The Parties agree to abide by and perform any award rendered by the arbitration panel.

35.3.4.5 The arbitration hearing shall be held in Chicago, Illinois. The arbitral tribunal shall, in all respects, follow the substantive law of the State of New York. Any provisions of New York law: (i) requiring the application of laws of another jurisdiction; or (ii) regarding choice of law, shall not apply. Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods, the parties exclude the application of the provisions of said convention to all transactions relating to this Agreement.

35.3.4.6 The language of the arbitration proceedings shall be in English.

35.3.4.7 The arbitral tribunal may hold such pre-hearing conferences or adopt such other procedures, including reasonable discovery, as the Parties may agree in writing or as the arbitral tribunal may order, so long as such conferences and discovery do not alter the deadlines and limitations specified in Article 35.3.4.3 above. The right to reasonable examination of opposing witnesses in oral hearing wifi not be denied, and each Party shall have the right to call lay and expert witnesses as each Party wishes, all subject to the deadlines and limitations of Article 35.3.4.3. The arbitral tribunal shall not be empowered to assess costs and expenses (including reasonable attorneys’ fees and arbitrators’ fees) to the prevailing party in the arbitration. All fees and expenses of the arbitral tribunal shall be shared equally by the Parties and each Party shall bear its own costs of counsel, experts, witnesses and preparation, and presentation of proofs.

35.3.4.8 All confidential, proprietary or trade secret information disclosed during the dispute resolution process provided for in this Article 35.3 shall remain confidential. Neither Party shall disclose the existence or content of any dispute or claim or the results of any dispute resolution process to third parties other than outside tax, accounting, and legal consultants and any expert witnesses, except with the prior written consent of the other Party and except through legal process as permitted by applicable law.

35.3.5 The procedures specified in this Article 35.3 shall be the sole and exclusive procedures for the resolution of disputes between the Parties arising out of or relating to this Agreement, the breach, termination, or validity thereof, or the transactions contemplated hereby; provided, however, that (1) any Party may without prejudice and in its sole discretion (A) seek injunctive or other equitable remedies in order to prevent breaches of this Agreement, enforce specifically this Agreement and the terms and provisions hereof, maintain the status quo, or aid the jurisdiction of the arbitral tribunal until an arbitration award is rendered or the controversy is otherwise resolved, or (B) obtain an order from any court that renders an injunction, a compulsion of specific performance, and/or any other equitable relief to which such Party is entitled, and (2) the provisions of this Article 35.3 shall not apply to claims for violation of any confidentiality agreement, or any right in any Intellectual Property. Except as otherwise expressly provided in this Agreement, no action may be brought in any court of law.

35.3.6 In the event of any Dispute hereunder, the Parties agree to continue performing their obligations under this Agreement in order to avoid, among other things, disruption in delivery of Products. During the pendency of each Dispute:

A) Supplier shall not withhold deliveries on account of any actual or alleged breach of the Agreement by P&WC, except that, provided Supplier is not in breach of any of its obligations under this Agreement, as long as P&WC is delinquent in the payment to Supplier under this Agreement of one or more invoices (each of which invoice is delinquent by more than 30 days from its due date) having an aggregate invoice amount of $500,000 or more (it being understood that, for the purpose of calculating said threshold of $500,000, any line item of less than $50,000 under any such invoice shall be excluded):

(i) Upon request by Supplier in writing, the respective senior management (vice-presidents or their equivalent) of P&WC and Supplier shall attempt, for a period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

(ii) In the event that the respective vice-presidents (or their equivalent) are unable to resolve such delinquency within the time period referred to in the immediately preceding Article 35.3.6(i), then, upon request by Supplier in writing, the CEOs (or their equivalent) of P&WC and Supplier shall attempt, for an additional period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

iii) In the event that the respective CEOs (or their equivalent) are unable to resolve such delinquency within the time period referred to in immediately preceding Article 35.3.6(ii), then Supplier may withhold deliveries of Products for so long as the delinquency in the payment of such amount continues,

