|AAA||American Arbitration Association|
|AAA Arbitration Rules||Commercial Arbitration Rules of the AAA (2013)|
|Blue Sky||Blue Sky BioServices, Worcester, Massachusetts|
|Business Plan||Multi-Drug Resistant Organism Treatment Laser Business Plan, dated March 3, 2015 (Ex. R-1)|
|CDC||U.S. Centers for Disease Control and Prevention|
|Demand Letter||Nomir's Demand Letter (Settlement Demand for Breaches of EAA), dated September 2, 2016 (Ex. C-7)|
|Draft Demand Letter||Nomir's draft Demand Letter, dated August 3, 2016 (Ex. C-215B)|
|EAA||Exclusive Alliance Agreement, dated November 21, 2014, (effective November 20, 2014) between SGI and Nomir (Ex. C-1)|
|ERI||Edinburgh Royal Infirmary|
|FDA||U.S. Food and Drug Administration|
|HP1||The first human pilot study|
|HP2||The second human pilot study|
|IBA Rules||International Bar Association Rules on the Taking of Evidence in International Arbitration (2010)|
|ICDR||International Centre for Dispute Resolution|
|ICDR Arbitration Rules||International Arbitration Rules of the ICDR (2014)|
|Lasertel||Laster, Inc., a subsidiary of SGI|
|Leonardo||Leonardo MW Ltd., SGI's parent company, a U.K. subsidiary of Leonardo S.p.A. and formerly known as Selex ES Ltd.|
|Leonardo S.p.A||SGI's ultimate parent company (formerly Leonardo-Finmeccanica), an Italian global high-tech company focused on aerospace, defense and security|
|MDRO||Multi-drug resistant organism|
|MDRO Project or Project||SGI's and Nomir's project to develop and commercialize Nomir's laser technology for use in eradicating MDROs from patients' nostrils|
|MRSA||Methicillin-resistant Staphylococcus aureus|
|MSSA||Methicillin-sensitive Staphylococcus aureus|
|Nomir||Nomir Medical Technologies, Inc., Respondent|
|Notice of Dispute||Nomir's Notice of Dispute pursuant to the EAA, dated November 28, 2016 (Ex. C-6)|
|Notice of Termination||Nomir's Notice of Termination pursuant to the EAA, dated March 17, 2017 (Ex. C-13)|
|Parexel Proposal||A Preliminary Proposal for the Study Looking at Noveon Multi-Drug Resistant Organism Laser (MDRO Laser) for use in Ridding the Nares of MRSA Colonies to Reduce Surgical Site Infections by Parexel International, dated September 15, 2016 (Ex. C-282A)|
|Revised Parexel Proposal||Revised Parexel Proposal, dated September 30, 2016 (Ex. C-283B)|
|REC||South East Scotland Research and Ethics Committee|
|S. aureus or Staph||Staphylococcus aureus|
|Selex||SGI and its affiliates Lasertel, Leonardo and Leonardo S.p.A|
|SGI||Selex Galileo, Inc., Claimant|
|Tr. (Oct. 17, 2019)||Transcript of the Oral Argument on Claimant's Motion for Security for Costs, October 17, 2019|
|Tr. (Jan. __, 2020)||Transcript of the Hearing on the Merits, January 20-24, 2020|
|UoE||University of Edinburgh|
|DFA||SGI's Demand for Arbitration, dated May 26, 2017 (supplemented by SGI's Demand for Arbitration pleading, dated May 31, 2017)|
|CC&A||Nomir’s Counterclaim and Answer, dated July 21, 2017|
|ACC||SGI’s Answer to Counterclaim, dated September 14, 2017|
|SGI 1st Mem||Claimant’s Opening Memorial, dated December 15, 2017|
|Nomir 1st Mem||Respondent’s Counter-Memorial, dated March 15, 2018|
|SGI 2nd Mem||Claimant’s Reply Memorial, dated September 9, 2018|
|Nomir 2nd Mem||Nomir’s Rejoinder, dated December 2, 2018|
|SGI 3rd Mem||Claimant’s Rejoinder to Counterclaim (corrected), dated May 31, 2019|
|SGI PHMem||Claimant’s Post-Hearing Memorial, dated March 13, 2020|
|Nomir PHMem||Respondent’s Post-Hearing Memorial, dated March 13, 2020|
|SGI Costs Submission||Claimant’s Submission on Sanctions and Costs, dated April 3, 2020|
|Nomir Costs Submission||Respondent’s Submission on Costs, dated April 3, 2020|
|Bornstein||Testimony of Dr. Eric Bornstein: First Witness Statement, dated Mar. 15, 2018 ("WS1"); Second Witness Statement, dated Dec. 2, 2018 ("WS2")|
|Box||Testimony of Andrew Box: First Witness Statement, dated Dec. 15, 2017 ("WS1"); Second Witness Statement, dated Sept. 7, 2018 ("WS2"); Third Witness Statement, dated May 31, 2019 ("WS3")|
