"76. The Claimants contended that some particular categories of Development Costs fell outside the scope of the CRL on the basis that the Government had specifically agreed that they should do so and that the costs should be recoverable in any event. This was referred to as the "Agreements Case". It was advanced on the basis that agreement had been reached between the parties at the Management Committee meetings that the Development Costs of four particular work programmes in Tapti and six particular work programmes in Panna Mukta would be recoverable regardless of whether they were incurred in respect of works referred to in Appendix G or the IPOD.
78. The Claimants contend that having lost the estoppel argument, their Agreements Case necessarily fell for determination, and accordingly the failure by the Tribunal to address and determine it constitutes a serious irregularity. The foundation for this submission is sound: it does not follow from the fact that the parties had a common understanding as to the meaning of the CRL as to the recoverability of Development Costs (as the Tribunal found on the estoppel issue) that they could not have agreed ad hoc that the cost of some specific categories of development works should nevertheless be recoverable in full. The Government accepts that as a matter of logic, a determination of the estoppel case in its favour was not necessarily dispositive of the Agreements Case and that the latter had to be decided by the Tribunal. Its short answer to the challenge is that on the facts, the Claimants' Agreements Case relied on their interpretation of particular documentation which was inconsistent with findings that the Tribunal had already made on that documentation in relation to the estoppel case. In other words, in coming to its general conclusion on estoppel the Tribunal had considered and determined the specific questions which then arose in relation to the Agreements Case. In expressing its conclusion that the Agreements Case issue "no longer falls for determination" in the light of its conclusions on the estoppel case, the Tribunal was concluding that on the facts its findings on the estoppel case were dispositive of the Agreements Case, not that the Agreements Case did not need to be addressed. This is what the Tribunal meant by "no longer falls for determination".
79. The issue therefore resolves itself into one of interpretation of that expression. What did the Tribunal mean by "no longer falls for determination"?
80. I keep in mind that the principles governing the approach to the reading of awards are those summarised by Teare J in Pace Shipping Co Ltd v Churchgate Nigeria Ltd (The "PACE")  1 Lloyd's Rep 183 at , including the oft-cited dictum of Bingham J as he then was in Zermalt Holdings that the courts do not approach awards "with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards with the object of upsetting or frustrating the process of arbitration". As I observed in Bulk Ship Union SA v Clipper Bulk Shipping Limited  2 Lloyd's Reports 533 at , where the Tribunal has correctly identified the issues which fall to be decided, the usual inference will be that those issues have been decided.
81. Mr Flynn's main arguments in support of the Government's interpretation were as follows:
(a) The Tribunal set out the rival arguments at some length in these sections of the Award, including the specific factual basis for the Claimants' Agreements Case. This would have been unnecessary had it intended to hold that the issues did not need to be considered. The recitation of each party's case by the Tribunal strongly suggests that it had considered each party's submissions on the issue on their merits and on the facts.
(b) Further support for the Government's construction was to be derived from other sections of the Award where the Tribunal had also disposed of issues by using the wording: "In light of the Tribunal's decision in respect of Issue [x] above, the Tribunal considers that this issue no longer falls for determination". That formulation was also used for Issue 21 (paragraph 25.11); Issue 22 (paragraph 26.3); Issue 23 (paragraph 27.8); and Issue 28 (paragraph 32.7).
(c) In relation to at least some aspects of the Agreements Case it can be seen from the detail of what the Tribunal said, when dealing with the estoppel case, that its findings do necessarily preclude there having been any agreement of the nature contended for by the Claimants in their Agreements Case. That is so, for example, in relation to the "NRPOD" work programme, which formed the largest constituent part of the Agreements Case claim in respect of Tapti (US$670.85m out of a total expenditure of US$698.10m). The interpretation of the words "no longer falls for determination" contended for by the Government is therefore justified by at least some of the detailed findings of fact set out in the Award. Whilst this exercise cannot be performed for every element of the Agreements Case, all the reasons on the face of the Award are consistent with the Tribunal determining that its factual conclusions on the estoppel case, based as they were on what happened at the Management Committee meetings, meant that the Claimants' Agreements Case, similarly so based, could not as a matter of fact be made out.
82. In response, Mr Gearing QC submitted that the similar wording used in the conclusions on Issues 21, 22, 23 and 28 supports the Claimants' construction. Each of those Issues concerned the Claimants' "Upside Case". That was relevant only if the Tribunal agreed with the Claimants that the criterion for applying the CRL was that relating to the production rate, in which case issues arose as to how that criterion was to be applied. As a result of the estoppel case, those Issues simply no longer arose. Therefore the words "no longer falls for determination", as it appeared in the conclusion on those Issues, simply meant "no longer needs to be determined".
