• Copy the reference
  • Tutorial video

Corrected Final Award

I. Introduction

In this arbitration the Claimant Preble-Rish Haiti, S.A. ("PRH") claims damages for the alleged breach of three contracts, each dated May 13, 2020 (collectively, the "Contracts"), providing respectively for the supply by PRH of diesel fuel (sometimes referred to as gasoil), jet fuel and gasoline (sometimes referred to as Mogas 95). Each of the Contracts identifies the buyer as Bureau de Monétisation de Programmes d'Aide au Développement ("BMPAD"), which is an agency of the Republic of Haiti ("ROH") and is responsible for the purchase of fuels for use in Haiti. (BMPAD and ROH are sometimes referred to collectively as "Respondents.").1

II. Procedural Background2

A. Demand for arbitration and appointment of arbitrators

1.
On November 20, 2020, Blank Rome LLP ("Blank Rome"), counsel for PRH sent a letter demanding arbitration (the "Arbitration Notice") with the subject heading:

Re: Preble-Rish Haiti SA v. Republic of Haiti by and through its agent Monetization of Development Assistance Programs (BMPAD) Breach of Sale and Purchase Contracts Dated May 13, 2020, for petroleum products Gasoil, Mogas 95 and JET 54

2.
The Arbitration Notice began as follows

We are attorneys representing Preble-Rish Haiti SA ("PRH") who demand arbitration against the Republic of Haiti, by and through its agent Bureau de Monétisation de Programmes d'Aide au Développement" (BMPAD) (collectively referred to as "BMPAD") for disputes arising from BMPAD's breach of the three referenced contracts, copies of which are attached hereto (the "Contracts").3

3.
The Arbitration Notice stated that it was transmitted by email to Fils Aimé Ignace Saint-Fleur ("Saint-Fleur"), Director General of BMPAD, at the email address specified for notices in the Contracts, to other BMPAD officials and to Michel Patrick Boisvert, the Minister of Economy and Finance of the Republic of Haiti.
4.
Each of the Contracts contained the same arbitration clause which provided:

In the event of a dispute between the Buyer and Seller under this Contract, the dispute shall be submitted by either party to arbitration in New York before three arbitrators. The Party initiating the arbitration shall provide written notice of its intention to submit the matter to arbitration. Such notification shall contain a statement identifying the request for arbitration and specifying the arbitrator appointed by the initiating Party. Within ten (10) days of such notice of arbitration, the other Party will identify its appointed arbitrator. If such Party fails to appoint an arbitrator within the applicable 10-day period and fails to give timely notice of such appointment to the initiating Party, then the initiating Party shall also be entitled to appoint this second arbitrator. The third arbitrator will be chosen by the two arbitrators thus selected. Each Party shall bear and pay the expenses of the arbitrator appointed by (or for) it and the expenses of the third arbitrator shall be limited and paid equally by the Parties. The decision of the arbitrators shall be final, conclusive and binding on all Parties. Judgment upon such award may be entered in any court of competent jurisdiction. For disputes under $25,000 USD, an arbitrator will be used as agreed by both Parties. If the two Parties are unable to agree on an arbitrator, the Seller will appoint an appropriate arbitrator. No arbitrator shall be an employee, representative or agent of a Party and each shall reasonably believe that the selecting Party has the experience, education and expertise in the matters to which the claim relates to enable that person to competently perform such arbitration function.4

5.
The Arbitration Notice identified Robert G. Shaw as the arbitrator that PRH had appointed, called upon BMPAD to appoint an arbitrator within 10 days and, in accordance with the arbitration clauses in the Contracts, stated: "If BMPAD fails to appoint an arbitrator within 10 days, PRH will select an arbitrator on your behalf. Both arbitrators will then appoint a third arbitrator."
6.
BMPAD did not appoint an arbitrator by November 30, 2020, the last day of the ten-day deadline given in the Arbitration Notice. On December 1, 2020, counsel for PRH transmitted to BMPAD a Notice of Appointment of Second Arbitrator, identifying LeRoy Lambert as the second appointed arbitrator. The reference in the Notice appointing Mr. Lambert was the same as the reference in the Arbitration Notice and again demanded arbitration against ROH by and through BMPAD, On December 1, 2020, Mr. Shaw and Mr. Lambert appointed Louis Epstein as the third arbitrator and Mr. Epstein notified the parties of his appointment.
7.
In a letter transmitted by email to counsel for PRH and to the Panel on December 4, 2020, Dan Harris, a partner in the law firm Harris Bricken Sliwoski LLP ("Harris Bricken"), stated:

We are counsel for the Government of Haiti (GOH) and its Bureau de Monétisation de Programmes d'Aide au Développement (BMPAD) and this letter is in response to the arbitration you purport to have brought against BMPAD.

Mr. Harris's letter objected to the arbitration and demanded that PRH dismiss it, failing which Harris Bricken would seek relief in the appropriate court.

B. State court motion for stay, temporary restraining order and preliminary injunction

8.
On December 22, 2020, a petition was filed in the Supreme Court of the State of New York, New York County by "Republic of Haiti ('ROH') and Bureau de Monétisation de Programmes D'aide au Développement ('BMPAD') (together, 'Petitioners') by and through their attorneys, Harris Bricken Sliwoski LLP." The petition sought an Order, pursuant to CPLR § 7503(b), staying this arbitration upon the grounds that PRH's demand for arbitration was procedurally deficient and that, under Haitian law, the arbitration clause in the Contracts was invalid. The petitioners, ROH and BMPAD, simultaneously filed a motion for a temporary restraining order and a preliminary injunction to halt proceedings in this arbitration. PRH opposed the motions and filed a cross-motion to compel arbitration against ROH and BMPAD.

C. PRH request for interim partial award of security

9.
On March 24, 2021, PRH submitted to the Panel its Initial Claim Statement and Request for an Interim Partial Award of Security in the Sum of $30,000,000 together with the Affidavit of Josue Leconte dated March 24, 2021 ("Leconte Aff.") and Exhibits A through WW. PRH advised that the hearing in the state court on the parties' motions would not take place until July 27, 2021, noted that there was no court order staying the arbitration and stated that to avoid irreparable prejudice to PRH, the arbitration should proceed and its request for an interim award of security should be granted.
10.
By email on March 27, 2021, Harris Bricken submitted on behalf of ROH and BMPAD a two-page Response to PRH's Initial Claim Statement and Request for an Interim Award (the "Response"). Harris Bricken stated that it did not recognize this Panel's jurisdiction and had accordingly filed in the state court its petition for a stay and request for a temporary restraining order and preliminary injunction5 After commenting briefly upon the merits of PRH's request for security, Harris Bricken stated:

ROH reserves all of its rights in connection with this purported arbitration, the New York action, and the lawsuit it will file in Haiti against PRH. Because ROH does not waive or intend to jeopardize its position of non-arbitrability under CPLR 7503(b), it has no intention of filing a Statement of Defense or posting a bond in this action.

D. April 5, 2021, Panel ruling that in the absence of a temporary restraining order halting proceedings, the arbitration would go forward, and the Panel would consider and determine PRH's request for security

11.
In an email ruling on April 5, 2021, the Panel noted that "in its [state court] motion papers, ROH does not dispute that the parties entered into agreements containing an arbitration clause…. ROH contends, rather, that PRH's arbitration demand was procedurally defective and that the arbitration provisions in the agreements are invalid under Haitian law." The Panel then considered whether this arbitration could proceed while BMPAD's motion to stay was pending:

In support of its motion to stay, ROH cites Material Damage Adjustment Corp. v. Eliphene, 261 A.D.2d 545, 690 N.Y.S.2d 601, 602 (2d Dep't 1999), for the proposition that "a temporary restraining order is necessary to halt arbitration proceedings pending a petition to stay arbitration." ROH Memorandum at p. 4. In Material Damage, the Second Department affirmed the denial of a motion to vacate an award when, although the petitioners had commenced a proceeding to stay the arbitration, they had not obtained a temporary restraining order. The court held as follows:

Although the petitioners commenced a proceeding in the Supreme Court to stay arbitration, they never obtained a temporary restraining order to prevent the arbitration from proceeding pending its determination. As a result, the petition did not require the arbitrator to adjourn the hearing, and the arbitration award was not the product of misconduct.

261 A.D.2d at 546, 690 N.Y.S.2d at 602. See also Ahern Painting Contractors, Inc. v. Dist. Council of New York City & Vicinity of United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 141 A.D.2d 791, 792, 530 N.Y.S.2d 21, 22 (2d Dep't 1988) ("On the absence of express language in CPLR 7503 indicating that a notice of petition to stay arbitration by itself operates as a stay, the arbitrator was free to proceed.")

ROH has not obtained a temporary restraining order or preliminary injunction to prevent this arbitration from proceeding pending determination of its motion for a stay. Therefore, we are free to proceed with the arbitration.

12.
Regarding whether the arbitration should proceed, the Panel stated:

If a decision on the motion to stay were imminent, the Panel might consider exercising its discretion to await the ruling of the court. We understand, however, that, although the initial return date for the motion was in January 2021, oral argument is not scheduled to take place until July 27, 2021 -- nearly four months from now and more than eight months after this arbitration was commenced. We assume that a decision on the motion will not issue until sometime thereafter.

In its Initial Statement of Claim and Request for Security, PRH contends that if the arbitration is not allowed to proceed and if security is not provided, it will suffer irreparable harm. In these circumstances, the Panel would be remiss if we did not, at a minimum, hear and decide PRH's request for security. A respondent in a New York arbitration should not be allowed to effectively put proceedings on hold for several months merely by making an application for a stay – an application that may ultimately be denied.

The opening sentence of the arbitration clause in the contracts between the parties states: "In the event of a dispute between the buying and selling parties under this contract, the dispute will be submitted by one or the other of the parties to arbitration in New York, before three arbitrators." We are presented with a dispute between the parties under the contracts. There is no stay in place and thus far there has been no determination that the arbitration demand was procedurally defective or that the arbitration provisions of the contracts are invalid.

13.
In conclusion, the Panel ruled as follows:

We will therefore consider and decide PRH's application for security. We note that in response to that application ROH has thus far submitted a two-page document containing a number of assertions but without evidentiary support, legal argument, or citation of authority. In the circumstances, we hereby direct as follows:

a. ROH shall respond fully and substantively to PRH's Initial Claim Statement and Request for Security on or before April 23, 2021;

b. PRH shall reply on or before April 30,2021.6

14.
On April 9, 2021, Harris Bricken submitted to the state court a request for a preliminary conference. A copy of the request was provided to the Panel. The request, stated in part:

PRH's arbitrators … have directed ROH to submit a substantive response and pay them $30,000 by April 23, 2021…. ROH has attempted to explain to both PRH and its arbitrators that it has sought a temporary restraining to prevent the arbitration, and that PRH's only remedy for compelling ROH to participate in the arbitration is through its pending Cross-Motion, to no avail. PRH continues to force the issue in the arbitration and seek ROH's participation. For that reason, ROH is left with no choice but to request a telephonic Preliminary Conference to discuss the parties' rights and obligations during the pendency of the Petition for Stay, Motion for Temporary Restraining Order, and Cross-Motion. It cannot be that ROH must participate in an arbitration that it contends on a good-faith basis is illegal during the pendency of its Motion for a Temporary Restraining Order.

15.
Counsel for PRH responded to ROH's request, attaching to its response a copy of the Panel's April 5 ruling. We understand that a telephonic Preliminary Conference eventually took place but that, following the conference the state court did not issue any order preventing proceedings in this arbitration from going forward.

E. Further written submissions on PRH's request for security

16.
In accordance with the Panel's April 5, 2021, order, Harris Bricken on behalf of ROH and BMPAD, submitted on April 23, 2021, Respondents' Initial Statement of Defense, Counterclaims, Reservation of Rights, and Response to Request for Security ("Respondents' Defense"), the Affidavit of Fils Aimé Ignace Saint-Fleur, Director General of BMPAD, dated April 23. 2021 ("Saint-Fleur Aff.") and appended Exhibits A through E-1. In conclusion, after reserving their rights, Respondents denied any liability to PRH, and asked for an award on their counterclaim of "an amount no less than $30,000,000, attorney's fees and costs." In addition, on April 23, 2021, Harris Bricken transmitted to the Panel what it described in a covering email as "a zip folder containing the briefs filed in the New York actions…."7
17.
On April 30, 2021, PRH submitted its reply to the BMPAD Defense (the "PRH Reply") together with the Affirmation of Nathalie Brunet dated April 30, 2021 ("Brunet Aff.") and annexed Exhibits XX, YY and ZZ.

F. Hearing on security scheduled for June 21-23, 2021

18.
By email on May 20, 2021, the Panel issued the following order:

We acknowledge receipt of: (a) the Respondents' Initial Statement of Defense, Counterclaims, Reservation of Rights and Response to Request for Security dated April 23, 2021, the Affidavit of Ignace Saint Fleur, of the same date and the accompanying exhibits; and (b) the Claimant's April 30, 2021 Reply to the foregoing and in further support of its initial claim statement and request.

In light of the amount of security sought and the issues that have been raised by the parties, we think it important, before ruling, to hold a hearing on the application for security in order to provide the parties with an opportunity to present their respective witnesses, Mr. Leconte and Mr. Saint Fleur, and to allow for cross-examination and oral argument.

Based on the submissions thus far and taking into account that a translator may be needed for one or both of the witnesses, the Panel does not anticipate that more than 3 days will be required and accordingly sets June 21-23, 2021 as the dates for such hearing.

The hearing will be held remotely via Zoom. We request that counsel for Claimant make the necessary arrangements for the Zoom link and for transcription of the proceedings.

19.
In an email to the Panel on June 2, 2021, Harris Bricken, after repeating the objection to the jurisdiction of the Panel, asserted that "due process would require that any hearing take place live and in-person," and that "various technical issues (including a recent Covid surge) in Haiti make a remote hearing—and GOH's preparation for any hearing—a practical impossibility. To that end, GOH will not be attending any 'hearings' you have scheduled." Harris Bricken further contended that the timeline set by the Panel for hearings was not workable or reasonable as it would not allow for the pre-hearing deposition of several witnesses or for document discovery. In an email the same day, counsel for PRH disputed these assertions.
20.

By email to counsel on June 4, 2021, the Panel responded as follows:

On the "timeline" for the hearing on the application for security, sufficient notice was given. Notice of the hearing was given on May 20, more than thirty days in advance.

Regarding the objections raised by ROH some twelve days later:

● We reject the assertion that due process requires an in-person hearing. During the past year, arbitrations, trials and hearings of all kinds in the United States and throughout the world have been held remotely by video. Courts that have considered the matter have held that virtual hearings are consistent with due process. See e.g. Ciccone v. One W. 64th St., Inc., 69 Misc. 3d 585, 592, 132 N.Y.S.3d 261, 266 (N.Y. Sup. Ct. 2020) and cases cited therein. ("These courts have found that given 'advances in technology,' the "near-instantaneous transmission of video testimony" permits the court "to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, and his calmness or consideration.") Most arbitration rules permit the taking of testimony by video conference. See, e.g. Section 23 of the SMA Rules, Article 22 (2) of the AAA ICDR International Arbitration Rules, Article 26 (1) of the ICC Rules of Arbitration, Article 28(4) of the UNCITRAL Arbitration Rules. Counsel for the Claimant has in any event offered to make its witness available in person for cross examination by counsel for the Respondent, obviating any due process concern.

● Regarding the assertion of counsel for ROH that it wishes to take depositions, depositions are not normally part of arbitration proceedings in New York or elsewhere in the world.

● Regarding document production, nothing has prevented the Respondent from requesting the production of documents from the Claimant.

● Regarding the "various technical issues" mentioned, including the recent COVID surge, we would require further evidence of the nature of those technical issues and their precise effect in order to determine whether any delay in the presentation of ROH's witness is warranted.

In conclusion, after considering the comments of the parties, we rule that the hearing on the application for security will go forward as scheduled. We urge ROH to participate in that hearing which it may do while reserving its position that the agreement to arbitrate in the contract between PRH and ROH is invalid under Haitian law.

G. Adjournment of hearing because of illness of BMPAD's principal witness

21.
By email on June 9, 2021, Harris Bricken advised that Mr. Saint-Fleur, BMPAD's Director and its principal witness, had contracted COVID and thus would be unable to attend the hearing remotely. In an email on June 12, 2021, the Panel stated:

We regret that Mr. Saint-Fleur contracted Covid and wish him a full recovery. We note that approximately three weeks have now passed since it was announced on May 24 that Mr. Saint-Fleur had been diagnosed and that approximately ten days remain until the hearing commencing on June 21. Mr. McDonald, can you kindly provide us with an update on Mr. Saint-Fleur's condition and prognosis? If Mr. Saint-Fleur will not, for reasons of health, be able to testify by Zoom at the hearing commencing on June 21, please advise when he will be made available to testify.

22.
On the evening of June 14, 2021, Harris Bricken submitted a Declaration of Mr. Saint-Fleur ("Saint-Fleur Decl") stating that he had contracted COVID in or around late May, that he had been confined to his residence and that he would not be able to attend the June 21-23 hearing scheduled by the Panel. He attached what he referred to as a May 31 order prescribing certain restrictions on activities in Haiti to prevent the spread of COVID.
23.
In an email on June 16, the Panel stated:

Mr. Saint-Fleur's June 11 affidavit, provided to us on June 14, is not responsive to our June 12 inquiries. It does not contain an update on his condition or prognosis. Although he refers to the May 31 order, nothing in the provisions of that order would appear to preclude Mr. Saint-Fleur from participating remotely in a Zoom hearing. Nor does the affidavit state when Mr. Saint-Fleur will be made available to testify. We again ask Mr. McDonald to urgently and fully clarify these matters latest by the close of business tomorrow, June 17.

24.
By email on June 17, Mr. Harris responded:

I received the following update yesterday afternoon from one of the lead Haitian lawyers working on this case with our law firm:

"Saint Fleur is still infected by Covid. Apparently, he has not answered his phone since 3 days. His assistant can't do anything without his authorization."

None of our lawyers have been able to directly communicate with Mr. Saint Fleur since he first came down with COVID. The sworn affidavit provides as much information as is available at this time. Mr. Saint Fleur is still experiencing symptoms, there is no new prognosis, and he cannot (and should not) leave his home to go to his office for reliable internet access. We do not know when he can be made available to testify. To put it bluntly, his survival is not clear and Mr. Bennett's claim that he is "back to work" is both dishonest and callous.

As we've written before, the situation in Haiti is dire and we are not going to prioritize this hearing over the health and well-being of any person as Mr. Bennett urges us to do. We will not be appearing at the hearing set for next week because of the foregoing and for all the reasons stated in our prior emails.

25.
By email that day, the Panel adjourned the hearing scheduled for June 21-23, stating:

The Panel thanks Mr. Harris for his below update. We again wish Mr. Saint-Fleur a complete recovery and express our support for all Haitians as they deal with this virus and its tragic consequences.

While we appreciate PRH's desire to have a prompt decision on its application, the Panel has carefully considered the matter and has decided, in these circumstances, to adjourn the hearing scheduled for next week.

We ask counsel to endeavor to agree to dates in mid- July for the hearing and to report back to us latest Wednesday, June 23. If counsel are unable to agree by then, the Panel will set new dates for the hearing.

If Mr. Saint-Fleur remains too ill to testify at the adjourned hearing, ROH should be prepared to present a substitute witness. There will be no further adjournments.

26.
By email on June 23, 2021, Harris Bricken advised the Panel that it was unable to identify new dates for the hearing. On June 24, Dan Harris of that firm advised the Panel that PRH had "initiated a Rule B attachment in the United States District Court for the Southern District of New York and had attached approximately $24 million in funds in a Haitian Citibank account…. The reason I am writing you now is because PRH's federal court action obviously moots the need for a security hearing before this panel in July." In a response the same day, counsel for PRH disputed the assertion that the application for security was moot.
27.
On June 26, 2021, the Panel responded as follows:

Thank you for your below messages. We take note of the views that you have expressed. The hearing on Claimant's application for security will go forward. At the hearing, we will consider the parties' conflicting positions on the effect, if any, of the Rule B proceeding on the application.

H. Panel Order scheduling hearing for July 28-29, 2021

28.
As the parties had not been able to agree on new dates for the adjourned hearing, the Panel set new dates, stating that "the hearing on the application for security will take place July 28-29, 2021. There will be no further adjournments."
29.
On June 30, 2021, Mr. Harris advised the Panel as follows:

I spoke with one of the Haitian lawyers this evening and that person informed me that Mr. Saint Fleur has recovered from COVID.

30.
The hearing in PRH's application was thus set to go forward on July 28-29.

I. Panel Order denying BMPAD request for further 60-day adjournment

31.
In an email to the Panel on July 16, 2021, Harris Bricken requested a 60-day adjournment of the hearing scheduled for July 28-29. Counsel gave two reasons for the requested adjournment. First counsel noted that on July 7, 2021, Haitian President Jovenel Moïse had been assassinated. Counsel asserted that its work on this arbitration "was always overseen and directed by President Moise and his death means we now have nobody to whom we can turn for instruction/direction." Second, counsel stated: "Seeing as how plaintiff has attached/frozen $29 million in a Haitian bank account, this hearing is moot in any event." Counsel noted that the day before, BMPAD had requested and had now received from the state court a 60-day adjournment of the hearing on its petition for a stay of the arbitration which had been set for argument on July 27.
32.
By email on July 19, 2021, counsel for PRH stated its strong opposition to any further adjournment.
33.
On July 21, 2021, the Panel denied Respondents' request for an adjournment. Regarding the grounds given for the request, the Panel stated:

First, counsel for ROH asserted that because of the assassination of President Moise, he has no one to whom he can turn for directions/instructions.