B) P&WC shall not withhold any amount owed by P&WC to Supplier under this Agreement, except that as long as Supplier is delinquent in the payment to P&WC under this Agreement of one or more "liquidated damage financial compensation" or "financial remedy" under this Agreement (each a "Financial Remedy Amount"):

(x) Upon request by P&WC in writing, the respective senior management (vice-residents or their equivalent) of P&WC and Supplier shall attempt, for a period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

(y) In the event that the respective vice-presidents (or their equivalent) are unable to resolve such delinquency within the time period referred to in the immediately preceding Article 35.3.6(x), then, upon request by P&WC in writing, the CEOs (or their equivalent) of P&WC and Supplier shall attempt, for an additional period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

(z) In the event that the respective CEOs (or their equivalent) are unable to resolve such delinquency within the time period referred to in the immediately preceding Article 35.3.6(y), then P&WC may withhold any amounts as may then or thereafter be owing from P&WC to Supplier under this Agreement for so long as the delinquency of Supplier continues. The provisions of this Article 35.3.6 are intended to operate in parallel with any arbitration that may be initiated or then be pending concerning any Dispute.

3.2. The Settlement Agreement’s arbitration agreement provides:

13.1 In the event of any dispute, controversy or claim between the Parties arising out of or in connection with this Settlement Agreement ("Dispute"), including without limitation the breach, termination or invalidity thereof, either Party may serve formal written notice on the other Party that a Dispute has arisen ("Notice of Dispute").

13.2 Upon service of a Notice of Dispute, such Dispute shall immediately (but in no event more than 20 days later) be referred to the respective senior management (chief executive officers or executive vice-presidents, or their equivalent) of P&WC and NORDAM who shall attempt, for a period of twenty (20) days (or such longer period as may be agreed in writing between the Parties), to resolve such Dispute.

13.3 In the event that the respective executives of P&WC and NORDAM are unable to resolve such Dispute within the time period referred to in Article 13.2, the Dispute shall, at the request of either Party, be referred to and, in such case, shall be finally resolved by binding arbitration in accordance with the remaining provisions of this Article.

13.4 Any Dispute referred to arbitration in conformity with Article 13,3 shall be finally resolved through binding arbitration under the International Chamber of Commerce Rules of Arbitration and its applicable procedures, all as in effect on the date of submittal thereto under Article 13.4.1, which rules and procedures are deemed to be incorporated by reference into this Article 13.4 (but in the event of conflict between any such rule or any such procedure and any provision of this Settlement Agreement (understood to include its Appendices), this Settlement Agreement shall take precedence over each such rule and procedure), and:

13.4.1 Either P&WC or NORDAM may cause an arbitration proceeding to commence by filing a demand for arbitration with the International Chamber of Commerce, and the date of such filing shall be the date of the commencement of the arbitration.

13.4.2 The arbitration shall be conducted before a tribunal of three (3) arbitrators, one of which shall be selected by P&WC, one of which shall be selected by NORDAM, and the third of which shall be selected by the two (2) arbitrators so selected. P&WC and NORDAM shall each designate an arbitrator within thirty days (30) days after the date the demand for arbitration is made and the third arbitrator, who shall have knowledge and experience in the application of New York law, shall be selected within forty (40) days after the date the second arbitrator is designated. If P&WC or NORDAM fails to designate an arbitrator within the time specified or the Party-designated arbitrators fail to agree upon the third arbitrator within the time specified, such arbitrator shall be selected in accordance with the rules of the International Chamber of Commerce. Following designation, a Party and the arbitrator it designated shall not communicate about any subject relating to the Dispute except that the Party and its designated arbitrator may communicate concerning the identification and selection of the third arbitrator. Upon selection of the third arbitrator, all arbitrators shall serve in an impartial and neutral capacity. Each Party’s designated arbitrator shall be knowledgeable of the aerospace industry. No arbitrator shall have a direct or indirect personal or financial interest in the result of the arbitration.