83. In my judgment the Claimants' submissions are to be preferred on this issue of the interpretation of the Award. The natural meaning of the words is that the issue was not being addressed and decided, rather than that it was being decided by reference to other findings of fact. The issue did fall for determination, and to say that it did not is an unlikely form of words to use if what the Tribunal intended to convey was that the issue was being addressed and determined.
85. When dealing with [certain other] issues..., the Tribunal recited at some length the rival submissions, notwithstanding that it concluded, correctly, that those arguments did not need to be addressed. The recitation of the rival arguments in those sections of the Award means that the Government's interpretation gains no support from a similar recitation of the Agreements Case arguments in the section of the award under consideration.
86. I note that although it was accepted by the Government before me that the Agreements Case fell for decision in circumstances where the Government succeeded on its estoppel argument, the Award suggests that that was not apparently the stance taken, or consistently taken, before the Tribunal. Notwithstanding that in their evidence and argument before me the Claimants averred that the Government had never suggested that the estoppel case would be dispositive of the Agreements Case, the terms of paragraphs 25.7 and 25.8 of the Award suggest that the Government argued before the Tribunal that the estoppel case meant that the Claimants' "new primary case" could not be raised, where the "new primary case" included the Agreements Case as well as the Claimants' 15-year plateau case that was addressed as Issue 21 in that section of the Award. It is therefore possible that if the interpretation of "no longer falls for determination" is that for which the Claimants contend, it was a conclusion which the Tribunal understood was being contended for by the Government.
87. Accordingly I conclude that the Agreements Case fell for determination and the Tribunal failed to address it. That is a serious irregularity. It gives rise to a substantial injustice. Despite the force of Mr Flynn's submissions in relation to some of the particular elements of the Agreements Case, including in particular the NRPOD work programme, it is clear from the nature of the submissions recited in the Award that the Claimants meet the threshold of establishing that the Tribunal might have reached a decision in their favour, at least in respect of some items worth a substantial amount, had it addressed the Agreements Case. It cannot be said from the face of the Award that the Tribunal would have considered its findings in relation to the estoppel issue dispositive as a matter of fact of all the issues arising in respect of the Agreements Case."
"When considering the Claimants’ Agreements Case, [the Government] submits that the Tribunal should adopt a ‘two-stage process’: as a first step, the Tribunal would have to decide whether, in paragraphs 28.5 and 33.12 of the FPA, it had intended to reject the Claimants’ Agreements Case and only if the Tribunal decided that it had not so intended, could it then, as a second step, determine the Claimants’ Agreements Case on the merits. However, without any clear legal authority in support and the [Government] has referred to none, the Tribunal is not persuaded that such a ‘two-stage process’ is either practical or permissible. In the Tribunal’s view, as a consequence of the remittal, it is required to state its decision on the Claimants’ Agreements Case."
"A tribunal has simply, by error, failed to provide a completed but missing page or pages of their award. Each page is signed by all three members of the tribunal. The award is sent back to the tribunal for reconsideration by order of the court on a challenge...."
Mr Flynn QC says of this example:
"In my submission, it is obvious in those circumstances that the tribunal is not permitted to change its mind and find in favour of, say, the claimant, when it had found in favour of the respondent, or vice versa. All that is necessary and all that is permissible is for the tribunal to provide the missing pages and to confirm its original decision."
"There is no rule that a remittal under section 11 necessarily means that the award ceases to have any effect and the parties start with a clean sheet. The general principle is that the powers and duties of the arbitrators cannot exceed what is necessary to give effect to the order for remittal. If the award is remitted for one specific purpose, such as to amend a name, the arbitrator has no power to amend the award in any other way.
The conclusion their Lordships draw from these exchanges is that on any view the remittal of the award does not deprive it of legal effect. It continues to operate so as to make the arbitrator functus officio, unable to alter his award on those matters which were not remitted.
In this case the remittal was expressly concerned with the form of the award and it follows that the substance of the award remained valid and could properly form the subject matter of the action to enforce it. It also follows that the arbitrator had no jurisdiction to reconsider the merits, and was right to refuse to state a case on the questions of the law which it was said that he should have taken into account."
"the Tribunal does not accept [the Government’s] assertion that the increase in the CRL to enable recovery of Development Costs of USD 177,470 million on NRPOD items of work inside the CRL, was dependent on the Contractor being able to show that the requirements of Article 13.1.4(c) of the PSCs were fulfilled: such condition is not borne out by the relevant MC resolutions. These resolutions clearly show that the Parties had agreed full cost recovery of the Development Costs in the sum of USD 177,470 million without any condition attached to it...."
The emphasis on it being the resolutions that "clearly show" what had been agreed will be noted.
"... once the Tribunal has determined any application for an increase in the CRL for Tapti and Panna Mukta as well as any outstanding issues, the accounts will need to be reworked and should at that stage any dispute arise between the Parties as regards this, the Tribunal would still need to determine such dispute".