● As counsel for PRH pointed out in their email of July 19, 2021, ROH has previously alleged in these proceedings that Mr. Saint-Fleur is the person responsible for handling the claim for Respondents. There has been no previous indication of any involvement of President Moise.

● As counsel for PRH also pointed out, the assassination and alleged lack of instructions did not prevent counsel for ROH from announcing in a July 15, 2021, pre-motion letter to the United States District Court for the Southern District of New York, its intention to submit a motion to vacate on various grounds the maritime attachment order issued by that court and requesting that the motion be heard on July 22, 2021.

● In response, the court, in an endorsement to the pre-motion letter, stated: "BMPAD may file its proposed motion at its earliest convenience. Applicants will have ten days to respond and BMPAD will have seven days to reply." Hence, in the coming weeks, counsel for ROH has undertaken to perform significant legal work in connection with this dispute, notwithstanding the assassination of President Moise.

Second, counsel for ROH asserted that the hearing on PRH's application for pre-award security is moot because PRH already has a maritime attachment of $29 million. That is not correct. ROH's motion to vacate the maritime attachment, if successful, may leave PRH without any security whatsoever. In these circumstances, the Panel finds that the application to this Panel for pre-award security is not moot.

34.
The Panel observed that PRH's application for security was first made on March 24, 2021, nearly four months before, that the parties had exchanged detailed submissions, witness statements and exhibits and that Respondents had had ample time to prepare for the hearing on PRH's application. In conclusion, the Panel stated:

While we feel the utmost sympathy and concern for the people of Haiti, we must also take into account the interests of the claimant and the urgency of its request for security.

As we advised when granting ROH's last request for an adjournment, the hearing on July 28-29 will go forward as scheduled and there will be no further adjournments.

J. Respondents' announcement that they "cannot and will not attend the hearing on PRH's request for an interim award of security."

35.
On July 23, 2021, counsel for Respondents submitted to the Panel a letter dated July 22 stating that, for various reasons, they "cannot and will not attend the hearing on PRH's request for an interim award of security." Together with the letter, Respondents submitted the papers they had recently submitted in federal court in support of their motion to vacate the Rule B attachment.
36.
On July 25, 2021, the Panel responded to Respondents' July 22 letter, stating again that it would not agree to any further adjournment of the hearing and repeating the reasons set forth in its prior rulings. The Panel rejected any suggestion that it had declined to adjourn the hearing because it was not "neutral or impartial" or that it wanted to run up its fees and rejected Respondents' contention that the arbitrators had a "conflict of interest." In conclusion, the Panel stated:

The hearing on PRH's application for an interim award of security will go forward. In the absence of a stay, temporary restraining order or preliminary injunction preventing this arbitration from proceeding, PRH is entitled to a hearing on its application. ROH is entitled to appear under a reservation of rights and to oppose PRH's application on any grounds that it believes to exist. The parties have submitted evidence and argument on their respective positions. Among other things, the hearing is intended to provide ROH and Harris Bricken with the opportunity to cross-examine PRH's witnesses, to present ROH's witnesses in opposition to the application and to present oral argument. We again urge ROH to take advantage of that opportunity and to participate in the hearing while fully reserving its position on the issues mentioned above.

37.
By email on July 27, 2021, counsel for Respondents again wrote to the Panel repeating assertions that the Panel was biased, providing links to published reports suggesting past improper conduct on the part of PRH and its principals and objecting on due process grounds to the Panel's decision to proceed with the hearing. In its response that evening, the Panel said:

We have already considered and rejected, in our message of the July 25, the arguments raised by BMPAD to further delay tomorrow's hearing while BMPAD presses forward on an expedited basis with its motion to vacate the Rule B attachment. As we observed in that message, PRH's application for an award of security has been pending since March 24, 2021. BMPAD has opposed the application with documentary evidence and legal arguments and has had ample time and opportunity to submit additional evidence bearing upon the application -including any evidence supporting the allegations contained in your below message that PRH and Mr. Leconte have engaged in wrongdoing, to the extent that such evidence is relevant to the issues before us.

We again reject any suggestion that there is any conflict of interest or partiality on the part of the arbitrators

The purpose of the hearing commencing tomorrow is to afford PRH an opportunity to present witnesses and evidence on its application for security and to afford BMPAD an opportunity to contest that application, to cross examine PRH's witnesses under oath (including Mr. Leconte) and to present its own witnesses. We again urge BMPAD to take advantage of that opportunity and to participate in the hearing under a full reservation of rights.

K. July 28, 2021, hearing on PRH's application for an interim award of security

38.
The hearing on PRH's application for an interim award of security commenced on July 28, 2021, at 10:00 am. Counsel for Respondents was given notice of the hearing and was sent a link to the Zoom session but chose not to attend or participate.8
39.
On July 28, the Panel wrote again to counsel for Respondents and again urged Respondents to participate in the second day of the hearing, noting that counsel for PRH, the witnesses, arbitrators and court reporters had been asked to stand by and asking counsel to confirm its intention to participate by 11 pm that evening. No confirmation was received and the next morning, the Panel sent the following message to counsel:

We have received no response to our below email asking Harris Bricken to confirm by 11 pm Eastern time on July 28 its intention to appear and present a defense at the second day of hearings on PRH's application for an award of pre-award security. We therefore confirm that the second day of hearings, which was scheduled to commence at today at 10 am, is canceled.

Subject to receipt of any documents or information requested by the Panel or which PRH agreed to provide at the hearing yesterday, the Panel declares that proceedings on PRH's application are closed. The Panel will commence its deliberations and issue its partial final award in due course. The Panel reserves the right to reopen proceedings if questions arise during its deliberations which require clarification from the parties.

L. August 6, 2021, Partial Final Award on security

40.
On August 6, 2021, the Panel issued a Partial Final Award granting PRH's petition for a pre-award security and directing BMPAD to deposit $23,043,429.79 into an escrow account. (Partial Final Award ¶ 119.) 9
41.
On September 29, 2021, a Supplemental Partial Final Award was issued designating JP Morgan Chase Bank, NA ("JPM Chase") as independent escrow agent to receive and hold in escrow the security awarded by the Panel in the Partial Final Award.

M. Dismissal of Respondents' petition to stay and granting of PRH's petition to compel arbitration

42.
In an order issued on September 27, 2021, the state Supreme Court, per Justice Borrok, dismissed Respondents' petition to stay and granted PRH's cross-motion to compel arbitration against ROH and BMPAD. Among other things, the court held that the "petitioners fail[ed] to establish that the arbitration provisions are illegal under Haitian law."5
43.
Respondents appealed to the First Department and sought a stay of Justice Borrok's order pending appeal. On November 3, 2021, Respondents obtained an interim stay.
44.
However, on December 7, 2021, a five-member panel of the First Department vacated the interim stay and denied Respondents' motion for a stay pending appeal.
45.
On April 12, 2022, the First Department unanimously affirmed Justice Borrok's order.

N. Amended Statements of Claim and Defense

46.
On September 20, 2021, PRH submitted an Amended Initial Statement of Claim which added a maritime tort claim.
47.
On October 21, 2021, Respondents submitted an Amended Statement of Defense and Counterclaim containing its response to the maritime tort claim. Respondents again asked for "attorney's fees and costs."

O. October 15, 2021, order scheduling hearing on the merits to begin February 7, 2022

48.
In an order issued October 15, 2021, the Panel advised the parties that the final hearing on the merits would take place during the two weeks commencing February 7, 2022, that all discovery should be completed by January 5, 2022, and that pre-hearing submissions would be due by January 26, 2022. The Panel also directed the parties to deposit an additional $100,000 each into an escrow account as security for the Panel's fees and noted that BMPAD had not remitted $50,000 pursuant to the Panel's prior order.

P. Second Supplemental Partial Final Award on security

49.
JPM Chase subsequently declined to serve as escrow agent. Accordingly, on October 28, 2021, counsel for PRH submitted escrow agreements and related documents from three potential escrow agents including BNY Mellon. On November 1, 2021, the Panel ruled that Respondents would have until November 3, 2021, to advise whether they objected to any of the potential escrow agents. By email on November 3, 2021, Harris Bricken advised: "We have no objections to BNY Mellon." Accordingly, by email on November 3, counsel for PRH stated that it would "contact BNY Mellon and begin the process of opening an escrow account."
50.
After obtaining an interim stay of the arbitration on November 3, 2021, Harris Bricken advised the Panel that, as proceedings had been stayed, it would not do anything further with respect to the escrow account.
51.
After the interim stay was vacated, counsel for PRH, by email on December 10, 2021, submitted for the Panel's approval a proposed escrow agreement based on BNY Mellon's form. By email on December 13, 2021, the Panel approved that the proposed form of escrow agreement. The Panel was subsequently informed by the parties, however, that BNY Mellon had declined to serve as escrow agent.10
52.
PRH proposed that Glas Americas LLC ("Glas") be appointed as escrow agent, with the funds to be held at JPM Chase and provided supporting documents and information from Glas, including a sample escrow agreement and information on Glas's background and experience. BMPAD opposed the appointment of Glas. After receiving written submissions from the parties, the Panel ordered that a hearing take place on Monday, January 17, 2021, by means of Zoom (subsequently changed to Teams) at which, among other things, the Panel would hear oral argument on certain pending issues including (a) PRH's request that Glas be appointed as escrow agent and (b) PRH's request that the amount of pre-hearing security be increased. The hearing took place on January 17, 2021, but Harris Bricken chose not to participate.
53.
The Panel thereafter invited the parties to submit latest by 5 pm New York time on January 31, 2022, their views as to two possible alternatives to a deposit of funds into an escrow account which might avoid the need for appointment of an escrow agent. One alternative was a direction that Respondent should establish a surety bond or standby letter of credit. The other alternative was the deposit of the security amount into the registry of the court in accordance with Rule 67 of the Federal Rules of Civil Procedure. PRH submitted its views and a proposed order by the deadline, but BMPAD failed to do so. As a courtesy, the Panel extended the deadline to 12 noon New York time on February 1, 2022. BMPAD failed to object to PRH's January 31, 2022 proposal or to submit any response by the extended deadline.
54.
Accordingly, on February 2, 2022, the Panel issued its Second Supplemental Partial Final Award directing that, on or before February 7, 2022, BMPAD should either cause to be issued in favor of PRH a surety bond or standby letter of credit for the security amount of $23,043,429.79 or deposit that amount in the registry of the United States District Court for the Southern District of New York. BMPAD failed to comply with either alternative.
55.
On February 2, 2022, the Panel also declined to direct BMPAD to make available certain witnesses for testimony at the hearing on the merits and deferred decision on PRH's request that sanctions be imposed on BMPAD for its failure to respond to PRH's discovery requests, and deferred decision on certain other matters until the issuance of the final award.

Q. Confirmation of the Partial Final Award

56.
Meanwhile, on January 26, 2022, the United States District Court for the Southern District of New York granted the petition of PRH to confirm the Partial Final Award.11 The court, per Judge Castel, rejected Respondents' contentions that the arbitration provision was illegal under Haitian law, that there had been a lack of due process in the arbitration, that Respondents had been "otherwise unable to present [their] case," that there was an "improper" arbitration Panel; and that enforcement should be refused under the public policy exception in Article V(2)(b) of the New York Convention.
57.
On June 1, 2022, the Second Circuit "so ordered" a stipulation filed by the parties withdrawing BMPAD's appeal of Judge Castel's order pursuant to FRAP 42.

R. Pre-hearing submissions

58.
On January 26, 2022, PRH submitted its pre-hearing statement together with an affirmation from Mr. Bennett. Respondents did not submit a pre-hearing statement.

S. February 7, 2022, final hearing on the merits

59.
On February 7, 2022, the final hearing on the merits took place by videoconference. Appearing on behalf of Respondents were Dan Harris and John McDonald of Harris Bricken. Appearing on behalf of the Claimants were William Bennett, Lauren Wilgus and Rick Antonoff of Blank Rome. The hearing commenced at 10:30 am New York time.
60.
After opening remarks casting aspersions on the proceedings and on PRH, Mr. Harris stated that he would be cross-examining PRH's witnesses but that he "doubted" that Respondents would be presenting any witnesses of their own. Mr. Bennett then made his opening statement and presented three witnesses:

● Kenny Christofferson, an independent consultant who provided CFO services to PRH and who testified as to the amounts invoiced by PRH to BMPAD and as to the calculation of various items of damages claimed by PRH in this arbitration.

● Nathalie Brunet, vice president and COO of PRH who had submitted an affidavit in the case; and

● Josue Leconte, president and CEO of PRH, who had also submitted an affidavit.

61.
Mr. Christopherson and Ms. Brunet testified on direct examination and Mr. Harris cross examined them. Mr. Leconte did not testify on direct and referred instead to his previous affidavit and his testimony at the July 2021 hearing. Mr. Bennet objected to cross-examination of Mr. Leconte, contending that Mr. Leconte had not submitted any evidence beyond what he submitted in July 2021 and that Mr. Harris had had the opportunity to cross-examine him then but did not do so. The Panel overruled this objection, and Mr. Harris cross-examined Mr. Leconte. There were then brief closing statements, following which the hearing was adjourned at 3:15 pm. Following the hearing, the Panel directed the parties to provide post hearing submissions by February 23, 2022.

T. Letter submitted to the Panel on behalf of the Republic of Haiti

62.
On February 23, 2022, the Panel received a letter from Elizabeth Wolstein of Schlam Stone & Dolan LLP12 stating that her firm, together with Madsen Law Firm, had recently been retained to represent the Republic of Haiti in connection with the arbitration. Ms. Wolstein asserted that ROH was not a party to the Contracts or a signatory to the arbitration agreement and requested that the Panel clarify that its August 6, 2021, Partial Final Award did not run against the ROH and that ROH was not a respondent in this arbitration. As noted above, Harris Bricken appeared on behalf of and represented both BMPAD and ROH throughout the arbitration and in court proceedings on Respondents' petition to stay and PRH's cross-motion to compel. No such defense was raised in the arbitration or in the state court proceedings.
63.
On February 25, 2022, the Panel granted Blank Rome's request for additional time, until March 4, 2022, to respond to Ms. Wolstein's letter. On March 4, 2022, Blank Rome noted that Ms. Wolstein had on behalf of ROH, by order to show cause, sought relief from the judgment that had been entered against ROH and against BMPAD on the Partial Final Award. Blank Rome noted that in that case, the court had ordered the Republic to produce full copies of certain items referenced by ROH in its motion papers and asked the Panel to extend PRH's time to respond to Ms. Wolstein's letter until one week after the materials in question had been provided. Ms. Wolstein did not object, provided that she be given one week to reply to PRH. On March 6, 2022, the Panel granted PRH's request for an extension and the Republic's request for an opportunity to reply.
64.
On March 14, 2022, PRH submitted its response to Ms. Wolstein's February 23 letter asserting on various grounds, that the Panel should confirm that the Partial Final Award was issued against and binding upon ROH
65.
In a reply on March 25, 2022, ROH disputed the grounds asserted by PRH and urged the Panel to provide the clarification previously requested. On the same day, PRH submitted a further response urging the Panel to deny ROH's request and ROH submitted a further brief response.
66.
On April 1, 2022, the Panel responded as follows to the submissions on this point:

1. The Panel issued its Partial Final Award for security on August 6, 2021. A corrected version was issued on August 12, 2021.

2. On January 26, 2022, the United States District Court for the Southern District of New York confirmed the Partial Final Award. See Preble-Rish Haiti, S.A. v. Republic of Haiti, No. 21-CV-6704 (PKC), 2022 WL 229701 (S.D.N.Y. Jan. 26, 2022).

3. On February 3, 2022, an amended judgment was entered on the certified award.

4. We understand that the Republic of Haiti ("ROH") has filed a motion for relief from the judgment and that a briefing schedule has been established with respect to that motion.

5. We further understand that an appeal of the judgment confirming the Partial Final Award is now pending in the United States Court of Appeals for the Second Circuit.

In these circumstances, with the Partial Final Award having been confirmed and various court proceedings pending with respect to the resulting judgment, the Panel believes that it would be inappropriate to reopen the Partial Final Award for clarification as requested by ROH. The request is therefore denied on that basis. The request of PRH for sanctions against the Respondents is also denied.

We express no opinion at this point on the merits of the issues briefed by counsel for PRH and ROH in their submissions following ROH's request. Having received counsel's submissions, we will address those issues in our final award.

U. Post hearing submissions

67.
On February 23, 2022, the Panel received the parties' post-hearing submissions. During our deliberations, it became apparent that, in their post hearing submission, Respondents presented an argument that had not been clearly articulated in its prior submissions in the arbitration and which, in the Panel's view, PRH had not had an adequate opportunity to answer. Therefore, on May 9, 2022, the Panel issued the following directive:

In their Post Hearing Submission, counsel for the Respondents elaborated the Respondents' position concerning their contention that they "overpaid" PRH based on the difference between the prices that appear in Clause 6.1 of each Contract and the prices that appear in Appendix 1 of each Contract including, at pages 3-7, a statement of the facts (based largely on the affidavit of Mr. Saint-Fleur and Exhibits thereto) which, they contend, support their position and, at pages 8-10, arguments based on Haitian law which, the Respondents contend, governs the Contracts and determines this issue.

In support of their position that the prices appearing in Clause 6.1 of each Contract should apply, the Respondents also submitted the affidavit of Claudie Marsan, a Haitian attorney who, the Respondents assert, is an expert on government procurement law.

Because post hearing submissions were simultaneously exchanged, the Claimant has not had an opportunity to reply to the Respondents' arguments on this issue as those arguments have now been more fully elaborated

The Panel wishes to hear the Claimant's views.

We therefore direct that the Claimant shall, on or before May 27, 2022, address the facts and legal arguments set forth in the Respondent's Post-Hearing Submission and in Ms. Marsan's affidavit relating to this issue.

68.
In a further message on May 11, 2022, the Panel said:

Further to our below message, we ask that PRH include with its May 27 reply copies of the correspondence and draft contracts referred to by Ms. Brunet in paragraphs 2 through 8 of her affirmation.

We also ask that PRH, in addressing the arguments of the Respondents on this point, state its position not only (a) under Haitian law, but also (b) under New York law and (c) under any other law which the PRH contends to be applicable in deciding this issue.

69.
On June 3, 2022, the Panel received PRH's Supplemental Post Hearing Submissions addressing the above points. Upon review of the materials submitted, the Panel noted that certain items had been omitted and requested that these and other items be provided. On June 23, 2022, PRH provided the missing items.

III. Factual background

A. Instruction to bidders for the supply of petroleum products

70.
BMPAD is an agency of the government of Haiti and is the only institution authorized to order petroleum products to make them available for consumption throughout the country. PRH is a Haitian limited liability company engaged in various businesses, including the supply of petroleum products. PRH had prior contracts with BMPAD for the supply of asphalt and high sulfur fuel oil.
71.
On April 27, 2020, ROH, through BMPAD, opened a bidding process to certain Haitian oil companies for three government contracts for the provision of the petroleum products gasoline, diesel and jet fuel for a six-month period. The request for bids, addressed to all commercial companies regularly established in Haiti, provided that offers must be submitted in a sealed envelope latest April 30 at 10 am and that opening of the bids would take place on the same day at 11 am at a conference room of the Ministry of Economy and Finance.
72.
Section 1 of the instructions to bidders, entitled "Le volume du produit à livrer" provided that each offer must include the following monthly quantities:

Produit13 Quantité Unités
Diesel 550,000.00 barils
Gazoline 375,000.00 barils
Kérosène 75,000.00 barils

73.
After the technical specifications for each product, the request for bids contained a template setting out in a two-column table BMPAD's requested terms for the bids to be submitted. Except for quantity (which for each product was as specified above, plus or minus 10 percent in buyer's option) and price (discussed below), the terms for each product were more or less identical.
74.
"Supply conditions" were "Delivered at Terminal (DAT). Port au Prince. Haiti."14
75.
With respect to price, the templates for each product provided respectively as follows:

Diesel (Gasoil):

Price Formula Mean Quotes Platt's USGC WB No.2 +.... CPG15
Pricing period 3 days immediately after B/L date (B/L+1; B/L+2: B/L+3)

Jet Fuel

Price Formula Mean Quotes Platts USGC WB Jet 54 + CPG
Pricing period 3 days immediately after B/L date (B/L+1; B/L+2: B/L+3)

Gasoline (Mogas 95 Ron)

Price Formula Mean Quotes Platt's USGC WB MOGAS 87 +....... CPG
Pricing period 3 days immediately after B/L date (B/L+1; B/L+2: B/L+3)

Price Formula Mean Quotes Platts USGC WB Jet 54 + CPG
Pricing period 3 days immediately after B/L date (B/L+1; B/L+2: B/L+3)

76.
The references in the price formulas to "Mean Quotes Platt's" referred to the average of the US Gulf Coast Waterborne price assessments reported by S&P Global Platt's for various petroleum products for the three days following the bill of lading date of each cargo. The price assessments under each of the specified headings are reported by Platt's in cents per gallon. See https://www.spglobal.com/commodityinsights/PlattsContent/_assets/_files/en/our-methodology/methodology-specifications/americas-refined-oil-products-methodology.pdf
77.
The templates thus envisioned the submission of bids with a price formula based on the price assessments reported by Platt's for the three days following the bill of lading date plus a premium to be filled in by the bidder to be expressed in cents per gallon.