|Creamer||Testimony of Graeme Creamer: First Witness Statement, dated Dec. 15, 2017 ("WS1"); Second Witness Statement, dated Sept. 8, 2018 ("WS2"); Third Witness Statement, dated May 31, 2019 ("WS3")|
|Foreman||Testimony of Christy Foreman (Expert): First Expert Report, dated Sept. 7, 2018 ("ER1"); Second Expert Report, dated May 31, 2019 ("ER2")|
|Glatt||Testimony of Dr. Aaron Glatt (Expert): Expert Report, dated Dec. 2, 2018 ("ER")|
|Hamblin||Testimony of Dr. Michael Hamblin (Expert): First Expert Report, dated Mar. 15, 2018 ("ER1"); Second Expert Report, dated Dec. 2, 2018 ("ER2")|
|Harvey||Testimony of Dr. Brian E. Harvey (Expert): First Expert Report, dated Mar. 15, 2018 ("ER1"); Second Expert Report, dated Nov. 30, 2018 ("ER2")|
|Kay||Testimony of Dr. Jack Kay: First Witness Statement, dated Mar. 15, 2018 ("WS1"); Second Witness Statement, dated Dec. 2, 2018 ("WS2")|
|Malackowski||Testimony of James E. Malackowski (Expert): Expert Report, dated May 31, 2019 ("ER")|
|Rush||Testimony of Garrett W. Rush (Expert): First Expert Report, dated Mar. 15, 2018 ("ER1"); Second Expert Report, dated Dec. 2, 2018 ("ER2")|
|Stamm||Testimony of Laura B. Stamm (Expert): First Expert Report, dated Sept. 9, 2018 ("ER1"); Second Expert Report, dated May 31, 2019 ("ER2")|
|Wilcox & Brown||Testimony of Dr. Mark Wilcox and Dr. Stanley Brown (Experts): First Expert Report, dated Sept. 7, 2018 ("ER1"); Second Expert Report, dated May 31, 2019 ("ER2")|
Professor William W. Park
Boston University Law Faculty
765 Commonwealth Avenue
Boston, MA 02215
Edna Sussman FCIArb
20 Oak Lane
Scarsdale, NY 10583
John J. Kerr, Jr., Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017-3954
"(a) Resolution of all disputes over the meaning and interpretation of this Agreement shall be attempted by conciliation and mediation, and, if such conciliation and mediation is unsuccessful, then disputes shall be finally settled by a single Arbitrator selected by SELEX and NOMIR. If the Parties cannot agree on an Arbitrator, then disputes shall be resolved by an Arbitration Panel comprising one arbitrator appointed by NOMIR, one arbitrator appointed by SELEX, and a Chairman of the Arbitration Panel appointed by the first two arbitrators. Any such arbitration proceedings shall be adopted in accordance with generally accepted American Arbitration Association arbitration rules; shall be held in the State of New York, unless otherwise agreed by the Parties; and judgment upon the arbitration award may be entered in any court having jurisdiction.
(b) In order to initiate procedures for dispute resolution by conciliation, mediation, and arbitration, either Party shall give written notice to the other of its intention to resolve a dispute and, absent satisfactory resolution, then to arbitrate. Such notice shall contain a statement setting forth the nature of the dispute and the resolution sought. If, within thirty (30) days of such notice, a resolution by conciliation between the Parties themselves or by mediation has not been achieved to the satisfaction of both Parties, and, if within sixty (60) days from said written notice, an Arbitrator or Arbitration Panel has not been appointed with an arbitration schedule satisfactory to both Parties, then either Party may proceed with judicial remedies.
(c) The Parties reserve the right and power to proceed with direct judicial remedies against the other without conciliation, mediation, or arbitration for claims relating to breach of the royalty payment and sales reporting provisions of this Agreement after giving written notice of such breach to the allegedly breaching Party followed by an opportunity period of thirty (30) days in which to cure such breach. In collecting overdue royalty payments and securing compliance with reporting obligations, NOMIR may use all judicial remedies available. The Parties reserve the right to seek a restraining order to protect against impermissible disclosure of Confidential Information."