13.4.3 Within twenty (20) days after the date the 3rd arbitrator is selected, the arbitral tribunal shall issue a scheduling order specifying: (i) a deadline (which shall not be more than thirty (30) days from the date of the scheduling order) for the Parties to simultaneously submit respective statements of position to the arbitral tribunal and to each other, each of which statements shall not exceed twenty (20) pages in length; (ii) a deadline (which shall not be more than twenty (20) days after the deadline in the immediately preceding subclause (i)) for the Parties to submit simultaneous replies to the initial statements of position, each such reply not to exceed ten (10) pages; and (iii) a date for a formal arbitration hearing to be held before the arbitral tribunal, such hearing to be held no later than thirty (30) days after the deadline in the immediately preceding subclause (ii), which hearing may last no more than four (4) days, and to be conducted according to the rules of evidence then applicable to evidentiary hearings conducted in the federal trial courts situated within the State of New York, Each Party shall have up to two days to present its case to the arbitral tribunal and up to two days to oppose the other Party’s case, in each instance through: (i) oral presentation; (ii) documentary and real evidence; and/or (iii) examination and cross-examination of witnesses. At the conclusion of such hearing, the Dispute shall be deemed submitted to the arbitral tribunal for decision, and the arbitral tribunal shall issue its award no later than forty-five (45) days after such submission.

13.4.4 The arbitral tribunal shall issue a reasoned award, which shall specify the arbitral tribunal’s findings of fact, legal conclusions and the reasons for such award, with reference to and reliance on relevant legal and factual authority as provided in Article 13.4.5 below. The award shall be final, non-appealable, and binding between the Parties and shall be enforceable by any court having jurisdiction over the Party against whom enforcement is sought. The arbitral tribunal shall have no authority to, and may not, award any damages not measured on the prevailing Party’s actual damages, and in any event may not award any punitive, exemplary, or consequential damages, but, without limiting the right of either Party to seek before any competent court any of the remedies provided for in Article 13.5, may grant an injunction, specific performance, or other form of equitable relief where the arbitration tribunal deems appropriate. The Parties agree to abide by and perform any award rendered by the arbitration panel.

13.4.5 The arbitration hearing shall be held in Chicago, Illinois. The arbitral tribunal shall, in all respects, follow the substantive law of the State of New York. Any provisions of New York law: (i) requiring the application of laws of another jurisdiction; or (ii) regarding choice of law, shall not apply. Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods, the parties exclude the application of the provisions of said convention to all transactions relating to this Settlement Agreement.

13.4.6 The language of the arbitration proceedings shall be in English.

13.4.7 The arbitral tribunal may hold such pre-hearing conferences or adopt such other procedures, including reasonable discovery, as the Parties may agree in writing or as the arbitral tribunal may order, so long as such conferences and discovery do not alter the deadlines and limitations specified in Article

13.4.3 above. The right to reasonable examination of opposing witnesses in oral hearing will not be denied, and each Party shall have the right to call lay and expert witnesses as each Party wishes, all subject to the deadlines and limitations of Article 13.4.3. The arbitral tribunal shall not be empowered to assess costs and expenses (including reasonable attorneys’ fees and arbitrators’ fees) to the prevailing party in the arbitration. All fees and expenses of the arbitral tribunal shall be shared equally by the Parties and each Party shall bear its own costs of counsel, experts, witnesses and preparation, and presentation of proofs.

13.4.8 All confidential, proprietary or trade secret information disclosed during the dispute resolution process provided for in this Article 13 shall remain confidential. Neither Party shall disclose the existence or content of any dispute or claim or the results of any dispute resolution process to third parties other than outside tax, accounting, and legal consultants and any expert witnesses, except with the prior written consent of the other Party and except through legal process as permitted by applicable law.