B. PRH's bid package

78.
On April 30, 2020, at 9:34 am PRH submitted its bid package, a 29-page document which was provided to the Panel on June 23, 2022. At pages 3, 6 and 9, the bid package contained, on PRH letterhead, completed templates for each product under the heading "Bordereau des Prix Unitaire." Next to "Price Formula," the completed templates stated, respectively:

Gasoil (diesel)

Price Formula Mean Quotes Platt's USGC WB No.2 : $ 17.9 + $ 6.55 (Shipping, insurance and 5% annual interest rate on credit financing) CPG

Mogas 95

Price Formula Mean Quotes Platt's USGC WB MOGAS 87: $ 27.11 + $ 8.11 (Shipping, insurance and 5% annual interest rate on credit financing) CPG

Jet 54

Price Formula Mean Quotes Platt's USGC WB Jet 54: $ 16.32 + $ 6.28 (Shipping, insurance and 5% annual interest rate on credit financing) CPG

79.
As can be seen, rather than simply referring to the relevant Platt's price assessment, each completed template submitted by PRH included a dollar figure which, we assume, was based on the Platt's assessment for each product on or about the date of the bid.
80.
Although the letters "CPG" appeared at the end of the price formula for each product in PRH's completed template, it is evident from a review of the entire bid package (and subsequent events) that PRH's bid was intended by PRH to be in dollars per barrel.
81.
First, the figures appearing in each of the completed templates following the reference to the Platt's price assessment were the current Platt's price for each product in dollars per barrel.
82.
Second, on the page following the completed template for each product, PRH's bid package included under the heading, "Cadre du Bordereau des Prix," PRH summarized its bid for that product in dollars per barrel:

Item Description Unité Prix unitaire CIF Prix unitaire en lettre
001 GASOIL Barils $24.45 Vingt-Quatre dollars et 45/100
002 MOGAS 95 RON Barils $35.22 Trente-Cinq dollars et 22/100
003 Jet Fuel Barils $22.60 Vingt-Deux dollars et 60/100

83.
The unit price given for each product is the sum in dollars per barrel of the current Platt's price plus the premium, also in dollars per barrel, set out in the completed template for each product.
84.
PRH's bid package next sets out for each product an estimate, based on the above unit prices, of the price for the quantity in barrels to be delivered each month:

Item Désignation Quantité Unité Prix unitaire CIF Prix total
001 GASOIL 550,000 BBLS $24.45 $13,447,500.00
002 MOGAS 95 RON 375,000 BBLS $35.22 $13,207,500.00
003 Jet Fuel 75,000 BBLS $22.60 $1,695,000.00

There follows an estimate of the six-month total for each product:

Total sur 6 mois [Gasoil] 6 mois $13,447,500.00 $80,685,000.00
Total sur 6 mois [MOGAS] 6 mois $13,207,500.00 $79,245,000.00
Total sur 6 mois [Jet Fuel] 6 mois $1,695,000.00 $10,170,000.00

85.
The total of the above amounts is $170,100,000.00. The first page of PRH's bid package makes it clear that this was PRH's estimate of the total amount of the contract, stating:

After reviewing the Tender documents, we propose to sign the project contract for APRIL 2020 PETROLEUM PRODUCTS MARKET (DGBMPAD) in accordance with the technical specifications accompanying this Bid for the Contract Amount of $170,100,000.00 US Dollars, (One Hundred and Seventy Million One Hundred Thousand and 00/100 Dollars)

86.
Hence, despite the reference to "CPG" in the completed template, it is evident from an examination of the entire PRH bid package that, for each product, PRH intended to bid the relevant Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. The Panel has not received any evidence as to why "CPG" was left in the template. Counsel for Respondents did not cross-examine PRH's witnesses on this point, despite opportunities to do so.

C. April 30, 2020, Opening of the Bids

87.
On April 30, 2020, between 11:08 am and 11:43 am, the bids were opened and were recorded by BMPAD in pre-printed forms, one for each product16. See Saint-Fleur Aff. ¶ 3, Exhibit A. Each form contained a table in which the terms of the bids were handwritten in columns, one column beneath the name of each bidder ("soumissionnaire"), with a signature box for the respective bidder at the bottom of each column. The bids of PRH for each product were recorded as follows:
88.
The distinctive signature at the bottom of each of the columns containing PRH's bids appears to be to that of Gesner Champagne of PRH (see the signature on his affidavit of January 6, 2021, submitted in this arbitration). The price formulas for each product in the forms signed by Mr. Champagne were, respectively, Platt's + 8.44 cents per gallon for gasoline, Platt's plus 6.28 cents per gallon for jet fuel and Platt's plus 6.44 cents per gallon for diesel. This was different from PRH's intended bid based on a review of PRH's bid package. It is unclear from the record why Mr. Champagne signed these forms. Respondents made no submissions on this point and counsel for Respondents did not take advantage of opportunities to cross-examine PRH's witnesses on this issue.

D. May 6, 2020, Notification of Outcome of the Tender

89.
On April 30, 2020, the offers were evaluated by a commission of three BMPAD officials established for the purpose under the high supervision of the Direction of Fiscal Inspection of the Ministry of Economy and Finance. By email on May 6, 2020, Yveland Chery of BMPAD transmitted to all bidders a document entitled "Rapport d'évaluation des offres" (the "Report") which described the bidding process and announced that PRHs offer had been selected. Exhibit DDDD. The Report described PRH's offer for each product as follows:

4.1 Pour Mogas 95

Entreprise Description de l'offre Termes de payment Terme de credit
PREBLERISH Mean Platt's USGC WB Mogas87 + 8.11 CPG NOR+120 jours Lettre de crédit

4.2 Pour Gasoil [Diesel]

Entreprise Description de l'offre Termes de payment Terme de credit
PREBLERISH Mean Platt's USGC WB NO2 + 6.55 CPG NOR+120 jours Lettre de credit

4.3 Pour JET 54

Entreprise Description de l'offre Termes de payment Terme du credit
PREBLERISH Mean Platt's USGC WB Jet54 + 6.28 CPG NOR+120 jours Lettre de credit

90.
As noted above, it is evident from reviewing PRH's entire bid package that PRH intended to bid the relevant Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel.
91.
However, the description in the Report of PRH's bid appears to be based on the summary of bids signed by Mr. Champagne on April 30, 2020. It therefore described PRH's bid as the relevant Platt's price plus 6.55 cents per gallon for diesel, 8.11 cents per gallon for gasoline and 6.28 cents per gallon for jet fuel. Again, counsel for Respondents did not cross-examine PRH's witnesses on this point, despite opportunities to do so.
92.
The Report reveals that PRH's intended bids, based on a comparison of premiums in dollars per barrel, would have been competitive with the other bids submitted as to price and, importantly. if not more importantly given Haiti's distress, was more favorable than any of the other bids on payment terms. Putting aside the bids of Remito Transport S.A, which was disqualified, PRH's bids on a premium per barrel basis would have been the lowest for diesel and jet fuel and the second lowest for gasoline. PRH's payment terms were NOR + 120 days. On the importance of the favorable payment terms proposed by PRH, the Report stated: "The contract is therefore awarded to the company PREBLE-RISH HAITI S.A arriving in second position in the ranking and which actually evolved in the field of petroleum products, especially since this company grants a loan of 190 [sic] days which constitutes a serious and sacred advantage for the State." Exhibit DDDD, Section VIII, page 8.

E. PRH's May 10, 2020, submission of a Draft Contract

93.
On May 10, 2020, at 10:43 a.m. Mr. Leconte of PRH sent an email (Exhibit EEEE) to Mr. Saint-Fleur. Mr. Leconte's email did not refer to the apparent discrepancy between the price formula that PRH intended to bid and the price formula that BMPAD announced to all the bidders that it had accepted. The May 10 letter stated:

Please receive the model contract that we wish to use for the three products to be provided over a period of 6 months by Preble Rish Haiti (PRH). Attached are 5 documents:

-A Word version of the document for your review and comments along with the appendix l specific to each of the three products.

-A PDF version of the original document in English which has been approved by our financial institution in the United States.

Following your approval of the terms (tomorrow) we will use the model contract to produce three contracts, one for each of the 3 products. We will share with you on the same occasion the request for the letter of credit which must be sent to the Ministry of Finance before going to the BRH.

As mentioned yesterday in our conversation, on the part of PRH, all the arrangements have been concluded so that we can begin the performance of the contract once the preliminaries have been concluded and we have received from BMPAD a complete report of the existing national stock and the designation of two persons from your institution who will be our contacts, as quoted in our correspondence of May 7.

On behalf of the entire PRH team in Haiti and abroad, I thank BMPAD for this opportunity which is given to us to work on this project of national scope and public17 security.

94.
Attached to Mr. Leconte's May 10 email was a draft model contract to be customized for each of the three Contracts. Under the heading "Prix," PRH's draft Contract provided:

PRIX

La méthode de détermination du prix pour chaque gallon de produit est indiquée à l'annexe 1. Le vendeur facturera l'acheteur pour chaque expédition au plus tard au moment où il fournit un avis de mise en état (NOR).

Translation:

PRICE

The method of determination of price for each gallon of product is indicated in appendix 1. The seller shall invoice the buyer for each shipment latest at the moment when it provides a notice of readiness (NOR)

95.
The attachments to PRH's May 10, 2020, email also included a draft "Annexe 1" for each product. Under the heading "Prix d'achat" (Purchase price") the draft appendices for each product provided respectively as follows:

Gasoline

Prix d'achat : Le prix d'achat pour chaque expédition de produit sera calculé par gallon et sera la somme de (A) le prix pertinent de Platt PGACUOO par gallon plus (B) charge de transport, financement et assurance de USD8.11 par baril, plus (C) un premium de USD 0.0811 par gallon.

Translation:

Purchase price: The purchase price for each shipment of product will be calculated by gallon and shall be the sum of (A) the applicable price of Platt PGACUOO18 per gallon plus (B) a charge for transportation and insurance of USD 8.11 per barrel, plus (C) a premium of USD 0.0811 per gallon.

Diesel

Prix d'achat : Le prix d'achat pour chaque expédition de produit sera calculé par gallon et sera la somme de (A) le prix pertinent de Platt POAEEOO Gasoil No. 2 (diesel) par baril plus (B) charge de transport, financement et assurance de USD6.55 par baril, plus (C) un premium de USD 0.0628 par gallon.

Translation:

Purchase price: The purchase price for each shipment of product will be calculated by gallon and shall be the sum of (A) the applicable price of Platt POAEEOO Gasoil No. 2 (diesel) per gallon plus (B) a charge for transportation and insurance of USD 6.55 per barrel, plus (C) a premium of USD 0.0655per gallon.

Jet Fuel

Prix d'achat : Le prix d'achat pour chaque expédition de produit sera calculé par gallon et sera la somme de (A) le prix pertinent de Platt pertinent PJABMOO Jet Kero 54 par baril plus (B) charge de transport, financement et assurance de USD6.28 par baril, plus (C) un premium de USD 0.0628 par gallon.

Translation:

Purchase price: The purchase price for each shipment of product will be calculated by gallon and shall be the sum of (A) the applicable price of Platt PJABMOO Jet Kero 54 per gallon plus (B) a charge for transportation and insurance of USD 6.28 per barrel, plus (C) a premium of USD 0.0628per gallon.

96.
The price formula in PRH's draft appendix to each draft contract transmitted to BMPAD on May 10, 2020, thus provided that the unit price for each product was the relevant Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel; plus an additional premium for each product of 6.55 cents per gallon for diesel, 8.11 cents per gallon for gasoline and 6.28 cents per gallon for jet fuel. The Panel has not received any evidence as to why PRH decided to add to its original bid for each product an additional premium amount in cents per gallon equal to the cents per gallon premium amounts contained in the templates at page 3, 6 and 9 in its bid package and in the summary of its bid signed by Mr. Champagne on April 30, 2020. Respondents did not take advantage of the opportunity to cross-examine PRH's witnesses and have made no submissions on this point.

F. Negotiation of the Contracts

97.
On May 11, 2020, having received no response from BMPAD, PRH re-sent its May 10 email and asked for BMPAD's feedback on the draft contracts submitted for BMPAD's review. Exhibit FFFF. Also on May 11, 2020, PRH sent a separate email to BMPAD with a proposed form of the Standby Letter of Credit that BMPAD would be required to provide under the three proposed contracts.. Exhibit GGGG
98.
At 9:41 am on May 12, 2020, PRH sent another email to BMPAD requesting that BMPAD acknowledge receipt of the draft contracts. At 12:00 p.m. on May 12, 2020, BMPAD finally acknowledged receipt of PRH's draft contracts and promised to get back to PRH later that day. Exhibit HHHH. At 3:56 p.m. PRH received an official letter from BMPAD requesting the presence of PRH's representative at BMPAD's office before the end of the day to sign the three fuel contracts. Exhibit IIII
99.
Mr. Leconte, Mr. Champagne and Ms. Brunet of PRH went to BMPAD's office and were presented with draft contracts for signature which, in their view, were substantially different in substance and in form from the drafts that PRH had sent to BMPAD. PRH asked BMPAD to reconsider adding in the clauses from PRH's draft contract addressing arbitration, foreign corrupt practices, and the pricing structure that PRH had proposed in its draft Appendix I to each of the Contracts. Brunet Aff. ¶ 7. According to PRH, following several hours of negotiations, BMPAD agreed on May 12, 2020, to include certain of the items requested by PRH, including the clauses requiring arbitration outside of Haiti, addressing compliance with the foreign corrupt practices laws of the United States and the pricing structure provided by PRH in Appendix 1 to each of the Contracts. Id. According to PRH, the negotiations on May 12, 2020, ended with BMPAD agreeing to revise its contracts accordingly and to forward them to PRH the same day. Id. BMPAD submitted no evidence and made no submissions contradicting the testimony of PRH's witnesses on what took place at the meetings at PRH's offices on May 12.
100.
At 12:41 p.m. on May 13, 2020, BMPAD sent to PRH an email with revised drafts of the contracts. Exhibit XX. With respect to price, Article 6.1 of each draft contract provided, respectively:

6.1. Gasoil - Le prix du diesel sera calculé au prix platts USGC WB no.2 chargé de USD 6.55 CPG pendant toute la durée du contrat, ce, trois (03) jours après le B/L. Voir ANNEXE 1

Translation:

6.1. Gasoil – the price of diesel will be calculated at the platts price USGC WB no.2 plus USD 6.55 CPG throughout the term of the contract, that, three days after the B/L. See Appendix 1

* * *

6.1. Mogas (gazoline) - Le prix du mogas 95 (Gazoline) sera calculé au prix platts USGC WB MOGAS 87 chargé de USD 8.11 pendant toute la durée du contrat, ce, trois (03) jours après le B/L. Voir ANNEXE 1

Translation:

6.1. Mogas (gasoline) – The price of mogas 95 (Gasoline) will be calculated at the platts price USGC WB MOGAS 87 plus USD 8.11 CPG throughout the term of the contract, that, three days after the B/L. See Appendix 1

* * *

6.1. Jet Fuel - Le prix du [jet fuel] sera calculé en application du prix platts USGC WB JET 54 chargé de USD6.28 CPG pendant toute la durée du contrat, ce, trois (03) jours après le B/L. Voir annexe 1

Translation:

6.1. Jet Fuel – The price of [jet fuel] will be calculated at the platts price USGC WB JET 54 plus USD 6.28 CPG throughout the term of the contract, that, three (03) days after the B/L. See APPENDIX I

101.
Although each draft Contract sent by BMPAD with its May 13 email contained a reference to Appendix 1, none of the BMPAD draft Contracts included an Appendix 1 or the pricing formula contained in PRH's proposed Appendix 1. Nor did they contain the other provisions urgently requested by PRH. Accordingly, in an email to BMPAD at 2:05 pm on May 13, 2020, Ms. Brunet wrote:

Dear Madame-

After reviewing the document shared with us at 12:41 pm, we notice that no change discussed yesterday was taken into consideration (not a comma), despite the long working session which required several hours of discussion between the members of our two teams and the arguments raised by PRH which were approved for insertion by the Director General in the presence of all. We came out of this meeting in perfect harmony with your team and the revised document should have reached us yesterday or early this morning for a final read and signing.

At this stage of the discussions, we return to square zero.

Since this new offer was awarded to PRH, we have consistently demonstrated our good faith and our desire to start this sensitive contract on a good basis, the success of which depends on the potential for collaboration between PRH and BMPAD. We are therefore counting on the frank collaboration and dynamism of each of the BMPAD member.

Exhibit YY (emphasis added).

102.
PRH returned to BMPAD's office on May 13, 2020, for what PRH described as another lengthy in-person negotiation session. Brunet Aff. ¶8. According to PRH, BMPAD again agreed to include the missing provisions, including the pricing provisions of PRH's proposed Appendix 1, revised the Contracts accordingly, and demanded that PRH immediately sign the revised versions. Id.
103.
PRH advised that it wished to have the final Contracts reviewed by counsel overnight. Id. BMPAD insisted that the Contracts had to be signed immediately because of the fuel crisis. Thus, at approximately 11 p.m. on May 13, 2020, PRH and BMPAD signed the Contracts as presented by BMPAD. Id. Mr. Saint-Fleur, Director General, signed on behalf of BMPAD. Mr. Leconte, President, signed on behalf of PRH. In addition to signing on the signature line, Mr. Saint-Fleur signed, and Mr. Leconte initialed, every page of each Contract, including Appendix 1 of each Contract. The Panel has not received any evidence or submissions from Respondents contradicting the testimony of PRH's witnesses on what took place at the meetings at PRH's offices on May 13. Counsel for Respondents did not cross-examine PRH's witnesses on these points, despite opportunities to do so.
104.
The three signed Contracts (Leconte Aff. Exhibits A, B and C) each contained the three items upon which PRH had insisted: international arbitration provisions, a provision requiring compliance with international corrupt practice laws and an Appendix 1 for each of the Contracts providing that the price would be the relevant Platt's for each product plus: $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel.

G. Price Provisions of the Contracts

105.
Regarding price, the final signed Contracts for each product contained the following provisions:

i. Price provisions of the diesel Contract

106.
Article 6 of the diesel supply contract (Exhibit A) entitled "Price" included Article 6.1 which provided:

6.1.Gasoil - Le prix du diesel sera calculé au prix platts USGC WB no.2 charge du premium de USD 6.55 CPG pendant toute la durée du contrat, ce, trois (03) jours après le B/L. Voir ANNEXE I

Translation:

6.1. Diesel - The price of diesel will be calculated at the USGC WB no.2 Platt's price plus the premium of USD 6.55 CPG throughout the duration of the contract, that three (03) days after the B / L. See APPENDIX I

107.
Appendix 1 of the diesel supply contract, entitled "Specific Conditions of the Diesel Supply Contract" provided, with respect to price

Prix d'achat : Le prix d'achat pour chaque expédition de produit sera calculé par gallon et sera la somme de (A) le prix pertinent de Platt USGC WB No.2 (Diesel) par baril (B) charge de transport, financement et assurance de USD6.55 par baril.

Translation:

Purchase price: The purchase price for each shipment of product will be calculated per gallon and will be the sum of (A) the relevant USGC WB No. 2 (Diesel) Platt's rate per barrel plus (B) freight charge, finance, and insurance of USD 6.55 per barrel.

ii. Price provisions of the jet fuel Contract

108.
Article 6 of the jet fuel supply Contract (Exhibit B) entitled "Price" included Article 6.1 which provided:

6. l. Jet54 - Le prix du Jet sera calculé au prix platt's USGC WB JET54 charge du premium de USD 6.28 CPG pendant toute la durée du contrat, ce, trois (03) jours après le B/L .Voir ANNEXE I

Translation:

6.1. Jet54 - The price of the Jet will be calculated at the USGC WB JET54 Platt's rate plus the premium of USD 6.28 CPG for the duration of the Contract, this, three (03) days after the B / L. See APPENDIX I

109.
Appendix 1 of the jet fuel supply contract, entitled "Specific Conditions of the Jet Fuel Supply Contract", provided with respect to price:

Prix d'achat : Le prix d'achat pour chaque expédition de produit sera calculé par gallon et sera la somme de (A) le prix pertinent de Platt pertinent USGC WB Jet 54 par baril (B) charge de transport, financement et assurance de USD6.28 par baril.

Translation:

Purchase price: The purchase price for each shipment of product will be calculated per gallon and will be the sum of (A) the relevant USGC WB Jet 54 Platt's rate per barrel (B) freight, finance and insurance charge of USD 6.28 per barrel.

iii. Price provisions of the gasoline Contract

110.
Article 6 of the gasoline supply Contract entitled "Price" included Article 6.1 which provided:

6. l. Mogas95 - Le prix du Mogas 95 sera calculé au prix platts USGC WB Mogas87 charge du premium de USD 8.11 CPG pendant toute la durée du contrat, ce, trois (03) jours après le B/L. Voir ANNEXE I

Translation:

6.1. Mogas95 - The price of Mogas 95 will be calculated at the USGC WB

Mogas87 Platt's rate charged with the premium of USD 8.11 CPG for the duration of the Contract, this, three (03) days after the B/L. See APPENDIX I

111.
Appendix I of the gasoline supply Contract entitled "Specific Conditions of the Gasoline Supply Contract" provided, with respect to price:

Prix d'achat : Le prix d'achat pour chaque expédition de produit sera calculé par gallon et sera la somme de (A) le prix pertinent de Platt USGC WB MOGAS 87 par gallon (B) charge de transport, financement et assurance de USD8.11 par baril.

Translation:

Purchase price: The purchase price for each shipment of product will be calculated per gallon and will be the sum of (A) the relevant USGC WB MOGAS 87 Platt's rate per gallon (B) freight, finance, and insurance charge of USD 8.11 per barrel.