The Government argues that, on several grounds, the Tribunal was wrong to make this finding.
[W]hat the Claimants clearly do seek to do is to make further, i.e. new, submissions thus effectively expanding on the Agreements Case by reference to and relying on documents which - albeit on the record prior to the release of the FPA - had not been referred to and relied on by the Claimants in support of their Agreements Case. Neither The Avala nor Stockman appear to expressly address this specific question, namely whether a party could, on remittal, make submissions it had not made prior to the release of the award and in respect of documents which were already on the record at the time the award was rendered but which were relied on in support of a different case/issue....
... [T]he Claimants’ submission taken to its ultimate conclusion, would mean that on remission, a party is entitled to expand and improve on its original case by making further, i.e. new submissions referring to documents which - albeit on the record - it has not previously relied on in support of the remitted issue/case thereby effectively having a second opportunity to make good its case. It is the view of the majority of the Tribunal that this is not the purpose of remission - at least in the present circumstances. This is because the conclusion reached in the High Court Judgement was that the Tribunal had simply not decided the Claimants’ Agreements Case even though this case fell for determination. There is no other ‘defect’ in the FPA: the Claimants’ Agreements Case had been fully argued by the Parties before the Tribunal prior to the release of the FPA and all that the Tribunal is required to do as a result of the High Court Judgment and that the Order is to now determine the Claimants’ Agreements Case as if it had done so in the FPA when this had been released on 12 October 2016.... The Claimants requested a refresher hearing for the purposes of refreshing the Tribunal’s memory on the Claimants’ Agreements Case: however, the fact that the Tribunal has acceded to the Claimants’ request does not mean that the Tribunal has given leave to the Claimants to expand on their Agreements Case. The same applies to the schedule(s) which the Tribunal requested the Parties to produce in respect of the Claimants’ Agreements Case: it goes without saying that the purpose of such schedule(s) is not to give leave to the Claimants to expand on their Agreements Case....
In the majority of the Tribunal’s view, there is a further more fundamental reason for not permitting a party to effectively expand on its original case by making further, i.e. new submissions with reference to documents which -albeit on the record - it had not previously relied on in support of the remitted issue. In particular in this case, the Parties had, prior to the release of the FPA, full opportunity to make such submissions as they wished to make in respect of the Claimants’ Agreements Case including at an oral hearing. If a party was permitted, on remittal, to make submissions it had not made previously in respect of documents which - albeit on the record - it had not previously relied on in support of the remitted issue, such party would not only effectively be given a second opportunity to make good its case but it would also deprive the opposing party of an opportunity to make good its case and address these - in particular in circumstances such as those prevailing in this case.
... Taking all of the above into account and in particular the parts of the decisions in Stockman and The Avala referred to above, it is clear, in the majority of the Tribunal’s view, that in principle, a tribunal is on remittal to decide the remitted issue (as described in the remission order) on the basis of the submissions and the evidence before it at the time of the award’s release. This is clear from Rix J’s decision that "[...] prima facie, a limited remission to an arbitrator will be a remission for the arbitrator to reconsider matters on the issues pleaded or otherwise [even informally] before him at the original hearing"... Only in exceptional circumstances is a tribunal entitled to derogate from this rule, namely if events or matters occurred after the award had been released and even then only if it is necessary for the tribunal to take into account such subsequent matters and events: Stockman, at paragraph 132. Moreover, as is clear from Rix J’s analysis in The Avala as reflected in paragraph 125 of Stockman, a tribunal, on remittal, can no longer permit a party to amend its case in respect of a particular aspect unless the court’s remission order expressly confers on the tribunal jurisdiction to permit this specific amendment...."
"... prima facie, a limited remission would be to deal with the matters before the arbitrator on the pleadings before him at the date of the original award. However, this can only be a prima facie rule, and, in an appropriate case and, depending on the breadth of the order of remission, it may be that the arbitrator has to deal with matters that have occurred since the date of the First Award."
"… in principle, a tribunal is on remittal to decide the remitted issue (as described in the remittal order) on the basis of the submissions and the evidence before it at the time of the award’s release."
The Tribunal majority said that this "was clear from" the passage from Rix J that they cited (see above). However, in that passage Rix J in fact refers to issues and not to submissions and evidence. The distinction is important, and with great respect the Tribunal majority is not here correct in its formulation of the principle.
"[T]he Tribunal notes that the Claimants, in the second column of table 2.4 of the Claimants’ 2014 Post-Hearing Submissions, refer to ‘2003-2010’ as being the ‘Date of Management Committee approval’. Accordingly, the Tribunal concludes that the Claimants have, even before the FPA had been issued, referred to all the MC resolutions on the record of these proceedings which concerned infill well drilling."
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