13.5 The procedures specified in this Article 13 shall be the sole and exclusive procedures for the resolution of disputes between the Parties arising out of or relating to this Settlement Agreement, the breach, termination, or validity thereof, or the transactions contemplated hereby; provided, however, that (1) any Party may without prejudice and in its sole discretion (A) seek injunctive or other equitable remedies in order to prevent breaches of this Settlement Agreement, enforce specifically this Settlement Agreement and the terms and provisions hereof, maintain the status quo, or aid the jurisdiction of the arbitral tribunal until an arbitration award is rendered or the controversy is otherwise resolved, or (B) obtain an order from any court that renders an injunction, a compulsion of specific performance, and/or any other equitable relief to which such Party is entitled, and (2) the provisions of this Article 13 shall not apply to claims for violation of any confidentiality agreement, or any right in any Intellectual Property. Except as otherwise expressly provided in this Settlement Agreement, no action may be brought in any court of law.

13.6 In the event of any Dispute hereunder, the Parties agree to continue performing their obligations under this Settlement Agreement in order to avoid, among other things, disruption in delivery of Products. During the pendency of each Dispute:

A) NORDAM shall not withhold deliveries under the Settlement Agreement on account of any actual or alleged breach of the Settlement Agreement by P&WC, except that, provided NORDAM is not in breach of any of its obligations under this Settlement Agreement, as long as P&WC is delinquent in the payment to NORDAM under this Settlement Agreement of one or more invoices (each of which invoice is delinquent by more than 30 days from its due date) having an aggregate invoice amount of $500,000 or more (it being understood that, for the purpose of calculating said threshold of $500,000, any line item of less than $50,000 under any such invoice shall be excluded):

(i) Upon request by NORDAM in writing, the respective senior management (vice-presidents or their equivalent) of P&WC and NORDAM shall attempt, for a period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

(ii) In the event that the respective vice-presidents (or their equivalent) are unable to resolve such delinquency within the time period referred to in the immediately preceding Article 13.6(i), then, upon request by NORDAM in writing, the CEOs (or their equivalent) of P&WC and NORDAM shall attempt, for an additional period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

(iii) In the event that the respective CEOs (or their equivalent) are unable to resolve such delinquency within the time period referred to in immediately preceding Article 13.6(ii), then NORDAM may withhold deliveries of Products under this Settlement Agreement for so long as the delinquency in the payment of such amount continues.

B) P&WC shall not withhold any amount owed by P&WC to NORDAM under this Settlement Agreement, except that as long as NORDAM is delinquent in the payment to P&WC under this Settlement Agreement of one or more "liquidated damage financial compensation" or "financial remedy" under this Settlement Agreement (each a "Financial Remedy Amount"):

(x) Upon request by P&WC in writing, the respective senior management (vice-presidents or their equivalent) of P&WC and NORDAM shall attempt, for a period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

(y) In the event that the respective vice-presidents (or their equivalent) are unable to resolve such delinquency within the time period referred to in the immediately preceding Article 13.6(x), then, upon request by P&WC in writing, the CEOs (or their equivalent) of P&WC and NORDAM shall attempt, for an additional period of fifteen (15) days (or such longer period as may be agreed in writing between the Parties), to resolve the delinquency.

(z) In the event that the respective CEOs (or their equivalent) are unable to resolve such delinquency within the time period referred to in the immediately preceding Article 13.6(y), then P&WC may withhold any amounts as may then or thereafter be owing from P&WC to NORDAM under this Settlement Agreement for so long as the delinquency of NORDAM continues.

The provisions of this Article 13.6 are intended to operate in parallel with any arbitration that may be initiated or then be pending concerning any Dispute.

The procedural steps in this arbitration have been as follows:

4.1. On December 6, 2017, P&WC’s transmitted its Request for Arbitration to the ICC.

4.2. On January 31, 2018, NORDAM filed its Answer to Request for Arbitration, Affirmative Defenses and Counterclaims.

4.3. On March 7, 2018, P&WC filed its Answer and Affirmative Defenses to NORDAM’s Counterclaims.

4.4 On April 10, 2018, the Tribunal conducted a Case Management Conference pursuant to Article 24 of the ICC Rules.

4.5. On April 13, 2018, the Tribunal issued the Procedural Timetable.

4.6. On April 27, 2018, the Tribunal issued the Terms of Reference.

4.7. Per the parties’ arbitration agreements, the Tribunal consists of three arbitrators.

4.8. Per the parties arbitration agreements, the place of arbitration is Chicago, Illinois. The parties agreed that Chicago, Illinois shall be deemed to be the place of all awards in these proceedings and the Tribunal endorsed that agreement in the Terms of Reference. (See Terms of Reference, Section XL.)