112.
On May 15, 2020, PRH wrote to BMPAD regarding the proposed standby letter of credit that BMPAD was required to provide under the Contracts. The amount of the proposed standby letter of credit was USD 225,750,000, which was based on the cost estimate of a six (6) month supply using the pricing structure in Appendix 1 to each of the Contracts – i.e. the relevant Platt's for each product plus: $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel.

H. Amendment No. 1 to the Contracts

113.
On May 19, 2020, the parties entered into Amendment No. 1 to each of the Contracts. In Amendment No. 1, BMPAD acknowledged that its failure to provide the standby letter of credit constituted a default under the Contracts. Amendment No. 1 provided that, with respect to the first monthly shipments (i.e., the shipments to be specified in Order 001), PRH would waive the default if BMPAD made a prepayment of $37,625,000 within 3 days of receipt of PRH's Provisional Invoice. According to PRH, the prepayment amount used in Amendment No. 1 was calculated in accordance with the formula set out in Appendix 1 of each Contract – i.e., the recent Platt's price for each product plus: $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Brunet Aff. ¶ 13-14
114.
In addition to the above-mentioned provision, Amendment No. 1 provided, inter alia, that instead of calculating the price of the products based on the mean of the Platt's assessments on the three days following the bill of lading date, the price of each product would instead be calculated based on the Platt's assessments for the bill of lading date.

I. Order 001

115.
On or about May 19, 2020, BMPAD provided PRH with Order 001 specifying the quantities required for June 2020. (Leconte Aff. ¶ 10). On May 19, 2020, PRH issued its Order 001 Provisional Invoice for the sum of $37,625,000. Leconte Aff. ¶ 11, Exhibit E. On May 22, 2020 BMPAD paid on account to PRH the sum of $37,625,000. Leconte Aff. ¶ 12, Exhibit F.
116.
On August 5, 2020, PRH issued Order 001 Final Invoice for the sum of $29,715,745.21 (Exhibit J) based on the quantities of Diesel, Gasoline and Jet Fuel delivered under that Order plus $187,466.15 in demurrage owed by BMPAD to PRH in respect of the carrying vessels.
117.
As shown in the Order 001 Final Invoice, the final price charged by PRH to BMPAD for Order 001 was calculated in accordance with the formula set out in Appendix 1 to each Contract – i.e., the Platt's price plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel.
118.
Subtracting the amount due from the amount of the prepayment received, Order 001 Final Invoice reflected a credit to the account of BMPAD with respect to Order No. 1 as of August 5, 2020, of $7,721,768.64. On March 3, 2021, PRH issued a further invoice to BMPAD in respect of Order 1 for deviation costs on the MT Citron ($35,226.48) and on the MT Alpine Light ($39,498.12) for a total of $74,724.60.

J. BMPAD's June 15, 2020, request that PRH sign an addendum

119.
On June 15, 2020, Mr. Saint-Fleur sent a letter to Mr. Leconte that read as follows:

The General Direction of the Monetization Office of the Development Assistance Programs (BMPAD) presents their compliments and transmits you for all useful purposes, in order for it to not be ignored, the statement of opening of the letters displaying the offer of the submitters including PREBLE-RISH HAITI S.A. for this market.

A mechanical error snuck into annex I of the contract during the transcription of this data and deserves being corrected by an addendum to this contract of which you are a signer on behalf of PREBLE-RISH HAITI S.A. Consequently, the General Direction of BMPAD invites you to sign the said addendum annexed to this letter and to send it back as soon as possible.

The General Direction of the Monetization Office of the Development Assistance Programs (BMPAD) relies on your diligence and renews, Mr. President, the assurance of their full collaboration.

Saint-Fleur Aff. Exhibit C.

120.
Respondents did not include in Exhibit C the attachment referenced in the June 15 letter. In any event, PRH did not agree to sign BMPAD's proposed addendum. To the contrary, as set out below, PRH continued to invoice for the products and BMPAD continued, until October 2020, to pay for the products in accordance with the pricing formula contained in Appendix 1 to each Contract -- – i.e., the Platt's price plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Counsel for Respondent did not cross-examine PRH's witnesses on this point, despite opportunities to do so.

K. June 25 Purchase Contract with Trafigura

121.
In addition, on June 25, 2020, PRH entered into a contract with Trafigura Pte Ltd (Exhibit PPP) (the "Trafigura Purchase Contract") for the purchase on a DAP Port au Prince basis of the following quantities of the products:

Diesel: Approximately 2,250,000 Barrels in Operational Tolerance
Gasoline Approximately 1,250,000 Barrels in Operational Tolerance
Jet Fuel Approximately 300,000 Barrels in Operational Tolerance

122.
The quantities to be purchased were sufficient to fulfill PRH's remaining obligations under the Contracts.
123.
Like the three Contracts, the products sold to PRH under the Trafigura Purchase Contract were priced based on the relevant assessments for those products for the bill of lading date published by Platts with a specified margin. The Trafigura Purchase Contract provided as follows with respect to the price of each product:

Diesel: The unit price in US Cents per Gallon DAP, one safe port/berth Port au Prince, Haiti shall be equal to the average of the Mean quotations for No.2 US Gulf Coast Waterbourne as published in Platts US Marketscan plus a differential of 9.75 (Nine Point Seven Five) US Cents per Gallon.
Gasoline The unit price in US Cents per Gallon DAP, one safe port/berth Port au Prince, Haiti shall be equal to the average of the Mean quotations for Unl 87 USGC Waterbourne (Platts) as published in Platts US Marketscan plus a differential of 11.50 (One Point Five Zero) US Cents per Gallon.
Jet Fuel The unit price in US Cents per Gallon DAP, one safe port/berth Port au Prince, Haiti shall be equal to the average of the Mean quotations for for Jet 54 Gulf Coast Waterbourne as published in Platts US Marketscan plus a differential plus a differential of 17.00 (One Seven Point Zero Zero) US Cents per Gallon.

124.
By converting to dollars per barrel the premium over the Platts assessments charged by Trafigura to PRH, and subtracting it from the premium over the same Platts assessments charged by PRH to BMPAD in accordance with Appendix 1 one is able to calculate PRH's margin in dollars per barrel on each product:

Appendix 1 Margin ($/barrel)

Product Premium Trafigura sale to PRH ($/barrel) Premium PRH sale to BMPAD ($/barrel) PRH Margin ($/barrel)
Diesel $4.095 $6.55 $2.455
Gasoline $4.83 $8.11 $3.28
Jet Fuel $7.14 $6.28 ($0.86)

125.
Thus, using the price formulas in Appendix 1 of each Contract, PRH would have obtained a profit on diesel and gasoline and sustained a relatively small loss on jet fuel. Multiplying the above margins by the full contract quantities of each product,19 PRH would have made an aggregate profit from the three Contracts of approximately $15 million as shown in the below table:

Appendix 1 Profit/Loss

Produit Quantity per month in barrels Months Total barrels PRH Margin ($/barrel) Total PRH Margin
Diesel 550,000.00 6 3,300,000 $2.455 $8,101,500.000
Gasoline 375,000.00 6 2,250,000 $3.28 $7,380,000.00
Jet Fuel 75,000.00 6 450,000 ($0.86) ($387,000.00)
Total $15,094,500.00

126.
As noted above, in its May 15, 2020, letter to BMPAD regarding the standby letter of credit, PRH estimated that the total value of six months of supply of all three products based on the Platt's prices at the time was US$225,750,000. Hence, based on that estimate, PRH's average margin on the three products over the six-month term of the Contracts would have been approximately 6.7 percent of their aggregate sale price.
127.
If, instead, PRH had charged to BMPAD the cents per gallon premium that appears in Clause 6.1 of each Contract, PRH would have sustained a significant loss on every barrel of all three products:

Clause 6.1 Margin ($/barrel)

Product Premium Trafigura sale to PRH ($/barrel) Premium PRH sale to BMPAD ($/barrel) PRH Margin ($/barrel)
Diesel $4.095 -$2.751 ($1.344)
Gasoline $4.83 -$3.4062 ($1.4238)
Jet Fuel $7.14 -$2.6376 ($4.5024)

128.
Multiplying these negative margins by the full contract quantities of each product, PRH would have made a loss over the six-month term of the Contracts of nearly $10 million as shown in the below table:

Clause 6.1 Profit/Loss

Produit Quantity per month in barrels Months Total barrels PRH Margin ($/barrel) Total PRH Margin
Diesel 550,000.00 6 3,300,000 ($1.344) ($4,435,200.00)
Gasoline 375,000.00 6 2,250,000 ($1.4238) ($3,203,550.00)
Jet Fuel 75,000.00 6 450,000 ($4.5024) ($2,026,080.00)
Total ($9,664,830.00)

129.
As discussed below, this analysis is useful in evaluating the intent of the parties when they entered into the Contract.

L. Order 002

130.
On or about June 22, 2020, BMPAD provided PRH with Order 002 specifying quantities for delivery in July 2020. (Leconte Aff. ¶ 13). On June 22, 2020, PRH issued its Order 002 Provisional Invoice for the sum of $48 million. Exhibit G (Leconte Aff. ¶ 14). According to PRH, the prepayment amount used in Order No. 2 Provisional Invoice was calculated in accordance with the formula set out in Appendix 1 of each Contract – i.e., the recent Platt's price for each product plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Brunet Aff. ¶ 13-14. On June 24, 2020, BMPAD made a payment of $48 million. Exhibit H (Leconte Aff. ¶ 15). On August 17, 2020 PRH issued Order 002 Final Invoice in the sum of $40,790,686.16 (Exhibit N), based on the quantities of Diesel, Gasoline and Jet Fuel delivered under that Order in July 2021, plus $195,829.82 in demurrage owed by BMPAD to PRH in respect of the carrying vessels. As shown in the Order 002 Final Invoice, the final price for each of the three products charged by PRH to BMPAD for Order 001 was calculated in accordance with the formula set out in Appendix 1 to each Contract – i.e., the Platt's price plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Subtracting the amount due from the amount of the prepayment received. Order 002 Final Invoice reflected a credit to the account of BMPAD with respect to Order No. 2, as of August 17, 2020, of $7,013,464.02.

M. Order 003

131.
On or about July 31, 2020 BMPAD provided PRH with Order 003. On July 31, 2020, PRH issued Order 003 Provisional Invoice for the sum of $50,391,937.20. Again, according to PRH, the prepayment amount used in Order No. 3 Provisional Invoice was calculated in accordance with the formula set out in Appendix 1 of each Contract – i.e., the recent Platt's price for each product plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Brunet Aff. ¶ 13-14. On August 7, 2020 BMPAD made payments of $21 million (Exhibit L) and $15 million (Exhibit M) for a total of $36 million. On September 23, 2020, PRH issued Order 003 Final Invoice for the sum of $45,669,623.05 based on the Contract price of the quantities of Diesel, Gasoline and Jet Fuel delivered under that Order in August 2021 plus demurrage of $270,544.40 owed by BMPAD to PRH under Article 16.7 of the Contracts in respect of the carrying vessels (Exhibit R). As shown in the Order 003 Final Invoice, the final prices charged by PRH to BMPAD for Order 003 for each product was calculated in accordance with the formula set out in Appendix 1 to each Contract – i.e., the Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Subtracting the amount of prepayment received from the amount due Order 003 Final Invoice reflected a debit to the account of BMPAD with respect to Order No. 3 as of September 23, 2020, of -$9,944,669.95 (Exhibit S)

N. Order 004

132.
On or about August 28, 2020, BMPAD provided PRH with Order 004. On August 28, 2020, PRH issued Order 004 Provisional Invoice for the sum of $46,734,889.74. Exhibit P. Again, according to PRH, the prepayment amount used in Order No. 4 Provisional Invoice was calculated in accordance with the formula set out in Appendix 1 of each Contract – i.e., the recent Platt's price for each product plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Brunet Aff. ¶ 13-14. On September 11, 2020, BMPAD made a payment of $25 million. Exhibit Q. On 2 October BMPAD made a further payment of $24,999,980 of which $21,734,889.74 was applied to Order 004 with the remaining $3,265,070.26 to be applied to Order 005. On or about October 1, 2020, PRH issued Order 004 Final Invoice for the sum of $44,071,612.74 (Exhibit T) based on the Contract price of the quantities of Diesel, Gasoline and Jet Fuel delivered under Order 004 at the end of August and in September 2021, plus demurrage (identified as partial) owed by BMPAD to PRH on the carrying vessels of $136,243.35 plus a deviation cost (also identified as partial) of $183,473.80. Subtracting the amount of the prepayment applied to Order 004 from the amount due, Order 004 Final Invoice reflected a credit to the account of BMPAD with respect to Order No. 4 as of October 1, 2020of $2,343,559.85. As shown in the Order 004 Final Invoice, the final price charged by PRH to BMPAD for Order 003 was calculated in accordance with the formula set out in Appendix 1 to each Contract – i.e., the Platt's price plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. (On November 6, 2021, PRH issued a revised Final Invoice for Order 004 showing a revised demurrage charge of $491,145.01. All other values were unchanged.)
133.
According to PRH, the foregoing pattern of issuance and payment of invoices established a course of performance between the parties. As Ms. Brunet stated in her Affirmation:

[BMPAD] would provide an order for specific quantities of fuel, PRH would provide a proforma invoice based on the prices in Appendix 1, GOH would prepay for the order, PRH would fulfill the order and the parties would then reconcile the exact quantities delivered with the prepayment and invoice value based upon the agreed upon pricing structure in Appendix 1 [to each Contract].

Brunet Aff. ¶ 16.

O. September 4, 2020, letter from BMPAD

134.
In a letter dated September 4, 2020 (St. Fleur Aff. Exhibit E) BMPAD wrote to Mr. Leconte as follows:

The General Directorate of the Office for Monetization of Development Aid Programs (BMPAD) has just acknowledged receipt of your letter of September 04, 2020 in which you wished to notify BMPAD "that unless you receive full payment of the invoice relating to order N° 4 before the banks close today, Preble Rish Haiti S.A. will not be able to continue with the delivery of gasoline for the period scheduled from September 06 to 08, 2020 ..."

The General Management of BMPAD, while taking note of this new ultimatum with incalculable consequences, hastens to inform you, Mr. President of PRH, that this took place in a context where, in view of the calculations and of course of yours also, your company still owes to the Haitian State through the BMPAD several million American dollars.

With this in mind, this General Management, while awaiting a reconciliation of its account statements with yours and in the constant goal of protecting the superior interests of the State, intends to take all measures to ensure the availability of the product on the market.

P. Order 005

135.
On September 29, 2020, PRH received BMPAD's Order 005 specifying the product quantities for delivery in October. On October 1, 2020, PRH issued its provisional invoice for Order 005 in the amount of $48,721,905.54. On October 5, 2020, BMPAD submitted a revised Order 005 (Exhibit BB) modifying the delivery windows with the following quantity breakdown and timeline:

o 49,000 barrels of jet A1 / 12-14 Oct

o 155,500 barrels of gasoline / 15-17 Oct

o 250,000 barrels of diesel / 19-21 Oct

o 155,500 barrels of gasoline / 30 Oct-1 Nov 2020

o 250,000 barrels of diesel / 2-4 Nov 2020

136.
On October 5, 2020, PRH provided BMPAD with a revised provisional invoice for Order 005, applying $3,265,070.26 of the payment received from BMPAD on October 2, 2020, to reduce the amount of the Provisional Invoice to $45,456,835.28, and extending the deadline for its payment until October 7, 2020. Exhibit CC. In the ensuing days, PRH sent to BMPAD correspondence regarding the vessels that would carry the product to be delivered pursuant to Order 005. On October 6, PRH sent a reminder that payment of prior invoices was due. On October 7, 2020, PRH provided BMPAD with a revised delivery schedule in accordance with BMPAD's revised Order 005, noting that it had incurred certain costs to accommodate BMPAD's changes.
137.
On October 12, 2020, PRH sent shipping documents for the MT "Aquila", which had completed loading on 9 October 2020 of 164,494.37 barrels of Gasoline and the MT "Endeavor II" which had completed loading on September 29 -30 of 49,135.54 barrels of Jet Fuel and 95,002.37 barrels of diesel. Both vessels were due to arrive in Haiti on October 14, 2020. On October 12, 2020, PRH requested and received from BMPAD approval for the MT "Minerva Julie" which was ready to commence loading a cargo of 155,000 barrels of gasoline. On October 12, 2020, the MT "SM Osprey" completed loading a cargo of 189,767 barrels of diesel.
138.
The "Endeavor II" arrived in Haiti and tendered Notice of Readiness on October 13, 2020, at 19:30. The "Aquila L" arrived and tendered Notice of Readiness on October 14, 2020, at 00:30. On October 14, 2020, at approximately 13:42, the "Endeavor II" commenced the discharge of its cargo.

Q. BMPAD's failure to pay the Provisional Invoice for Order 005

139.
As of October 15, 2020, prepayment from BMPAD for the provisional invoice for Order 005 had still not been received. By email on October 15, 2020, PRH urgently requested immediate payment plus interest and noted that demurrage of $20,000 per day was being incurred on the MT "Aquila L" which was waiting offshore for payment prior to commencing discharge
140.
On October 16, 2020, PRH and BMPAD agreed that the second shipment of diesel fuel for Order 005 would be increased by 40,000 barrels provided that delivery was made on or about October 25, 2020. It was also agreed that the last shipment of product under the diesel fuel Contract would be on November 10, 2020. PRH again expressed its concern over the BMPAD's long delay in making payment. Exhibit MM (Leconte Aff. ¶ 57).
141.
On October 21, 2020, PRH again wrote to BMPAD requesting immediate payment of the provisional invoice for Order 005 and confirmed future shipment arrival dates of October 25, October 31 and November 10. Exhibit NN (Leconte Aff. ¶ 58).

R. Haitian court order granting conservatory lien over and requiring discharge of the "Aquila L" cargo

142.
As of October 22, 2020, BMPAD had not paid the provisional invoice for Order 005. Nevertheless, based on assurances from officials of the government that payment would be immediately authorized, PRH ordered the MT "Aquila L" into port. Although no payment had been received by nightfall, the "Aquila L" berthed and began discharging its cargo of 164,178.43 barrels of Gasoline. Exhibit OO (Leconte Aff. ¶ 59). On October 23, 2020, however, PRH learned that BMPAD was now refusing to pay PRH the amount due. PRH therefore instructed the "Aquila L to stop discharge at 06:16 that morning, by which time 49,991.95 barrels had been discharged. (Leconte Aff. ¶ 61).
143.
On or about October 25, 2020, PRH learned that BMPAD had obtained an ex parte court order granting to BMPAD a "conservatory lien" and a right to discharge the cargo of the "Aquila L". Pursuant to court order, the "Aquila L" resumed discharging at 21:18 on October 28, 2020 and all remaining product was discharged (Leconte Aff. ¶ 62).
144.
On October 25, PRH advised BMPAD that the "SM Osprey", the third shipment under Order 005, with 189,767 barrels of diesel fuel on board was scheduled to arrive in Haiti the next evening but would not enter Port-au-Prince until the situation with "Aquila L" was resolved.

S. BMPAD's October 27, 2020, letter to PRH asserting that PRH owed the State at least $8,543,224.38

145.
In a letter to PRH on October 27, 2020, BMPAD stated:

The General Management of the Office for Monetization of Development Aid Programs presents its compliments to you and wants to let you know that it has taken note of your company's refusal to deliver the entirety of the Mogas cargo despite the fact that PREBLE-RISH HAITI S.A. received from the Haitian State from May 2020 to today $171,625,000.00 (one hundred and seventy-one million six hundred and twenty five thousand USD) and that in view of the BMPAD calculations made on the basis of the offer submitted by your company recorded in the minutes of the opening of the envelopes on April 30, 2020 signed by your authorized representative in public session, PREBLE-RISH HAITI S.A. even when it would have delivered the entire cargo of 164,490 barrels of Mogas, would still owe the State $8,543,224.38 (eight million five hundred and forty three thousand two hundred and twenty four and 38 cents USD).

In view of all the above and pending the resolution of this dispute born of your stubbornness not to submit to BMPAD the related invoices in good and due form, and taking into account the position expressed by this Management in its letter of 15 June 2020, a copy of which is hereby attached, the General Management of BMPAD, while restraining itself to the provisions of the contract which took up the offer submitted and signed by your authorized representative on April 30, 2020, reserves the right to take such advantages with a view to continuing to supply the market with petroleum products.

Saint-Fleur Aff. Exhibit E-1.

T. Diversion of the "SM Osprey" and Cancellation of the "Minerva Julie"

146.
In a letter to BMPAD on November 9, 2020, PRH advised BMPAD:

As you know, the MT SM Osprey is carrying approximately 189,767 barrels of diesel that BMPAD ordered on September 29, 2020, as part of Order 5. That ship, which is the third one dispatched under Order 5, has been waiting in international waters for 13 days for BMPAD to make the required prepayment. To avoid a fuel shortage, we have made all preparations to direct the ship to discharge its cargo in Haiti in accordance with our contract, but only upon receipt of the required prepayment. As of today, BMPAD has failed to make the prepayment and has not responded to our letters asking it to do so.

Consequently, we are no longer able to keep this ship idle. If we do not receive the required payment by close of business on Tuesday, November 10, we must instruct the ship to go back. We will then sell the cargo to a third party. All of our costs and expenses will be for BMPAD's account.

Leconte Aff. Exhibit QQ.

147.
No further payment was received from BMPAD and the "SM Osprey" cargo was sent elsewhere.
148.
The "Minerva Julie" was due to load 155,000 barrels of gasoline, the fourth shipment under Order 5. According to PRH, because of BMPAD's failure to make the required prepayment, it was necessary to cancel the shipment but only after the vessel had been waiting for some considerable time to load its cargo.

U. Revised Final Invoice for Order 005 shipments

149.
On October 28, 2020, PRH issued a partial final invoice for Order 005 in the amount of $26,486,860.20 based on the Contract price of the quantities of the Products loaded on board the "Aquila L", "Endeavour II" and "SM Osprey". Exhibit RR (Leconte Aff. ¶ 65).
150.
As noted above, because of BMPAD's failure to pay, the "SM Osprey" did not discharge its cargo in Haiti. Therefore, on December 1, 2020, PRH issued a revised Final Invoice for Order 005 for the sum of $16,760,392.83 based on the contract prices of the quantities of products delivered under Order 005 aboard the "Aquila L" and the "Endeavor II" plus demurrage of $398,500 on those vessels.

IV. DISCUSSION

A. Is ROH bound by the Contracts and the agreement to arbitrate?

i. Position of Respondents in this arbitration and in state court proceedings on their petition to stay and PRH's cross-motion to compel

151.
Before proceeding to the substance of the parties' claims and counterclaims, we address a question that was raised for the first time after the final hearing on the merits and after the exchange of post hearing submissions: On February 23, 2022, the Panel received a letter from Elizabeth Wolstein of Schlam Stone & Dolan LLP20 stating that her firm, together with Madsen Law Firm, had recently been retained to represent ROH in connection with the arbitration. (Throughout the arbitration, Harris Bricken represented both ROH and BMPAD.) Ms. Wolstein asserted that ROH was not a party to the Contracts or to the arbitration agreement and requested that the Panel "clarify" that its August 6, 2021, PFA did not run against ROH and that ROH was not a respondent in this arbitration.
152.
In a March 14, 2022, response to Ms. Wolstein's letter, PRH asserted that the Panel should confirm that the PFA was issued against and binding upon ROH. In a March 25, 2022. reply, Ms. Wolstein disputed the grounds asserted by PRH and again urged the Panel to provide the clarification required. Later that day, there was a further brief exchange of correspondence between Ms. Wolstein and counsel for PRH on this subject.
153.
On April 1, 2022, the Panel declined to reopen the PFA for the requested clarification, concluding that it would be inappropriate to do so, but ruled that having received counsel's submissions, it would address these issues in its final award. We will now address and decide these21 issues.
154.
As noted above, PRH's Arbitration Notice was transmitted not only to BMPAD but also to the Minister of Economy and Finance of the Republic of Haiti and demanded arbitration against the "Republic of Haiti, by and through its agent Bureau de Monétisation de Programmes d'Aide au Développement"
155.
On December 14, 2020, ROH along with BMPAD appeared in this arbitration proceeding through counsel of record Harris Bricken. Dan Harris, a partner in that firm, stated:

We are counsel for the Government of Haiti (GOH) and its Bureau de Monétisation de Programmes d'Aide au Développement (BMPAD) and this letter is in response to the arbitration you purport to have brought against BMPAD.

Mr. Harris's letter objected to the arbitration and demanded that PRH dismiss it, failing which Harris Bricken would seek relief in the appropriate court.

156.
Harris Bricken also appeared for and represented both ROH and BMPAD in related state court proceedings. On December 20, 2020, Harris Bricken filed a petition in the Supreme Court of the State of New York, New York County, on behalf of both ROH and BMPAD, seeking an Order, pursuant to CPLR § 7503(b), staying this arbitration upon the grounds that PRH's demand for arbitration was procedurally deficient and that, under Haitian law, the arbitration clause in the Contracts was invalid. Of note is the second sentence of paragraph 4 of the Petition to Stay the Arbitration which states (emphasis added): "Petitioners [i.e., ROH and BMPAD] have a contract for product with Respondent." The petitioners simultaneously filed a motion for a temporary restraining order and a preliminary injunction to halt proceedings in this arbitration.
157.
PRH opposed Respondents' state court motions and filed a cross-motion to compel ROH and BMPAD to arbitrate.
158.
On April 23, 2021, Harris Bricken submitted on behalf of both ROH and BMPAD in this arbitration the Respondents' Initial Statement of Defense, Counterclaims, Reservation of Rights, and Response to Request for Security ("BMPAD Defense") together with the Saint-Fleur Aff. and appended Exhibits. Respondents' April 23 submissions did not assert or reserve ROH's right to assert, that the motion to compel ROH to arbitrate should be denied because ROH was a non-signatory and not bound by the Contracts or the agreement to arbitrate.
159.
In a letter to the Panel, dated July 16, 2021, seeking a delay in the arbitration proceedings, Harris Bricken again asserted that ROH was its client and that ROH was overseeing and directing Harris Bricken's conduct of the arbitration and related proceedings:

This is the second large litigation matter on which our law firm has worked for the Government of Haiti (the prior one involved a $50 million claim) and we also have worked with Government of Haiti on various transactional matters as well.

In all of these matters, our work was always overseen and directed by President Moise and his death means we now have nobody to whom we can turn for instruction/direction. He was always the ultimate decision-maker on anything of any importance and his death has paralyzed pretty much everything for us.

160.
On July 18, 2021, Harris Bricken again wrote to the Panel confirming that its instructions came directly from the President of Haiti, this time in connection with a proposed motion to vacate a Rule B attachment obtained by PRH:

BMPAD intends to file a motion to vacate that attachment, but it has been delayed in that due to the assassination of the Government of Haiti's president. We received approval from the president to file this motion before his assassination, but we were greatly slowed in terms of securing declarations from relevant personnel due to the assassination and the chaos that ensued as a result of it.

161.
On July 22, 2021, Harris Bricken again wrote to the Panel that the firm was taking direction from the President of Haiti, stating:

We note that as these words are being written, Haiti is burying its fallen President. Because of his tragic and untimely assassination, BMPAD requested a stay of any proceedings relative to this dispute initially with Justice Borrok. We did so because all of our work so far was at the ultimate direction of the late President, and we are effectively without client direction right now.

162.
As noted above, the only grounds asserted by Harris Bricken on behalf of both ROH and BMPAD in their petition for a stay of this arbitration were that (a) service of PRH's demand for arbitration was procedurally deficient and (b) under Haitian law, the arbitration clause in the Contracts was invalid. There was no assertion in the petition for a stay that ROH was not a proper party or that the motion to compel against ROH should be denied because ROH was a non-signatory and not bound by the Contracts or the agreement to arbitrate.
163.
Proceedings in this arbitration continued while the petition for a stay was pending. On September 7, 2021, counsel for PRH requested that the Panel schedule a prompt hearing on the merits. In response that same day, Ms. Jihee Ann, a partner of Harris Bricken, strongly objected and sought a delay in the proceedings, stating:

If this proceeding is found to be valid, BMPAD has every intent of treating this like a real arbitration. Discovery will be conducted and hearing preparation must occur – a process that will take at least six months. The hearing itself must be live, and we will need time to prepare witnesses and prepare for their travel to New York, including obtaining visas. Therefore, we propose that if the parties receive a ruling from NYSC confirming the validity of this arbitration, the parties then engage in a good faith meet and confer effort to prepare a proposed scheduling order for consideration by the Panel.

164.
On September 15, 2021, the Panel advised that it would be available to hold hearings on the merits during the week of December 6, 2021, and/or during the week of December 13, 2021. In response, Ms. Ahn objected, stating that Harris Bricken had trials in other matters scheduled for the weeks and further stating:

Should this proceeding be held valid, we also intend to litigate all the claims of the parties, which would include BMPAD's counterclaims against Preble-Rish. The Panel should take into account additional time for such counterclaims to be formally filed, and for discovery on the same to be completed as well. We assume Preble-Rish will have no objection to this, given that it has attempted to baselessly amend its initial claim statement just days before by adding a wholly new claim related to the alleged theft of its fuel off a vessel.

In light of the foregoing, we propose scheduling a hearing for February 2022. We also anticipate BMPAD will need 2-3 days to present its defense and counterclaims. Given that the parties expect their presentations to take 4-5 days and the need for translation to add another 4-5 days, we anticipate the hearing will need to be scheduled for a period of 8-10 days in total.

165.
There was no assertion in Ms. Ahn's September 7 and September 15, 2021, messages that ROH was not a proper party to the proceedings or that claims against it should be dismissed because it was a non-signatory. To the contrary, Ms. Ahn represented that if Justice Borrok confirmed the validity of the arbitration clause, it was the Respondents' intention to litigate on the merits all the claims of all the parties, including not only Respondents' defenses but also their counterclaims against PRH.
166.
In an order issued on September 27, 2021, the state Supreme Court, per Justice Borrok, dismissed BMPAD's petition to stay this arbitration, holding that the "petitioners fail[ed] to establish that the arbitration provisions are illegal under Haitian law."22 In addition, the court granted PRH's motion to compel against both ROH and BMPAD and ordered the parties to "proceed to arbitration forthwith."
167.
On September 20, 2021, PRH submitted an Amended Initial Statement of Claim which added a maritime tort claim. On October 21, 2021, the Respondents submitted an Amended Statement of Defense and Counterclaim. Like Respondents' Initial Statement of Defense and Counterclaim, the Amended Statement of Defense and Counterclaim did not assert that ROH was not a proper party to the proceedings or that claims against ROH should be dismissed because ROH was a non-signatory.
168.
In an order issued October 15, 2021, the Panel advised the parties that the final hearing on the merits would take place during the two weeks commencing February 7, 2022, that all discovery should be completed by January 5, 2022, and that pre-hearing submissions would be due by January 26, 2022.
169.

On January 26, 2022, the United States District Court for the Southern District of New York confirmed the PFA. See Preble-Rish Haiti, S.A. v. Republic of Haiti, 558 F.Supp.3d 155 (S.D.N.Y. 2022). On February 3, 2022, an amended judgment against both ROH and BMPAD was entered on the certified award.23

170.
The final hearing on the merits in this arbitration took place on February 7, 2022. Harris Bricken participated fully in that hearing on behalf of both ROH and BMPAD. The parties exchanged post-hearing submissions on February 23, 2022. At no time during the hearing or in these post-hearing submissions did the Respondents assert that ROH was a non-signatory and therefore not bound by the Contract or the agreement to arbitrate.24

ii. ROH waived its non-signatory defense by failure to assert it in proceedings on Respondents' petition to stay and PRH's cross-motion to compel

171.
In its state court petition to stay this arbitration, the sole objections asserted on behalf of ROH were alleged deficiencies in service of the notice to arbitrate and the alleged invalidity under Haitian law of the arbitration agreement. Both of those objections were rejected by Justice Borrok, who not only denied the petition of the Respondents to stay the arbitration but granted PRH's cross-motion to compel the Respondents to arbitrate. His decision was unanimously affirmed by the First Department.
172.
ROH made no assertion in the state court proceedings that their motion to stay should be granted or that PRH's motion to compel should be denied with respect to ROH because ROH was not a signatory to the Contracts and therefore not a party to the Contracts or the agreement to arbitrate. By failing to do so, ROH waived that defense. See Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698, 704 (2d Cir. 1985); Cobec Brazilian Trading & Warehousing Corp. v. Isbrandtsen, 524 F. Supp. 7, 9 (S.D.N.Y. 1980)). See also Restatement (Third) U.S. Law of Int'l Comm. Arb. § 2.10, cmt. c).
173.
Section 2.10(d) of the Restatement, entitled "Waiver of Defenses to Enforcement of Arbitration Agreement, provides, in pertinent part:

(d) A party ordinarily does not waive a particular defense by failing to bring an action to stay the arbitration. However, a party waives a defense to the extent that it

(1) participated in judicial proceedings to enforce the arbitration agreement or to stay the arbitration;

(2) knew or should have known at that time the relevant facts underlying the defense; and

(3) failed to raise the defense in such proceedings.

174.
Comment c to Section 2.10 provides:

c. Waiver in prior judicial proceedings. This Section assumes that there may arise more than one pre-award proceeding at which the efficacy of a particular arbitration agreement can be questioned and focuses on what must be done by the party resisting enforcement of that agreement; under this Section a party may waive a defense to enforcement of the arbitration agreement by participating in judicial proceedings such as an action to compel or enjoin the arbitration, while failing to invoke the defects in the arbitration of which it knows or should know. Cf. Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698 (2d Cir. 1985) ("[B]ecause Smiga failed to contest the existence of an arbitration agreement…before the district court…she has waived this issue for purposes of appeal.")

175.
That is precisely what occurred here. ROH, together with BMPAD, participated in state court judicial proceedings in which they sought to stay the arbitration and in which PRH sought to enforce the arbitration agreement against them through a motion to compel. ROH clearly knew or should have known of the facts underlying the alleged "non-signatory" defense but failed to raise that defense in the state court proceedings. ROH thus waived any defense upon this ground.

iii. By its conduct in this arbitration, ROH waived any right to contend that it was not bound by the Contracts and the agreement to arbitrate.

176.
The Panel further finds that, as a result of its conduct in this arbitration, ROH waived its right to contend at this late stage that it was not bound by the Contracts and the agreement to arbitrate. Slaney v. The Int'l Amateur Athletic Fed'n, 244 F.3d 580 (7th Cir. 2001). In Slaney, the plaintiff sought to relitigate in federal court issues that had already been decided by an arbitral tribunal, contending that she had not signed the agreement to arbitrate and therefore, was not bound by the resulting award. The Seventh Circuit held that although she was a non-signatory to the agreement, Slaney was estopped by her participation in the arbitration from relitigating her claims in federal court:

We see no reason why, even in the absence of a writing, ordinary rules of contract law should not apply. The Second Circuit, in Smith/Enron Cogeneration Ltd. P'ship, Inc. v. Smith Cogeneration Int'l, Inc., 198 F.3d 88, 96–97 (2d Cir.1999), cert. denied 531 U.S. 815, 121 S. Ct. 51, 148 L.Ed.2d 20 (2000), noted that non-signatories to an arbitration agreement may nevertheless be bound according to ordinary principles of contract and agency, including estoppel. Our judicial system is not meant to provide a second bite at the apple for those who have sought adjudication of their disputes in other forums and are not content with the resolution they have received. Slaney had the opportunity to show that she had never agreed to arbitrate the dispute when she was notified of the arbitration, but she let that opportunity pass. Slaney could not "sit back and allow the arbitration to go forward, and only after it was all done … say: oh by the way, we never agreed to the arbitration clause. That is a tactic that the law of arbitration, with its commitment to speed, will not tolerate." Comprehensive Accounting Corp. v. Rudell, 760 F.2d 138, 140 (7th Cir.1985). "If a party willingly and without reservation allows an issue to be submitted to arbitration, he cannot await the outcome and then later argue that the arbitrator lacked authority to decide the matter." AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000). Thus, we find that the Tribunal's decision must be recognized by this court, and unless a defense is present, must bar her present claims.

244 F.3d at 591–92. See also GE Energy Power Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637 (2020) (nothing in the text of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 ("the Convention'), as implemented by 9 U.S.C.S. § 201-208, conflicted with the application of domestic equitable estoppel doctrines).25

177.
Here, ROH had an opportunity in this arbitration to assert that claims against it should have been dismissed because it was a non-signatory to the Contracts or the arbitration agreement but allowed that opportunity to pass. Neither its initial defense submissions, its amended defense submissions or its post hearing submissions contained any such assertion. Prior to Ms. Wolstein's letter of February 23, 2022, Respondents never asserted that ROH was a non-signatory and therefore not bound by the Contracts or the agreement to arbitrate.
178.
As noted above, in its state court petition to stay this arbitration, the sole objections asserted were alleged deficiencies in service of the notice to arbitrate and the alleged invalidity under Haitian law of the arbitration agreement. On September 27, 2021, both of those objections were rejected by Justice Borrok, who not only denied the petition of the Respondents to stay the arbitration but granted PRH's cross-motion to compel the Respondents to arbitrate. His decision was unanimously affirmed by the First Department.
179.
In September 2021, counsel for ROH and BMPAD repeatedly represented to the Panel and to PRH that if their objections based on alleged deficient service and invalidity of the arbitration clause were rejected by the court, they would "litigate all the claims of all parties" in this arbitration. They requested and obtained a delay in the final hearing on the merits based in part upon those representations and the hearing and post-hearing submissions went forward on that basis.
180.
On October 21, 2021, after Justice Borrok's decision, Respondents submitted an Amended Statement of Defense and Counterclaim asserting defenses to PRH's claims and asserting a substantial counterclaim and a claim for attorney's fees. Harris Bricken, as counsel for both ROH and BMPAD, participated fully in the final hearing on the merits and provided post-hearing submissions. Harris Bricken never asserted at the hearing, in any submission or in any communication to the Panel that ROH was not bound by the contract or the arbitration agreement
181.
The Panel finds that in these circumstances, ROH has waived any right to assert a "non-signatory" defense. Slaney, supra. See Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105 (2d Cir.1991), cert. denied, 502 U.S. 910 (1991) (holding that "[a]lthough a party is bound by an arbitral award only where it has agreed to arbitrate, an agreement may be implied from the party's conduct); Petition of Transrol Navegacao S.A., 782 F. Supp. 848, 851 (S.D.N.Y. 1991) "(At a minimum, Gvozdenovic stands for the proposition that when an agreement to arbitrate may be implied from conduct of a non-signator, that non-signator may not later assert the invalidity of the arbitral award based on its non-signatory status.") See also Restatement (Third) U.S. Law of Int'l Comm. Arb. §4.29, comment b which provides in pertinent part:

b. Party to the arbitral proceeding. A person, either a natural person or a legal person, that participates in an arbitration as a party—by asserting or defending against claims or counterclaims—is a proper defendant in a post-award action…. If a person participates as a party without objection on its part, it waives any objection to its status as a proper defendant, see § 4.23, as well as any challenge to an award on that ground. Cf. Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105 (2d Cir. 1991).

iv. ROH is the alter ego of BMPAD

182.
The Panel further finds that with respect to the Contracts and arbitration agreements at issue here and with respect to any award issued in this arbitration, BMPAD should be regarded as the "alter ego" of ROH. The Supreme Court's decision in FNC Bank v. Bancec Para el Comercio, 462 U.S. 611, 629-30 (1983) is "[t]he controlling case for when an instrumentality of a sovereign state becomes the 'alter ego' of that state." EM Ltd. v. Banco Central de la Republica Argentina, 800 F.3d 78, 89 (2d Cir. 2015). Under Bancec, the presumption that "duly created instrumentalities of a foreign state are ... independent" is overcome where either (1) the "corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created" or (2) where giving effect to corporate separation "would work fraud or injustice." 462 U.S. at 629 (internal citations omitted). The test is disjunctive, and a party may establish alter-ego status by satisfying either prong. EM Ltd., 800 F.3d at 91.
183.

Although there is no "mechanical formula" to evaluate extensive control, Bancec, 462 U.S. at 633, courts have identified certain telltale signs of domination. The Second Circuit developed a fact-intensive, five-factor balancing test to assess whether the "extensive control" prong is satisfied in any given case.

"Among the factors that have been deemed relevant are whether the sovereign nation:

(1) uses the instrumentality's property as its own;

(2) ignores the instrumentality's separate status or ordinary corporate formalities;

(3) deprives the instrumentality of the independence from close political control that is generally enjoyed by government agencies;

(4) requires the instrumentality to obtain approvals for ordinary business decisions from a political actor; and

(5) issues policies or directives that cause the instrumentality to act directly on behalf of the sovereign state."

EM Ltd., 800 F.3d at 91. See also Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat'l Petroleum Corp., 40 F4th 56, 69 (2d Cir. 2022)

184.

These factors are "not exhaustive," dispositive, or rigidly applied. Crystallex Int'l Corp. v. Bolivarian Republic of Venezuela, 932 F.3d 126, 140 (3d Cir. 2019), cert. denied, 2020 WL 2515508 (May 18, 2020); see also Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 823 (2018); Walter Fuller Aircraft Sales, Inc. v. Republic of Philippines, 965 F.2d 1375, 1380 n.7 (5th Cir. 1992); Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1071 n.9 (9th Cir. 2002). Instead, they target often overlapping indicia that assist a court with determining "whether the sovereign state exercises significant and repeated control over the instrumentality's day-to-day operations." EM Ltd., 800 F.3d at 91.

185.

In addition, courts in the Southern District of New York consider:

(1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign state law.

In re 650 Fifth Ave. & Related Props., 881 F. Supp. 2d 533, 549–50 (S.D.N.Y. 2012); Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat'l Petroleum Corp., 397 F. Supp. 3d 323, 335 (S.D.N.Y. 2019), aff'd in part, vacated in part, remanded, 40 F.4th 56 (2d Cir. 2022).