Neither party contested jurisdiction in this arbitration. There are no non-participating parties in this arbitration.

The Tribunal’s Final Award by Consent resolves all issues and claims asserted by the Parties in these proceedings as follows:

6.1. On May 3, 2018, P&WC and NORDAM entered into a stipulation that resolves these proceedings.

6.2. The parties requested that the Tribunal to enter their stipulation as a Final Award by Consent, having agreed that neither party shall or may advocate against it. Pursuant to Article 27 of the ICC Rules, these proceedings are closed as of the date hereof with respect to all issues and claims asserted by the Parties in these proceedings. In accordance with Article 38(1) of the ICC Rules, the ICC Court at its session of 7 June 2018 fixed the fees and expenses of the arbitral tribunal as well as the ICC administrative expenses for this arbitration at the total amount of US$217,000.00.

6.3. Having found that the stipulation falls within the parties’ arbitration agreements and the Terms of Reference, the Tribunal enters the following stipulation of the parties as its Final Award by Consent:

6.3.1. Other than as provided in paragraphs 6.3.2, 6.3.3 and 6.3.4 hereof, P&WC hereby withdraws, with prejudice, all claims that are the subject of these proceedings as identified in the Terms of Reference dated April 27, 2018, including the claims pled in its December 6, 2017 Request for Arbitration and in its Answer and Affirmative Defenses filed March 7, 2018 (collectively, "P&WC’s Claims").

6.3.2. Other than as provided in paragraphs 6.3.1, 6.3.3 and 6.3.4 hereof, NORDAM hereby withdraws, with prejudice, all claims that are the subject of these proceedings as identified in the Terms of Reference dated April 27, 2018, including the counterclaims pled in its January 31, 2018 Answer to Request for Arbitration, Affirmative Defenses and Counterclaims ("NORDAM’s Counterclaims").

6.3.3. The parties stipulate to the following declarations, which (together with paragraphs 6.3.1, 6.3.2 and 6.3.4) shall fully and finally resolve these proceedings:

a. P&WC has terminated for convenience that portion of the Contract with respect to the supply for the PW812 engine and "aircraft model #1 (with PW812GA Engine)," also referred to by the Parties as the "PW812" or the "G1," (collectively, the "PW812 Products"). Each of NORDAM and P&WC waives and releases all claims for compensation or other remedies under Article 27 of the Contract for such termination.

b. P&WC may, either directly or through a third-party, manufacture the PW812 Products upon such terms and in such a manner as P&WC reasonably deems appropriate.

c. NORDAM may not present claims for money damages or losses to P&WC, and P&WC may not present claims for money damages or losses to NORDAM, that arise out of or are based on: (i) facts or circumstances that occurred or existed on or before May 1, 2018; (ii) the claims pled in NORDAM’s Counterclaims or the claims pled in P&WC’s Claims; and/or (iii) the termination for convenience of the portion of the Contract relating to the PW812 Products.

d. NORDAM is not entitled to a price increase for any PW814/815 Products (as defined in the Contract), including for any IPPS or IPPS Shipset (each as defined in the Contract).

e. P&WC is not obligated to pay any amounts NORDAM claims it has spent or is owed as of May 1, 2018, in connection with the PW812 and PW814/815 programs. NORDAM is not obligated to pay any amounts P&WC claims it has spent or is owed as of May 1, 2018, in connection with the PW812 and PW814/815 programs.

f. Each Party shall bear its own attorneys’ fees and costs and each Party shall pay 50% of the costs of arbitration fixed by the ICC Court at a total of amount of US$217,000.00 in these proceedings.

So Ordered.

Place of arbitration: Chicago, Illinois, U.S.A.

Date: June28, 2018