186.
Applying the above criteria, the law creating BMPAD indicates that it was created for a national purpose and is actively supervised by the Haitian government. The Board of Directors consists of six cabinet ministers and the Governor of the Central Bank. The Director General is appointed by the government cabinet minister and its personnel are appointed by and serve at the pleasure of the President of ROH, by Presidential Decree, taken in the Council of Ministers.
187.
Based on the evidence in this case, the Haitian government exercised significant and repeated control over the day-to-day activities of BMPAD in relation to the Contract and its performance. The Minister of Economy and Finance approved the award of the Contract, approved Amendment 1 to Contract,
188.
The evidence indicates that operational matters which in a truly separate entity would be entrusted to company management, were directed by the highest government officials. For example, all payments for product were transmitted from accounts of the Ministry of the Economy and Finance after having been authorized by the Minister himself, Michel Patrick Boisvert. See e.g., Exhibits AAA, BBB. Moreover, Minister Boisvert was personally copied on routine operational correspondence concerning shipment schedules, vessel nominations and descriptions, bills of lading and other shipping documents, waiver of draft limitations for an arriving vessel, and payment issues. When PRH conditionally ordered the "Aquila L" into port and to commence discharge, it was following a phone conversation between Mr. Leconte and "the highest Government of Haiti officials who promised to authorize immediate payment of the PRH's invoice." Leconte Aff ¶ 59. In addition, as noted above, according to Mr. Harris, the work of his firm in this arbitration and in related cases was always overseen and directed by the President of Haiti. In the view of the Panel, the intervention of government officials in BMPAD's day-to-day affairs deprives BMPAD of independence from close political control.
189.
In Esso, the district court relied upon similar facts in holding that the Nigerian government was the alter ego of the Nigerian National Petroleum Company. There, among other things, the Nigerian President appointed the Minister of Petroleum Resources, who was also the Chairperson of NNPC's Board of Directors, appointed and had the power to remove all NNPC board members and its managing director; that hat Nigeria, through its President, interjects itself into NNPC's "ordinary business affairs;" and that "Nigeria also exerts control over NNPC's business transactions and budget". As the court concluded, "Taken together, these examples of control demonstrate that Nigeria has a substantial role in the day-to-day operations of NNPC. 397 F. Supp. 3d at 338 (S.D.N.Y. 2019). On appeal, the Second Circuit affirmed this aspect of the district court's ruling, stating:

We identify no error, much less clear error, in these findings. Because they demonstrate extensive control of NNPC by the state, the district court rightly concluded that NNPC is an alter ego of Nigeria and thus is not entitled to wage a due process challenge to the district court's exercise of personal jurisdiction over it

Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat'l Petroleum Corp., 40 F.4th 56, 70 (2d Cir. 2022). See also Funnekotter v. Agric. Dev. Bank of Zimbabwe, No. 13 CIV.1917(CM), 2015 WL 9302560, at *1 (S.D.N.Y. Dec. 17, 2015) (holding that the Zimbabwe Mining Development Corporation ZMDC was an alter ego of Zimbabwe where (1) ZMDC's enabling act required Zimbabwe to own no less than 51% of ZMDC's stock; (2) members of ZMDC's board of directors were to be appointed after consultation with the President; (3) ZMDC could not make investments or loans without seeking direction and advice from the Minister of Mines; and (4) the Minister of Mines could direct ZMDC to take "any actions that the minister deems to be in the national interest.")

190.
Based on our application of the factors enumerated by the Second Circuit, the Panel concludes that ROH is the alter ago of BMPAD and is a party to the Contracts.

v. At all relevant times, BMPAD acted as ROH's agent

191.
We further find that the relationship between the Republic and BMPAD was such that a relationship of principal and agent was created so that one may be held liable for the actions of the other. See Bancec, 462 U.S. at 629. "An agency relationship exists under New York law when there is agreement between the principal and the agent that the agent will act for the principal and the principal retains a degree of control over the agent." In re Parmalat Sec. Litig., 375 F. Supp. 2d 278, 290 (S.D.N.Y. 2005) (citing Commercial Union Ins. Co. v. Alitalia Airlines, 347 F.3d 448, 462 (2d Cir. 2003)). An agent's authority to act on the principal's behalf "may be express, implied or apparent." Flame Cut Steel Prods. Co. v. Performance Foams & Coatings, Inc., 46 F. Supp. 2d 222, 228 (E.D.N.Y. 1999). However, "[t]he element of control often is deemed the essential characteristic of the principal-agent relationship." Parmalat, 375 F. Supp. 2d at 290 (citing Meese v. Miller, 79 A.D.2d 237, 242, 436 N.Y.S.2d 496 (N.Y. App. Div. 1981); Restatement (Second) of Agency § 14 cmt. a (1958)).

B. The Panel finds that the parties agreed to calculation of the Contract prices using the formula set forth in Appendix 1 of each of the Contracts, i.e., the relevant Platt's price per barrel for each product plus: $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel.

192.
Respondents' substantive defense in this arbitration and the basis for their counterclaim is their contention that the price of the products should be calculated using the cents per gallon premiums provided for in paragraph 6.1 of each of the Contracts rather than the dollar per barrel premiums provided for in Appendix 1 to each of the Contracts.
193.
Respondents' Initial Statement of Defense and Counterclaim dated April 23, 2021, and the Saint-Fleur Affidavit did not coherently state their position on this point or accurately state the relevant facts.26 It was not until their post hearing submissions on February 23, 2022, that the Respondents adequately articulated the position on which their defense and counterclaim is based. After reviewing those submissions, we directed PRH to submit a response addressing Respondents' argument. PRH's response was received by the Panel on June 3, 2022. Thereafter, we asked PRH to provide to the Panel copies of documents that had been omitted from the attachments to its June 3 submissions which were provided on June 23, 2022. For the reasons set out below, we find and conclude that Respondents have failed to prove the facts necessary to support their defense and counterclaim as articulated in their post-hearing submissions.
194.
Respondents contend that the Panel should apply Haitian law to determine the dispute between the parties and have submitted the affidavit of a Haitian attorney in support of their position. Although PRH does not agree that Haitian law applies, it has also submitted the affidavit of a Haitian attorney and, in its Supplemental Post Hearing submissions, has stated its view on how the dispute should be decided under Haitian law. We will begin our analysis by applying what, based on the submissions of the parties, are the relevant principles of Haitian law, followed by a discussion of New York law.
195.
Whether Haitian law or New York law applies, the issue is what did the parties agree as to price? As discussed below, based on the record here, we unanimously conclude that the parties agreed that the price per barrel for each product would be determined using the price formula in Appendix 1 to each Contract --i.e., the relevant Platt's price per barrel for each product plus: $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline. and $6.28 per barrel for jet fuel.

i. Allegation of "mechanical error"

196.
One premise of BMPAD's position is set forth in Mr. Saint-Fleur's June 15, 2020, letter to Mr. Leconte which stated:

A mechanical error snuck into annex I of the contract during the transcription of this data and deserves being corrected by an addendum to this contract of which you are a signer on behalf of PREBLE-RISH HAITI S.A. Consequently, the General Direction of BMPAD invites you to sign the said addendum annexed to this letter and to send it back as soon as possible.

Saint-Fleur Aff. Exhibit C.

197.
As noted above, BMPAD did not include in Exhibit C the addendum stated to have been annexed to the June 15 letter. It is not clear from the record what, exactly, the "mechanical error" was or how the purported addendum would have clarified it; BMPAD's counsel did not present Mr. Saint-Fleur to explain or cross-examine PRH's witnesses on this point.
198.
In any event, one commentator has defined mechanical errors as follows:

A common kind of mistake in everyday life consists of physical blunders, like spilling coffee. This kind of mistake, although manifested externally, normally results from an error in the mechanics of an actor's internal machinery, such as a lapse of concentration, a loss of balance, or an error in hand-eye coordination. Such errors are almost invariably transient. If an actor spilled every cup of coffee he handled we would not characterize his spills as mistakes, but instead would say that he had some type of disability.

A counterpart to transient physical blunders consists of intellectual blunders that result from transient errors in the mechanics of an actor's internal machinery. For example, as a result of a transient error in the mechanics of an actor's mental machinery the actor may write "65" when he intends to write "56" or may incorrectly add a column of figures.

I will call mistakes of this kind--that is, physical or intellectual blunders that result from transient errors in the mechanics of an actor's internal machinery --mechanical errors. Mechanical errors resemble the kind of mistake sometimes made in the transcription of DNA. Almost invariably, that transcription is correct. Every once in a while, it goes transiently awry.

Marvin A. Eisenberg, Mistake in Contract Law, 91 Calif L. Rev 1573, 1584 (2003).

199.
That is not what happened here. We have recounted above the events that led to BMPAD preparing and submitting to PRH an Appendix 1 to each of the Contracts providing that the price would be the relevant Platt's for each product plus: $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel and its insistence that PRH sign and initial them that night, May 13, after two days of intensive negotiation. Respondents' counsel did not cross-examine PRH's witnesses on this subject and did not present any witnesses, including Mr. Saint-Fleur, to refute the testimony of PRH's witnesses or to be subject to cross-examination by PRH's counsel. Respondents have not met their burden to prove that their inclusion of the Appendix 1pricing formula in each of the Contracts presented to PRH for signature was the result of a "mechanical error."
200.
As set out in detail above, PRH's original bid package contained the same price formula that appears in Appendix 1 to each of the Contracts. It is evident from an examination of the entire PRH bid package that, for each product, PRH intended to bid the relevant Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. Based on the evidence in the record of subsequent events, the Panel finds that, after negotiations, the parties in fact agreed to pricing on this basis.
201.
According to the declarations of PRH's Ms. Brunet and Mr. Leconte, submitted in this proceeding and unchallenged on cross-examination by Respondents' counsel, the following sequence of events took place between the announcement by BMPAD of the terms of the accepted bid and the signature of the Contracts:

● The parties engaged in intensive negotiations that began when, on May10, 2020, PRH transmitted to BMPAD a draft contract to be customized for each product with a draft appendix for each product containing a proposed price formula.

● The price formula in PRH's draft appendix to each draft contract transmitted to BMPAD on May 10, 2020, provided that the unit price for each product was the relevant Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel; plus an additional premium for each product of 6.55 cents per gallon for diesel, 8.11 cents per gallon for gasoline and 6.28 cents per gallon for jet fuel.

● On May 12, 2020, Mr. Leconte, Mr. Champagne, and Ms. Brunet of PRH were summoned to BMPAD's office and were presented with draft contracts for signature which, in their view, were substantially different in substance and in form from the drafts that PRH had sent to BMPAD.

● PRH asked BMPAD to reconsider adding in the clauses from PRH's draft contract addressing arbitration, foreign corrupt practices, and the pricing structure that PRH had proposed in its draft Appendix I to each of the Contracts. Brunet Aff. ¶ 7.

● Following several hours of negotiations, BMPAD agreed on May 12, 2020, to include certain of the changes requested, including the clauses requiring arbitration outside of Haiti, addressing compliance with the foreign corrupt practices laws of the United States and the pricing structure provided by PRH in Appendix 1 to each of the Contracts. Id.

● The negotiations on May 12, 2020, ended with BMPAD agreeing to revise its contracts accordingly and to forward them to PRH the same day. Id.

● However, when BMPAD transmitted to PRH its next version of the draft contracts sent on May 13, they did not include Appendix 1 for any of the draft contracts or the pricing formula contained in PRH's proposed Appendix 1. Nor did they contain the other provisions urgently requested by PRH. Accordingly, in an email to BMPAD at 2:05 pm on May 13, 2020 (Exhibit YY), Ms. Brunet expressed exasperation and stated that the parties were back to "square zero".

● PRH returned to BMPAD's office on May 13, 2020, for what PRH described as another lengthy in-person negotiation session. Brunet Aff. ¶8. According to PRH, BMPAD again agreed to include the missing provisions, including the pricing provisions of Appendix 1, in each draft, revised the Contracts accordingly, and insisted that the Contracts had to be signed immediately because of the fuel crisis. Id.

● Thus, at approximately 11 p.m. on May 13, 2020, PRH and BMPAD signed the three contracts as presented by BMPAD. Id. Mr. Saint-Fleur, Director General, signed on behalf of BMPAD. Mr. Leconte, President of PRH, signed on behalf of PRH. In addition to signing on the signature line, both Mr. Saint-Fleur and Mr. Leconte signed every page of each Contract, including Appendix 1 of each Contract.

202.
The Respondents did not dispute the accuracy of the accounts of the negotiations between the parties given by Ms. Brunet and Mr. Leconte, as summarized above. Mr. Saint-Fleur who participated in those negotiations, also said nothing to the contrary in his affidavit and did not testify at either the hearing on the PFA or the final hearing on the merits.
203.
Counsel for the Respondents had the opportunity to cross examine both Mr. Leconte and Ms. Brunet at the final hearing on the merits but did not ask a single question about this subject which was central to BMPAD's defense and its counterclaim.
204.
Based on the record before us, the Panel finds that the inclusion of pricing formula in Appendix 1 in each Contract – i.e. the relevant Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel -- was not the result of "mechanical error" but was instead, the product of intensive negotiations in which PRH insisted upon the inclusion of the Appendix 1 pricing formula and other contract provisions as an absolute and non-negotiable condition of entering into the Contracts. The Panel also finds that BMPAD added those provisions into Appendix 1 of the final versions of each of the Contracts and signed each page of the Appendices.

ii. Affidavit of Claudie Marsan

205.
The Respondents next contends that as a matter of Haitian law, terms in the body of a Contract automatically take precedence over conflicting terms set out in an appendix. For this proposition, the Respondents rely upon the February 10, 2022, affidavit of Me. Claudie Marsan, a Haitian attorney who claims to be an expert on public procurement. Ms. Marsan responds in her affidavit to two questions addressed to her by counsel for BMPAD. The first question is:

Question 1: According to the Haitian legislation governing public procurement, how are the documents of a contract binding the parties interpreted?

206.
Ms. Marsan begins her answer to this question by quoting the provisions of Clauses 6.1 and 6.2 from the Jet Fuel supply contract and comparing them with the pricing provisions of Appendix 1 to that contract. With respect to Appendix 1, Ms. Marsan states:

It is obvious that the wording of this extract is different from the content of the article 6.1 and the initial offer of PREBLE-RISH. A situation which requires to be rectified in order to respect the provisions of the law regarding the application of the formula propose by PREBLE-RISH and accepted by BMPAD, formula that must be included in the contract and Appendix.

207.
Ms. Marsan next asserts that Haitian legislation and donor procurement procedures impose a hierarchy of standards and contractual documents that must be used to resolve any inconsistency between provisions of a contract. In support of the existence of this hierarchy, Ms. Marsan refers to an "article taken from the Book of special administrative clauses in accordance with the general administrative clauses applicable to public supply contracts in Haiti" which she quotes in English as follows:

3 - Contractual documents (Articles 4 and 5 of the GCC)

The contract consists of the contractual documents listed below, in descending order of priority:

1. the contract;

2. the act of commitment or the tender;

3. the tender Appendix, including the schedule of quantities and unit prices;

4. purchase orders (f applicable);

5. this Book of special administrative clauses;

6. the Book of specific technical clauses (f applicable);

7. the Book of general administrative clauses applicable to public contracts for supplies, services, IT and office automation.

208.
Based on this hierarchy Ms. Marsan asserts:

The Appendix 1 of the contract must not contain information contrary to that included in the contract. Indeed, Haitian legislation as well as donor procurement procedures, among others, require that, in compliance with the hierarchy of standards and contractual documents, that there be no difference or ambiguity in the interpretation of the various constituent documents of a contract, the most important of which is the contract itself. It should be noted that the order of priority of said documents is decreasing.

209.
Although not precisely identified in Ms. Marsan's affidavit, the source of the language she quotes regarding the "hierarchy" is the "Dossier d'appel d'offres standard pour l'acquisition de fournitures" ("Dossier of standard tender documents for the acquisition of supplies") (the "Dossier"). http://www.agriculture.gouv.ht/view/01/IMG/pdf/appel_d_offre.pdf The Dossier is published by the Haitian government and, as the title suggests, contains model documents and clauses that may be used by government agencies in the instructions provided to potential bidders in public tenders.
210.
The language that appears in quotation marks in Ms. Marsan's affidavit is a translation of Article 3 from Chapter 5 of the Dossier entitled Cahier Des Clauses Administratives Particulières (CCAP) ("Book of Special Administrative Clauses") which suggests that the following language be used in the instructions to bidders in tender documents for certain contracts:

3 - Documents contractuels (Articles 4 et 5 du CCAP)

Le marché est constitué par les documents contractuels énumérés ci-dessous, par ordre de priorité décroissante :

1. le marché ;

2. l'acte d'engagement ou la soumission ;

3. les annexes de la soumission dont le bordereau des quantités et des prix unitaires;

4. les bons de commandes (le cas échéant) ;

5. le présent Cahier des clauses administratives particulières ;

6. le Cahier des clauses techniques particulières (le cas échéant) ;

7. le Cahier des clauses administratives générales applicables aux marchés publics de fournitures, de services, d'informatique et de bureautique.

211.
The above language is not from any Haitian legislation. It is wording suggested for use in the instructions to bidders in tender documents for certain contracts. In fact, such wording was not used in BMPAD's instructions to bidders in the tender for contracts. Nor, in the Panel's view, was it otherwise incorporated by the parties in the Contracts. The Panel therefore concludes that the hierarchy set out in the above quoted language has no application to the interpretation of the Contracts.
212.
Next, Ms. Marsan asserts that Haitian public procurement law requires that the prices in contracts such as the Contracts here "must contain, without ambiguity, the unit price of the contract in accordance with the offer submitted by the tenderer who has become the contract holder." Marsan Aff, p. 4.
213.
In support of this proposition, Ms. Marsan cites Article 76 of the law of June 10, 2009, the provisions of which, she states, are unequivocal. However, Article 76, quoted by Ms. Marsan in French, does not so provide. It says:

Article 76.- Le prix du marché est réputé couvrir toutes les dépenses qui sont la conséquence nécessaire et directe des travaux, fournitures ou services, et notamment les impôts, droits et taxes applicables sauf lorsqu'ils sont exclus du prix du marché en vertu du terme de commerce retenu ; le prix du marché est réputé assuré au titulaire un bénéfice.

Les prix des prestations faisant l'objet d'un marché sont, soit des prix unitaires appliqués aux quantités réellement livrées ou exécutées, soit des prix forfaitaires, soit une combinaison des deux.

Translation:

Article 76.- The contract price is deemed to cover all the expenses which are the necessary and direct consequence of the works, supplies or services, and notably applicable taxes, duties and taxes except where they are excluded from the contract price under the chosen trade term; the contract price is deemed assured to the holder a profit.

The prices of the services covered by a contract are either unit prices applied to the quantities actually delivered or executed or fixed prices or a combination of the two.

214.
The Panel finds that Article 76 provides no support for the proposition that the fuel contracts "must contain, without ambiguity, the unit price of the contract in accordance with the offer submitted by the tenderer who has become the contract holder."
215.
Even if the above proposition were supported by Article 76, the price formula in paragraph 6.1 of each of the Contracts is not, in the view of the Panel, "in accordance with the offer submitted by PRH." That offer was contained in PRH's 29-page bid package submitted on April 30, 2020. As discussed above, it is evident from an examination of the entire PRH bid package that, for each product, PRH intended to bid the relevant Platt's price plus $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel, as described and found by us above.
216.
The second question addressed by Ms. Marsan is the following:

Question 2: Can the Buyer BMPAD ask to sign an addendum to modify the elements in an appendix to the contract of sale and purchase of petroleum products?

217.
Relying upon various provisions of Haitian law, Ms. Marsan concludes, in answering the second question, that "the signatories of a public contract are free to modify it by signing an addendum, provided that they respect the principle of the absence of disruption of the economy of the contract." She further asserts that an addendum rather than an amendment is the appropriate vehicle for a price revision. With the greatest respect, the Panel does not see the bearing of either of these uncontroversial propositions on the issues in this case. In fact, BMPAD did ask PRH to sign to an addendum to modify Appendix 1 of the Contracts but PRH did not agree to do so.
218.
Ms. Marsan then repeats her earlier assertion regarding the hierarchy of documents:

In compliance with the requirements of the law which requires that the annexes comply with the provisions of the contract which is the priority document in the classification of the documents constituting the contract, the Appendix 1 must not be different from the contract signed between BMPAD and PREBLE-RISH.

As discussed above, Ms. Marsan has pointed to no "requirement of the law" imposing such a rule.

219.
In the last paragraph of her affidavit., Ms. Marsan states:

This explains why BMPAD invites the firm to sign an amendment to correct an involuntary material error included in Annex 1. Error which, if not rectified, would not only be detrimental to the Haitian State, but would harm the rights of the unsuccessful competitors. In the context of a call for tenders, a tenderer cannot take advantage of a Buyer's [sic]. Regarding this, PREBLE-RISH must therefore maintain his initial offer which was accepted by the BMPAD and maintained according to the law governing the contract. The use of an amendment must not have the objective of substantially modifying the economics of the market.

220.
As noted above, the Panel does not accept that an "involuntary material error" was included in Appendix 1. As for the last sentence of the above paragraph, it seems to be based on some confusion. Appendix 1 was not an amendment to the Contracts. It was a part of the Contracts and signed together with them by the parties on May 13, 2020. There was no amendment which sought to change the Contracts or to substantially modify their economics.27

iii. Haitian law principles of contract interpretation

221.
In its post hearing supplemental submissions, PRH rejects Ms. Marsan's proposed "hierarchical" approach to contract interpretation. PRH's view on the principles of Haitian law applicable to the interpretation of contracts is set forth in the Declaration of Sylvie Roy Handal, a Haitian attorney, dated February 2, 2022. Ms. Handal states in pertinent part:

Courts must seek the common intent of the contracting parties rather than stop at the literal meaning of the words28…. In doing so, they may take into account the behaviors of the parties, both before and after the conclusion of the contract, as well as the context of the operation. If the judges cannot detect the intention of the parties, they must interpret the clauses according to the meaning a reasonable person placed in a similar situation would give to those clauses."

Handal Decl. at ¶ 14. Ms. Handal cites various provisions of the Haitian Civil Code and notes of Haitian jurisprudence in support of the foregoing proposition. The Panel finds and concludes that this is the correct approach under Haitian law.

222.
The Appendix 1 price formulas are different from those in Clause 6.1 of the Contracts. Prices calculated in accordance with the Appendix 1 price formulas are substantially higher than prices calculated in accordance with the formulas as set out in Clause 6.1. To illustrate:

● For diesel, Clause 6.1 provided that the unit price would be the relevant Platt's price plus a premium of 6.16 cents per gallon which, multiplying by 42 gallons to the barrel, equals $2.59 per barrel. Appendix 1 provided that the unit price would be the relevant Platt's price plus $6.16 per barrel. Thus, the Appendix 1 unit price for diesel exceeded the Clause 6.1 price by $3.57 per barrel. The Diesel Supply Contract envisioned the delivery 550,000 barrels of diesel per month for six months, for a total of 3,300,000 barrels. Hence, the total Appendix 1 price of that quantity exceeded the Clause 6.1 price by $11,781,000.

● For gasoline, Clause 6.1 provided that the unit price would be the relevant Platt's price plus a premium of 8.11 cents per gallon which, multiplying by 42 gallons to the barrel, equals $3.41 per barrel. Appendix 1 provided that the unit price would be the relevant Platt's price plus $8.11 per barrel. Thus, the Appendix 1 unit price for gasoline exceeded the Clause 6.1 price by $4.70 per barrel. The Gasoline Supply Contract envisioned the delivery 375,000 barrels of gasoline per month for six months for a total of 2,250,000 barrels. Hence, the total Appendix 1 price of that quantity exceeded the Clause 6.1 price by $10,575,000.

● For jet fuel, Clause 6.1 provided that the unit price would be the relevant Platt's price plus a premium of 6.28 cents per gallon which, multiplying by 42 gallons to the barrel, equals $2.64 per barrel. Appendix 1 provided that the unit price would be the relevant Platt's price plus $6.28 per barrel. Thus, the Appendix 1 unit price for jet fuel exceeded the Clause 6.1 price by $3.64 per barrel. The Jet Fuel Supply Contract envisioned the delivery 75,000 barrels of jet fuel per month for six months for a total of 450,000 barrels. Hence, the total Appendix 1 price of that quantity exceeded the Clause 6.1 price by $1,638,000.

223.
However, as noted above, using the Appendix 1 prices, PRH would have made a profit of approximately $15 million during the 6 months of the Contracts which was around 6.7 percent of the estimated contract value of $225 million. Using the Clause 6.1 prices, PRH would have made a loss of nearly $10 million. It is not credible that PRH would have intentionally submitted a bid or entered into contracts that would have resulted in a loss of this magnitude. The pricing formula subsequently agreed by PRH with Trafigura is persuasive, if not compelling, evidence as to the pricing formula that PRH believed it had agreed to on May 13, 2020.
224.
The price provisions of Clause 6.1 of each Contract were different from the price provisions of Appendix 1. Under Haitian law, when faced with apparently conflicting provisions of a contract, the Panel must attempt to ascertain the common intent of the parties in order to determine which provision must prevail. As above, the Panel finds that it was the common intent of the parties that the provisions of Appendix 1 should take precedence over the provisions of Clause 6.1. This is evident from the extensive negotiations that took place regarding the price provisions of Appendix 1 and two other clauses of the Contract, the exclusion of which would have been regarded by PRH as a deal breaker. Moreover, Clause 6.1 of each Contract refers to and incorporates Exhibit 1. Exhibit 1 provides that it contains the "specific conditions" of that supply contract, indicating that the "specific" provisions of Appendix 1 were meant to take precedence over the less specific provisions of Clause 6.1.
225.
A further factor in resolving the conflict between the pricing provisions of Clause 6.1 and those of Appendix 1 to each Contract is that BMPAD drafted the version of the Contract signed by the parties, including both Clause 6.1 and Appendix 1 which is different from the Appendix 1 proposed by PRH. Under Article 952 of the Haitian Civil Code, any resulting doubt must be resolved by interpreting the provisions against BMPAD which drafted them.29
226.
The parties' course of performance after signing the Contracts also supports our conclusion that, when the contract was signed, it was their common intent that the purchase price of each shipment of product would be calculated based on the pricing formulas in Appendix 1 of each Contract. As discussed above, PRH entered into the Trafigura Purchase Contract based on the per barrel pricing in Appendix 2 and repeatedly invoiced for the products and BMPAD continued, until October 2020, to pay for them in accordance with the pricing formula contained in Appendix 1 to each Contract.
227.
It is true that, during this course of performance, BMPAD sent its June 15, 2020, letter stating that there had been a "mechanical error" and requesting that PRH sign an addendum to correct it, a September 2 letter to PRH stating that "your company still owes to the Haitian State through the BMPAD several million American dollars" and finally its October 27, 2020 letter in which it said that, based on "BMPAD calculations made on the basis of the offer submitted by your company recorded in the minutes of the opening of the envelopes on April 30, 2020 signed by your authorized representative in public session, PREBLE-RISH HAITI S.A. even when it would have delivered the entire cargo of 164,490 barrels of Mogas, would still owe the State $8,543,224.38."
228.
As we have found above, Respondents did not present sufficient evidence to support a finding that Appendix 1 was the result of a "mechanical error." In their initial claim submissions and during the hearing on the merits, counsel for Respondents failed to articulate the factual basis for Respondents' contention, as we now, finally, understand it. Instead, they (a) incorrectly asserted that a change in the pricing provisions was made in Amendment 1 of the Contracts and (b) misstated the issue between the parties as whether billing for the product should have been in gallons or in barrels. Although Mr. Saint-Fleur's June 15, 2020, letter was appended as Exhibit C to his affidavit, the proposed addendum to the Contracts transmitted with that letter (which, presumably, would have stated what the alleged mechanical error was and how the proposed addendum would correct it,) was not attached. Moreover, the text of Mr. Saint-Fleur's affidavit did not correctly state the significance of the June 15 letter, again mistakenly asserting that "Amendment 1" had changed the pricing of the Contract.30
229.
Respondents did not produce any evidence disputing PRH's account as to how Appendix 1 came to be a part of the Contracts. Mr. Saint Fleur, a participant in the negotiations, was not presented at either the hearing on the PFA or the hearing on the merits. Moreover, counsel for BMPAD did not bother to cross examine PRH's witnesses on their accounts of how and why the prices in Appendix 1 were agreed by the parties,
230.
Indeed, Respondents' failure to produce Mr. Saint-Fleur for cross-examination and the failure of their counsel to cross-examine PRH's witnesses about the negotiations on pricing structure which led to the parties signing and initialing the Contracts and Appendices on May 13, 2020, allows us to draw an adverse inference that the evidence from Respondents' side, if Respondents had elicited it, would have been consistent with the evidence provided by PRH and the findings and conclusions we have reached here. See Mali v. Fed. Ins. Co., 720 F.3d 387 (2d Cir. 2013) (failure to produce evidence without satisfactory explanation allows a jury to infer, but does not require it do so, that the evidence, if it had been produced in court, would have been unfavorable to the party controlling the evidence).
231.
While BMPAD's subsequent correspondence indicates that, after each Contract was signed, BMPAD regretted and sought to resile from its agreement to the Appendices on price, the Panel concludes that at the time of the signing, the parties' agreement and common intent was that the pricing formula in Appendix 1 of each of the Contracts should apply in determining the price of each product.

iv. Analysis under US law of allegation of "mechanical error"

232.
PRH asserts that US law, meaning presumably either New York law, general federal maritime law, or some combination thereof, should apply. While the analysis under US law is different, we believe that the outcome is the same.31
233.
Under New York law, Respondents' contention that the inclusion in each of the Contracts of the Appendix 1 price provision was a "mechanical error" appears to sound in "mistake." As the New York Court of Appeals observed in Chimart Assocs. v. Paul, 66 N.Y.2d 570, 573–74, 489 N.E.2d 231, 233–34 (1986):

In the proper circumstances, mutual mistake or fraud may furnish the basis for reforming a written agreement. Indeed, the concepts are closely related. In a case of mutual mistake, the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement (see, Harris v. Uhlendorf, 24 N.Y.2d 463, 301 N.Y.S.2d 53, 248 N.E.2d 892; Hart v. Blabey, 287 N.Y. 257, 39 N.E.2d 230). In a case of fraud, the parties have reached agreement and, unknown to one party but known to the other (who has misled the first), the subsequent writing does not properly express that agreement (see, Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 86, 308 N.Y.S.2d 649, 256 N.E.2d 707; Welles v. Yates, 44 N.Y. 525).

Because the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties, generally neither the parol evidence rule nor the Statute of Frauds applies to bar proof, in the form of parol or extrinsic evidence, of the claimed agreement (see, Brandwein v. Provident Mut. Life Ins. Co., 3 N.Y.2d 491, 496, 168 N.Y.S.2d 964, 146 N.E.2d 693; but see, Friedman & Co. v. Newman, 255 N.Y. 340, 174 N.E. 703). However, this obviously recreates the very danger against which the parol evidence rule and Statute of Frauds were supposed to protect—the danger that a party, having agreed to a written contract that turns out to be disadvantageous, will falsely claim the existence of a different, oral contract (see, *574 Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062). To this end — "for freedom to contract would not long survive courts' ready remaking of contracts that parties have agreed upon" (id.) —reformation has been limited both substantively and procedurally. Substantively, for example, reformation based upon mistake is not available where the parties purposely contract based upon uncertain or contingent events (Sears v. Grand Lodge, 163 N.Y. 374, 378, 57 N.E. 618).

Procedurally, there is a "heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties" (Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062, supra), and a correspondingly high order of evidence is required to overcome that presumption. (Id. at pp. 219–220, 413 N.Y.S.2d 135, 385 N.E.2d 1062; see also, 3 Corbin, Contracts § 615, at 745–746.) The proponent of reformation must "show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties" (Backer Mgt. Corp. v. Acme Quilting Co., at p. 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062, supra).

66 N.Y.2d 573–74, 489 N.E.2d at 233–34 (1986).

234.
Here, Respondents have failed to satisfy the heavy burden of proof that would be required to support a claim of mutual mistake. As noted above, the account given by PRH's witnesses of the communications and negotiations leading to the conclusion of the Contracts was not challenged by Respondents, either by cross examination at the hearings or by the introduction of contrary evidence. The Panel therefore finds that there was no mistake on PRH's part about the pricing provisions of each Appendix 1. On this record, PRH knew what it intended, and insisted upon BMPAD's agreement to, the pricing formula used in Appendix 1. Otherwise, the parties were back to "square zero," and PRH would not supply the fuel. BMPAD agreed, prepared an Appendix 1 to each of the Contracts with the pricing formula used in the final contract (i.e., the relevant Platt's price plus $6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel) and signed each Appendix 1.
235.
Nor have Respondents made a sufficient showing of unilateral mistake on their part accompanied by fraud on the part of PRH. To the contrary, from the evidence adduced by PRH, which went unchallenged by Respondents, the Panel finds that it is more likely than not that BMPAD was aware that the pricing provisions of Appendix 1 were different from those in Clause 6.1 of the contract and that it nevertheless agreed to the inclusion of Appendix 1 in the Contracts.
236.
Further, to the extent that the price provisions of Clause 6.1 of each Contract conflict with those of Appendix 1, the Panel finds that the provisions of Appendix 1 prevail. Clause 6.1 of each Contract expressly incorporates Appendix 1. Appendix 1 provides that it contains the "specific conditions" of that Contract, indicating that the "specific" provisions of Appendix 1 were meant to take precedence over the less specific provisions of Clause 6.1. When two contract terms conflict, the specific term controls over the general terms. See, e.g., Islam v. Lyft, Inc., 524 F. Supp. 3d 338, 359 (S.D.N.Y. 2021); United States Postal Service v. American Postal Workers Union, 922 F.2d 256, 260 (5th Cir.1991); Boatmen's National Bank of St. Louis v. Smith, 835 F.2d 1200, 1203 (7th Cir.1987); United States v. Pielago, 135 F.3d 703, 710 (11th Cir. 1998).
237.
Hence, even if New York law applies, the Panel concludes that the price formula in Appendix 1 of each Contract determines the price of the product.

C. Respondents' breach of the Contracts

238.
The [C]ontracts provided for the supply by PRH to BMPAD of the monthly quantities of products specified in Annex 1 to each [c]ontract. Because of the initial default by BMPAD in its obligation to establish a confirmed standby letter of credit, PRH required as a condition of delivery prepayment of the estimated price of the Products ordered by BMPAD for delivery each month in accordance with PRH's Provisional Invoice. The prepayment requirement was set out in Amendment 1 to each of the [C]ontracts. Although Amendment No. 1 applied by its terms only to Order 001, the parties used the same mechanism for subsequent orders. PRH contends that the parties thus established a course of dealing pursuant to which a) BMPAD issued an Order specifying the quantities for delivery for the upcoming month; (b) PRH issued for prompt payment a Provisional Invoice in respect of that Order based on the estimated price multiplied by the quantities requested; (c) PRH arranged for the shipment of the Product ordered by BMPAD; (d) after discharge of the Product in Haiti, PRH issued a final invoice in respect of the Order based on Contract price multiplied by the exact quantities discharged plus demurrage and other charges in connection with that Order. In fact, the parties dealt with Orders 1-4 in this way.
239.
Following receipt from BMPAD of Order 005, PRH issued on October 1, 2020, its Provisional Invoice for Order 005 in the amount of $48,721,905.54 with payment due on October 2, 2020. On October 5, 2020, BMPAD issued a revised Provisional Invoice reducing the amount of the prepayment to $45,456,835.28 with payment due on October 7, 2020. PRH proceeded to arrange for the purchase and shipment of the products ordered by BMPAD.
240.
In breach of its obligations, BMPAD failed to pay PRH's provisional invoice for Order 005. Despite BMPAD's failure to pay, the first two vessels carrying products requested by BMPAD under Order 005, the "Endeavour II" and the "Aquila L", discharged their cargoes in Haiti (the latter vessel compelled to do so by court order).
241.
In its November 9, 2020, letter, PRH advised BMPAD that it would not discharge the third vessel, the MT SN Osprey, unless payment of the provisional invoice was promptly received. When BMPAD failed to make payment, PRH instructed the "SN Osprey" to proceed elsewhere and was compelled to cancel the shipment on the fourth vessel, the "Minerva Julie". With no standby letter of credit to secure payment and with BMPAD refusing to pay the Provisional Invoice, PRH was not obligated to deliver these cargoes in Haiti and was justified in the actions it took.

i. PRH's claim for the unpaid invoiced amount of $18,796,931.71

242.
A running account statement kept by PRH in the ordinary course of its business (Exhibit VV) shows that BMPAD owes PRH $18,796,931.71 in respect of unpaid invoices for Orders 001-005. At the hearing on security, Mr. Leconte testified that this number had been slightly revised to $18,796,931.56. (TR.119-20).
243.
The $18,796,931.56 claimed by PRH includes amounts invoiced by PRH for Product delivered to BMPAD and discharged in Haiti and for demurrage and other charges on the vessels carrying that Product. PRH has provided credible documentary evidence for these charges and BMPAD has provided no contrary evidence.
244.
The unpaid invoiced amount also includes amounts invoiced by PRH to BMPAD on March 3, 2021, relating to the diversion of "SM Osprey" cargo and the cancellation of the "Minerva Julie" cargo:

● PRH invoiced BMPAD for deviation costs of $435,077.64 on the "SM Osprey". PRH has provided a deviation calculation from its supplier, Trafigura, indicating that PRH incurred an overall deviation cost for the "SM Osprey" of $419,144.84. The difference in the amounts appears to result from PRH's use of the contractual demurrage rate for its invoice to BMPAD which was slightly higher than the demurrage rate used by Trafigura.

● PRH invoiced BMPAD for demurrage on the "Minerva Julie" in the amount of $932,319.44. PRH has provided a Laytime and Demurrage Calculation from its supplier, Trafigura, indicating that it incurred a demurrage charge for the Minerva Julie" of $839,087.50. The difference in amounts appears again to result from PRH's use of the contractual demurrage rate for its invoice to BMPAD which was slightly higher than the demurrage rate used by Trafigura.

● PRH also invoiced BMPAD for $513,861.00, a cost that it claims to have incurred for cancellation of the freight of the "Minerva Julie." In support of this charge and the other charges mentioned above, PRH provided an email sent by Marianna Papathanasiou, Trafigura's Freight Analyst to Anna Kotman, Operations Manager for a freight consultant to PRH, which states that "internal recharges" had been booked for the following items:

• SI 93993 PI 282821 for freight and insurance (USD 410,443.00)

• SI 93994 PI 282822 for Demurrage (USD 839,088.00)

• 5193995 PI 282823 for Port Expenses (USD 103)

245.
Again, PRH has provided credible documentary evidence supporting these charges and BMPAD has provided no contrary evidence.

ii. Respondents' contention that Product was incorrectly invoiced and therefore that it paid PRH an excess of $10,509,893.53

246.
Respondents have not attempted to dispute any individual invoiced amount. Instead, as described above, they contend that Product was incorrectly invoiced based on the pricing formula that appears in Appendix 1 to each Contract –i.e. the relevant Platt's for each product plus: $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel rather than and the pricing formula in Clause 6.1 of each Contract and that, as a result, BMPAD paid PRH $10,509,893.53 in excess of the amount due. For the reasons stated above, we reject that contention and hold that pricing in accordance with Appendix 1 of each Contract was correct. We therefore reject Respondents' counterclaim based on alleged overpricing.

iii. Respondents' contention that PRH engaged in fraud or other improper conduct in connection with the Contracts.

247.
At various places in its submissions and correspondence in this matter, Respondents have asserted in conclusory fashion that PRH engaged in fraud or other improper conduct in connection with the Contracts.
248.
As noted above, Respondents adduced no evidence of fraud or improper conduct in the negotiating process that led to the conclusion of the Contracts. At the hearing, Mr. Harris did not cross examine PRH's witnesses on this subject and did not present Mr. Saint-Fleur, who was present during the negotiations and, if it existed, could have provided such evidence.
249.
The first witness called by PRH was Kenni Christofferson, an independent consultant who provided CFO services to PRH. Mr. Christofferson testified as to the amounts invoiced by PRH to BMPAD and as to the calculation of various items of damages claimed by PRH in this arbitration. On cross-examination, Mr. Harris asked whether in calculating damages, Mr. Christofferson was aware of how much was paid by PRH to Carrolton Services, which was used by PRH as agent for receiving and making payments and arranging logistics under the Contracts. Mr. Christofferson responded that he was not aware. Mr. Harris then asked a number of questions based on the premise that a Mr. Dustin Porte was connected with Carrolton Services and that Mr. Porte was involved in what Mr. Harris referred to as the "central bank heist led by Mr. Leconte in February 2017." Mr. Harris then asked questions relating to the amounts claimed for attorney's fees, whether Preble Rish had offices in certain cities listed on the stationery used for its invoices, and the demurrage claimed for the vessels "SM Osprey" and "Minerva Julie."
250.
The second witness PRH called was Nathalie Brunet, vice president and COO of PRH. On a brief direct examination regarding questions that Mr. Christofferson had been unable to answer, Ms. Brunet testified that Carrolton was PRH's paying agent" and received $50,0000 per order for their services in connection with the fuel contracts and that the cities listed on the PRH invoices shown to Mr. Christofferson were places where Preble Rish International, a company with which PRH had been previously affiliated, had offices and that the letter head used for the invoices was "old branding material." On cross examination, Mr. Harris asked about the ownership of PRH and about the relationship of various persons to the company; about the services rendered by Carrolton as "paying agent"; whether PRH was current on its annual financial statements; whether Mr. Leconte had an ownership interest in any other companies; where Ms. Brunet lived and how much time she spent in the United States. Mr. Bennett objected to the personal questions to Ms. Brunet and the Panel intervened to ask the purpose of those questions at which point Mr. Harris moved on to another topic. He next asked Ms. Brunet whether she was familiar with certain companies (she testified she was not); whether she was aware of Dustin Porte's interest in Carrolton Services (she testified she was not); whether she was "involved at all with the bank heist or with the Central bank incident back in February 2019"(she testified that she was not); whether she knew certain persons (she testified she did not); and more questions about Carrolton Services and the services they provided.
251.
Mr. Harris continued to explore in his cross examination of Mr. Leconte the arrangement with Carrolton Services and to suggest that someone named Dustin Porte was involved with that company.32 Mr. Harris showed Mr. Leconte pages from Bizipedia which, he suggested, showed such a connection. Mr. Leconte denied that there was a connection between Mr. Porte and Carrolton.
252.
Mr. Harris then asked a number of questions the premise of which was that Mr. Porte and Mr. Leconte had been involved in what he referred to as "the attempted seizure, coup or whatever it was of the Central Bank of Haiti in 2019" and that Mr. Porte was somehow compensated for his participation in that event by the payments from PRH to Carrolton. Mr. Leconte denied any connection with the alleged incident.
253.
After asking Mr. Leconte if he knew the identity of certain persons and the relationships among them, Mr. Harris then returned to the subject of Mr. LaPorte and Carrolton and to the office locations listed on PRH's invoices. Finally, Mr. Harris asked about the Contracts and suggested that, after the parties entered into the Contracts based on the price bid by PRH in the tender, PRH changed the price in Amendment 1 to the Contracts. Mr. Leconte explained that this was incorrect – that Amendment 1 did not change the Contract price and that its purpose was to establish a payment mechanism for the Contracts when PRH failed to open the required letter of credit. Mr. Harris had no further questions.
254.
After a break, Mr. Bennett pointed out that the company used by PRH as its paying agent was Carrolton Enterprises Services LLC, an active company in good standing owned by Chris and Kendra Reade. It was not Carrolton Services LLC, the company to which Mr. Harris had referred in his questioning, in which Dustin Porte was listed as a member and which had been inactive since 2012.
255.
The Panel finds that BMPAD has neither alleged with specificity, nor provided evidence to support, its allegations of fraud. In his direct testimony and on cross examination Mr. Leconte denied any corruption as did Ms. Brunet. Mr. Leconte pointed out that PRH insisted on including in the [C]ontracts a clause by which both parties agreed to comply with the US Foreign Corrupt Practices Act.

iv. Damages for lost profits

256.
PRH also claims damages for lost profits that it would have earned on the unperformed shipments. We shall begin by assuming that, as asserted by BMPAD, Haitian law applies. Ms. Handal has set forth in her declaration the provisions of Haitian law that apply to the award of damages for breach of contract. Article 933, para.1 of the Haitian Civil Code provides, in pertinent part, "any obligation to do or not to do is resolved in damages, in the event of non-performance on the part of the debtor." Under section 939 of the Civil Code, damages due to the creditor are in general of the loss that he has suffered and of the gain of which he has been deprived. Under Article 940, the debtor is only liable for damages which were foreseen or could have been foreseen at the time of the contract. Under Article 941, damages may not exceed the loss proven by the creditor and the gain of which he has been deprived which is an immediate and direct consequence of the breach of the agreement. According to Ms. Handal, "Case law establishes that the legislature left full latitude to the judge on the merits, to assess the facts and circumstances which may give rise to damages" (citing Supreme Court, First section, judgment of July 26th, 1948.)
256.
Lost profits are also recoverable under New York law as "direct damages." See e.g. Am. List Corp. v. U.S. News & World Report, Inc., 75 N.Y.2d 38, 44, 550 N.Y.S.2d 590, 549 N.E.2d 1161 (1989).
257.
First PRH claims as damages the profits it would have earned if (a) BMPAD had received and paid for the product that was to have been delivered on board the "Minerva Julie" and (b) had received and paid for the product remaining to be delivered on a vessel yet to be named under Order 005. The quantities for this aspect of PRH's lost profit claim are:

Vessel Product Quantity (bbls)
"Minerva Julie" Gasoline 141,000
"Minerva Julie" Gasoline 14,500
TBC Diesel 250,000

258.
Second, PRH claims as damages the profits it would have earned if BMPAD had received and paid for the Product it was required to order in November 2020. Under Appendix 1 of each of the Contracts, BMPAD was obligated to purchase the following quantities of Products in the month of November 2020:

Product Quantity
USGC WB No.2 Diesel 550,000 barrels (23,100,000 gallons) of Product each month, plus or minus 10% at the option of the Buyer or Seller
USGC WB Jet 54 75,000 barrels (3,150,000 gallons) of product each month, plus or minus 10% at the option of the Buyer or Seller,
USGC WB MOGAS 87 375,000 barrels (15,750,000 gallons) of Product each month, plus or minus 10% at the option of the Buyer or Seller

259.
The Panel finds that PRH's lost profits on these quantities are recoverable as damages, being the direct, immediate, and foreseeable consequence of BMPAD's breach.
260.
In its PFA, the Panel assumed, for the purpose of calculating lost profits, that BMPAD would exercise its option to order the minimum monthly quantities required under the Contracts – i.e., the number of barrels stated minus 10%. However, PRH has pointed out that historically, for Orders 001-005, BMPAD never exercised its option to order less than the contractually specified quantities. We find it more likely than not, if the Contracts had continued, BMPAD would have continued to order at least the contractually specified quantities and shall calculate lost profits based on those quantities.
261.
As noted above, on June 25, 2020, PRH entered into a contract with Trafigura Pte Ltd (Exhibit PPP) (the "Trafigura Purchase Contract") for the purchase on a DAP Port au Prince basis, of the following quantities of the products. The quantities to be purchased were sufficient to fulfill PRH's remaining obligations under the Fuel Supply Contracts[defined?]. Like the Contracts, the products sold to PRH under the Trafigura Purchase Contract were priced based on the relevant assessments for those products for the bill of lading date published by Platts with a specified margin. It is therefore a simple matter to calculate PRH's margin for each product. Converting the Trafigura cents per gallon premium to dollars per barrel, the margins are per barrel as follows:

Product Premium Trafigura sale to PRH ($/barrel) Premium PRH sale to BMPAD ($/barrel) PRH Margin
Diesel $4.095 $6.55 $2.455
Gasoline $4.83 $8.11 $3.28
Jet Fuel $7.14 $6.28 ($0.86)

262.
Lost profit can be calculated by multiplying the margins for each product by (a) the quantities that BMPAD ordered but failed to receive and pay for under Order 005 and (b) the quantities of each product that BMPAD would have received under Order 006; and (c) subtracting from the total the $50,000 that PRH would have paid to Carrolton Enterprises Services LLC for its services in connection with Order 006.

Product Quantity (bbls) PRH Margin Lost Profit
Minerva Julie Gasoline 141,000 $3.28 $462,480.00
Minerva Julie Gasoline 14,500 $3.28 $47,560.00
TBC Diesel 250,000 $2.455 $613,750.00
November 2020 Diesel 550,000 $2.455 $1,350,250.00
November 2020 Gasoline 375,000 $3.28 $1,230,000.00
November 2020 Jet Fuel 75,000 ($0.86) ($64,500.00)
Carrolton Enterprises Fee ($50,000.00)
Total Lost Profit $3,589,540.00

We hold that PRH is entitled to recover these damages which were the direct and probable consequence of Respondents' breach.33

v. Damages of $1,260,667.80 for Trafigura charges related to the "Minerva Julie" and "SM Osprey"

263.
PRH claims to have suffered additional damages of $1,260,667.80 charged by Trafigura for costs relating to the "Minerva Julie" and "Osprey." In support of its claim, PRH submitted Exhibit RRR, an invoice dated October 1, 2021, from Trafigura listing, inter alia, the following items:

DEAL ID DESCRIPTION VALUE
422688 SM OSPREY - PRICING EXPOSURE 337,554.00
421390 MINERVA JULIE - PRICING EXPOSURE 923,113.80

264.
PRH claims the total of the first two items which are highlighted in the copy of the invoice provided by PRH. (The second two items are included in the unpaid invoiced amounts.) The Panel finds that PRH has now adequately supported a claim of $1,260,667.80 in respect of these costs which, in any event, have not been questioned or disputed by Respondents.

vi. Interest on damages

265.
PRH claims damages for accrued interest on unpaid invoiced amounts and other damages that it has incurred as a result of Respondents' breach. Article 11.4.1 of each Contract provides:

11.4.1. In the event that payment is not made by a due date, the Buyer will be charged the outstanding balance from the date payment is due until the date payment is made at JP Morgan Chase's current base rate plus 5%, payable on demand.

266.
The Panel finds that PRH is entitled to pre-award interest on the amount of $23,647,139.51from November 1, 2020, through August 22, 2022, the date of this award. During that period, J.P Morgan Chase's base rate rose from 3.25 percent per annum to 5.5 percent per annum.34 Using the rates applicable during that period, the Panel calculates interest as follows:

Period Base Rate Plus 5 % Interest
11/1/2020-3/16/2022 3.25% 8.25% $2,672,450.70
3/17/2022-5/4/2022 3.50% 8.50% $264,329.67
5/5/2022-6/15/2022 4.00% 9.00% $239,062.86
6/16/2022-7//28/2022 4.75% 9.75% $265,301.47
7/29/2022-8/22/2022 5.50% 10.50% $163,262.44
Total interest $3,604,407.14

PRH is therefore entitled to $3,604,407.14 in interest for the period from November 1, 2020, through August 22, 2022.

D. PRH's claim for punitive damages

267.
PRH contends that Respondents' frustration of these arbitration proceedings, intentional and premeditated breach of contract, and fraud to induce PRH to continue contract performance, leading to the wrongful seizure of the "Aquila L" and its cargo, warrants an imposition of punitive damages/sanctions of not less than three times what PRH paid in attorney's fees and arbitrators fee, i.e., $4,100,000.
269.
Under New York state arbitration law, [a]n arbitrator has no power to award punitive damages, even if agreed upon by the parties." Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 356 (1976). However, as noted above, the agreement between the parties does not contain a New York choice of law clause. New York courts have held that arbitrators are free to award punitive damages unless their agreement provides not only that New York state arbitration law will apply but also specifically refers to the Garrity rule. In Flintrock Construction Services, LLC v. Weiss, 122 A.D.3d 51 (1st Dep't 2014), the court found that choice-of-law provision providing that the agreement would be "governed and enforced" by New York law, did not prohibit an arbitrator from awarding punitive damages absent "language expressly invoking the Garrity rule, or expressly excluding claims for punitive damages." Id. at 54. See also Russo v. Time Moving & Storage, 194 A.D.3d 976, 977 (2d Dep't 2021) (reinstating punitive damages in arbitration award). The parties have not presented evidence on whether Haitian law permits awards of punitive damages.
270.
To the extent that we are authorized to award punitive damages under New York or Haitian law, we decline to do so in this case. New York law provides that punitive damages, when permitted, may be awarded only for conduct that is outrageous and exceptional. As the Court of Appeals held in Ross v. Louise Wise Servs., Inc, 8 N.Y.3d 478 (2007):

Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations (Walker, 10 NY2d at 405; see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]). In Prozeralik v Capital Cities Communications (82 NY2d 466, 479 [1993]), the Court wrote that punitive damages may be sought when the wrongdoing was deliberate 'and has the character of outrage frequently associated with crime' (citation omitted). The misconduct must be exceptional, as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness ... or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights (Sharapata, 56 NY2d at 335 [citations and internal quotation marks omitted]; see also Wilson v City of New York, 7 AD3d 266, 267 [1st Dept 2004] [misconduct lacked the character of spite, malice or evil motive])…."

Id. at 516. PRH has failed to prove conduct on the part of Respondents meeting this standard.

E. Respondents' counterclaim

As we have found and concluded above, PRH has established by a preponderance of the evidence that Respondents agreed to the pricing formula contained in Appendix 1 to each of the Contracts – i.e., the relevant Platt's for each product plus: $ 6.55 per barrel for diesel, $8.11 per barrel for gasoline and $6.28 per barrel for jet fuel. We find and conclude that Respondents have not met their burden of proof to establish by a preponderance of the evidence that the inclusion of the Appendix 1 price formula was the result of a "mechanical error" or that the Appendix 1 price formula should be ignored in favor of the price formula set forth in Clause 6.1 of each of the Contracts. We also deny Respondents' claim for attorney's fees.

F. PRH's claim for attorney's fees, arbitrators' fees, and costs

271.
PRH has submitted the Declaration of Rick Antonoff dated February 23, 2022 to support its claim for attorney's fees, arbitrators fees and costs.

i. Attorney's fees and costs

272.
In support of its claim for attorneys' fees and costs, PRH has submitted redacted invoices issued by Blank Rome and invoices issued by the Haitian law firm HWA for the services of Sylvie Handal who served as PRH's expert on Haitian law. According to Mr. Antonoff, as of the date of his Declaration, Blank Rome had billed PRH and been paid $1,119.205.50 in fees and $32,494.60 in disbursements and that Blank Rome's records for the months of January and February 2022 reflected unbilled fees of $345,615.00, and unbilled disbursements of $3,080.84. HWA had billed and been paid $125,420.07. Total attorney's fees and costs claimed by PRH is $1,625,816.01
273.
We begin by considering the Panel's authority to award attorney's fees to the prevailing party. Respondents assert that the Panel lacks authority to do so, citing New York state arbitration law which restricts the ability of arbitrators to award attorney's fees. See CPLR 7513. We disagree.
274.
First, even if New York law and the CPLR arbitration provisions apply, the Panel has authority to award attorney's fees because both parties asked the Panel to do so. In their pre-hearing submissions, both Claimant and Respondents sought an award of attorney's fees. Respondents demanded attorney's fees in their Initial Defense Submission and Counterclaim and repeated that demand in their Amended Defense Submission and Counterclaim. It is well settled that, when as here, both parties have requested attorney's fees, the Panel is empowered to award them. See, e.g., In re Arbitration Between Gen. Sec. Nat Ins Co. & AequiCap Program Adm'rs, 785 F.Supp.2d 411, 422–23 (S.D.N.Y.2011); McLaughlin, Piven, Vogel Secs., Inc. v. Ferrucci, 67 A.D.3d 405, 406, 889 N.Y.S.2d 134, 135 (noting that a fee award would be proper when both parties request attorney's fees during an arbitration); In re Matza v. Oshman, Helfenstein & Matza, 33 A.D.3d 493, 494, 823 N.Y.S.2d 47, 48 (1st Dep't 2006) (same); Bear Stearns & Co., Inc. v. Fulco, 21 Misc.3d 823, 830 (Sup.Ct.N.Y.Cnty. Sept. 23, 2008) (same) (collecting cases). In their post-hearing submissions, Respondents belatedly sought to disclaim their repeated requests for attorney's fees in this arbitration by recharacterizing them as mere statements that they intended to seek such relief in subsequent proceedings to be commenced in Haiti. The Panel finds that recharacterization unconvincing and rejects it. See Bear Stearns & Co., Inc. 21 Misc.3d at 830–31 (N.Y. Sup.Ct.2008) (finding no manifest disregard in award of attorney's fees by arbitrators, when the parties had each sought attorney's fees, even though one party later tried to disclaim that request.)
275.
Second, this is an international arbitration, involving two parties domiciled abroad and is subject to the Convention to which both Haiti and the U.S. are signatories. See Stone & Webster, Inc. v. Triplefine Int'l Corp., 118 F. App'x 546, 548–49 (2d Cir. 2004) (citing Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys "R" Us, Inc., 126 F.3d 15, 19 (2d Cir.1997); Bergesen v. Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir.1983) ('[A]ny commercial arbitral agreement, unless it is between two United States citizens, involves property located in the United States, and has no reasonable relationship with one or more foreign states, falls under the Convention.'") Accordingly, the arbitration agreement between the parties is subject to the provisions of Chapters 1 and 2 of the Federal Arbitration Act.35
276.
The FAA is silent as to fee and cost allocation, but courts interpreting the FAA have held that it does not prohibit an award of fees and costs when it applies -- even if the parties have chosen New York law. See e.g., Painewebber, Inc. v. Bybyk, 81 F.3d 1193 (2d Cir. 1996). In Paine Webber, a stockbroker contended that its clients "may not submit their claim for attorney's fees to arbitration, because the Agreement provides that it and its enforcement 'shall be governed by the laws of the State of New York,' under which attorney's fees may not be submitted to an arbitrator unless expressly provided. See N.Y.Civ.Prac. L. & R. 7513." Id. at 1202.

In upholding the district court's dismissal of the stockbroker's claim, the Second Circuit said:

The Agreement provides that "any and all controversies" shall be submitted to arbitration; there is no express limitation with respect to attorneys' fees. For reasons already stated, a choice of law provision will not be construed to impose substantive restrictions on the parties' rights under the Federal Arbitration Act, including the right to arbitrate claims for attorneys' fees. See Mastrobuono, 514 U.S. at [62-63], 115 S.Ct. at 1218–19. Therefore, PaineWebber cannot rely on the New York choice-of-law provision to prevent the Bybyks from seeking in arbitration a remedy that is not foreclosed by the Agreement.

81 F.3d at 1202. Accord, Stone & Webster, supra. See also In re Arb. Between Gen. Sec. Nat. Ins. Co. & AequiCap Program Administrators, 785 F. Supp. 2d 411, 422 (S.D.N.Y. 2011) (upholding an award of attorney's fees where "the Panel could have concluded that the choice of law provision was broad enough on its face to contemplate a fee award, that the choice of law provision only incorporated substantive principles of New York law, that C.P.L.R. 7513 and case law cited by AequiCap did not apply, and that a fee award was proper under Mastrobuono and Bybyk."

277.
Here, the arbitration clause requires arbitration "[i]n the event of a dispute between the Buyer and Seller under this Contract." As in Paine Webber, the arbitration agreement contains no express limitation with respect to attorney's fees. We shall not construe it to impose any substantive restrictions on the parties' rights under the FAA, including the right to arbitrate a dispute about claims for attorney's fees under the Contracts.
278.
We find and conclude that PRH is entitled to an award of attorney's fees and costs. PRH has satisfied us that it has incurred to date attorney's fees and costs of $1,625,816.01. That amount includes attorney's fees and costs incurred in this arbitration, in the New York State litigation relating to the petition to stay and the cross-motion to compel arbitration, in the United States District Court for the Southern District of New York in connection with the confirmation of the PFA and in connection with efforts to establish an escrow account for the deposit by Respondents of funds in accordance with the PFA. However, it also includes fees and costs incurred in federal court proceedings commenced by PRH in New York and Texas to attach or garnish funds in order obtain security for its claims.
279.
Federal courts in New York have upheld the award of attorney's fees and costs incurred not only in the arbitration itself, but also in litigation to compel arbitration. See Stone & Webster, supra. (upholding the award of attorney's fees incurred in litigation to compel arbitration and in the arbitration proceedings that followed). Federal courts in New York have also awarded attorney's fees and costs incurred in proceedings to confirm the award. Shipping Transp. Enterprises, Ltd. v. Transatlantic Petroleum, Ltd., No. 91 CIV. 2065 (MBM), 1991 WL 105223, at *3 (S.D.N.Y. June 10, 1991); Nereus Shipping S.A. v. Castle Supply & Mktg., Inc., No. 95 Civ. 8312 (MBM), 1995 WL 622726, at *1 (S.D.N.Y. Oct. 24, 1995); Cob Shipping Canada Inc. v. Trans Mktg. Houston, Inc., No. 93 CIV. 0033 (PKL), 1993 WL 300043, at *6 (S.D.N.Y. Aug. 4, 1993). We have found no authority, however, and none has been cited to us to support the award of attorneys' fees and costs incurred in separate litigation to attach or garnish funds as security when such attempts are unsuccessful.
280.
Based on our review of the descriptions of the work in Mr. Antonoff's declaration and supporting material and taking into account the circumstances and the record established in this arbitration, we rule that PRH is entitled to recover from Respondents $750,000 in attorney's fees and costs.36

ii. Arbitrators' fees

281.
The parties were directed to deposit in escrow as security for the Panel's fees and expenses $150,000 each for a total of $300,000. PRH has deposited $150,250. Respondents failed to make any deposit.
282.
A total of $53,460 was disbursed to us from the escrow account to cover the Panel's fees and expenses incurred through August 12, 2021, the date of issuance of the corrected Partial Final Award, leaving in escrow the amount of $96,790. As notified to the parties on August 17, 2022, and as itemized in Appendix A, the Panel's fees in this matter from the date of the PFA to the date of this Award are $130,000, leaving a shortfall in the escrow account of $33,210. On August 19, 2022, PRH paid the shortfall amount.
283.
The arbitration clause provided that each party would pay the fees of its appointed arbitrator and that the parties would share equally the fees of the third arbitrator. It is evident from their conduct in this case, including their failure to deposit funds in escrow, that Respondents have no intention of voluntarily paying their share of arbitrators' fees. In these circumstances, we find and conclude that PRH has presented a dispute to us whether arbitrators' fees are recoverable. Under Paine Webber and in light of Respondents' repudiation of this obligation, we find that PRH has no obligation to Respondents to bear any part of the arbitration costs.
284.
In these circumstances, we rule that PRH, as the prevailing party in this arbitration, is entitled to recover from Respondents the total of $183,210 in arbitrators' fees. We further direct that the funds in the escrow account be disbursed to the members of the Panel in accordance with Appendix A.

AWARD

[285].
PRH is entitled to recover from Respondents ROH and BMPAD, and Respondents are jointly and severally liable for, the following amounts:

Unpaid Invoiced Amount $18,796,931.71
Total lost profit $3,589,540.00
Trafigura charges re Minerva Julie and Osprey $1,260,667.80
Total damages $23,647,139.51
Interest at contract rate from 11/1/2020 to 8/22/2022 $3,604,407.14
Total damages plus interest $27,251,546.65
Attorney’s fees $750,000.00
Arbitrators’ fees $183,210.00
Total $28,184,756.65

[286].
If Respondents do not pay the above amount prior to September 21, 2022, interest will continue to accrue on the above amount or any unpaid portion thereof at JP Morgan Chase's current base rate plus 5% per annum from the date of this award until the date of payment in full.
[287].
This Award may be confirmed by the United States District Court for the Southern District of New York or any other court which has jurisdiction.

New York, New York

August 23, 2022

APPENDIX A

[288].
The Panel’s fees and expenses in this matter total $183,210. The parties were directed to deposit in escrow as security for the Panel’s fees and expenses $150,000 each for a total of $300,000. PRH has deposited $150,250. Respondents failed to make any deposit.
[289].
A total of $53,460 was disbursed from the escrow account to cover the Panel’s fees and expenses incurred through August 12, 2021, the date of issuance of the corrected Partial Final Award, leaving in escrow the amount of $96,790.
[290].
The Panel’s fees in this matter from the date of the PFA to the date of this Award are $130,000, as itemized below:

Louis Epstein, Chairman $65,000
LeRoy Lambert $35,000
Robert Shaw $30,000
Total $130,000

[291].
As notified to the parties on August 17, 2022, this left a shortfall in the escrow account of $33,210. On August 19, 2022, PRH paid the shortfall amount.
[292].
The SMA is directed to disburse the $130,000 to the arbitrators in the above amounts, and, upon doing so, to close the account.
[293].
As detailed in the award, PRH is entitled to recover from Respondents and Respondents are jointly and severally liable to PRH for the $183,210 in arbitrators’ fees that PRH has paid.

New York, NY

August 22, 2022

Subsequent citations of this document as a whole:
Subsequent citations of this excerpt:
Click on the text to select an element Click elsewhere to unselect an element
Select a key word :
1 /

Instantly access the most relevant case law, treaties and doctrine.

Start your Free Trial

Already registered ?