SGI Fact Witnesses
Mr. Graeme Creamer (Director of Major Subcontracts of SGI)
Mr. Andrew Box (Vice President of Capability Development and Chief Technical Officer for Support & Service Solutions of Leonardo)
Nomir Fact Witnesses
Dr. Jack Kay (Chairman of the Board, President and Chief Executive Officer of Nomir)
Dr. Eric Bornstein (Founder, Chief Science Officer and Chief Medical Officer of Nomir)
SGI Expert Witnesses
Dr. Stanley Brown
Dr. Mark Wilcox
Ms. Christy Foreman
Ms. Laura Stamm
Mr. James E. Malackowski
Nomir Expert Witnesses
Dr. Michael R. Hamblin
Dr. Aaron Glatt
Dr. Brian E. Harvey
Mr. Garret W. Rush
The following terms are defined solely for the purposes of this Agreement.
‘SELEX’ shall include SELEX Galileo Inc., and any other entities which SELEX controls through majority ownership or through other means.
‘Field of Use’ shall mean the use of the Licensed Products, Licensed Patent Rights, Licensed Applications and associated Know-How only for Human Nasal Decolonization of multi-drug-resistant-organisms (‘MDRO’s’).
‘Nomir Technology’ shall mean, only within the Field of Use, all inventions, designs, know-how, and technologies developed or licensed by NOMIR, whether patented or unpatented, including without limitation Intellectual Property, inventions, designs, know-how, and technologies relating to photobiological effects of lasers operating at, near or within the 850 to 890 nm and/or the 910 to 950 nm ranges developed or acquired by NOMIR prior to or after the Effective Date of this Agreement.
‘Licensed Products’ shall mean, only within the Field of Use, products or uses claimed or embodied in a Licensed Patent or Licensed Application or products or uses utilizing NOMIR Technology."
"2. EXCLUSIVE LICENSE
a) NOMIR hereby grants to SELEX an exclusive license (the ‘License’) to the NOMIR Technology, including all of NOMIR’s rights in Licensed Patents, Licensed Products and Licensed Applications and Know-How (subject to the rights retained by NOMIR as described below) to make, use, sell, have made, import, and export Licensed Products, Licensed Applications and Licensed Services. The scope of this License shall be restricted to the Field of Use and the Territory."
"5. RESPONSIBILITIES OF NOMIR
a) NOMIR Know-How and Support - NOMIR shall provide to SELEX at no charge reasonable amounts of technical consulting assistance for hardware and software modifications to the NOMIR Noveon platform, the conduct of in vitro, pilot. clinical trials and regulatory compliance (FDA, EU/CE, TGA, Health Canada, and other international agencies). NOMIR shall also provide to SELEX at no charge reasonable amounts of technical and business support and advice for public relations, marketing and business development planning and training as required in the biological effects of the technology.
b) NOMIR will have the lead role in technology research and development relating to the NOMIR Technology, but NOMIR shall not be obligated to develop the NOMIR technology beyond its current state as of the Effective Date."
"6. RESPONSIBILITIES OF SELEX
a) SELEX shall use all reasonable efforts to maximize Net Sales Revenues in the Territory to be derived during the Term from the NOMIR Technology, including Licensed Patents, Licensed Applications, Licensed Products and Licensed Services.
b) SELEX shall, as necessary to achieve the earliest possible commercialization of the NOMIR Technology and the greatest feasible amount of Net Sales Revenues in the Field of Use and in the Territory, undertake at its own cost: i) hardware and software modifications to the NOMIR Noveon platform, ii) the conduct of in vitro, pilot and clinical trails, iii) regulatory compliance (FDA, EU/CE, TGA, Health Canada, and other international agencies) and iv) product rollout including ongoing revenue generating activities such as sales, marketing, warranty and support.
c) SELEX shall develop and provide to NOMIR within sixty (60) days following the Effective Date a detailed business plan (the ‘Plan') outlining strategy and tactics in the pursuit of marketing and selling laser systems in the Field of Use and the Territory. The Plan shall include a staged approach, first addressing the European Union (‘EU'), then the United States (‘USA') and then the Rest of the World (‘ROW') for i) hardware and software modifications to the NOMIR Noveon platform, ii) the conduct of in vitro, pilot and clinical trials, iii) regulatory compliance (FDA, EU/CE, TGA, Health Canada, and other international agencies) and iv) product rollout including sales, marketing, warranty and support. The Plan shall include a specific but non-binding timetable for the achievement of each of the foregoing phases of activity in the EU, USA and ROW. For the purposes of this Agreement the term ‘EU' does not necessarily include all member countries as market opportunities, but, unless there are compelling reasons not to develop any of the following individual country markets, EU shall include Germany, France, U.K., Italy, Spain, The Netherlands, Poland, Sweden, Belgium, and Austria. The Plan will be based on best available knowledge at the time and subject to change as information and data mature or become available. Geographies within the Territory, other than the USA and the ten designated EU countries cited in the Subsection 6.c), may be subsequently removed from the Plan if the emerging Territory business case does not meet cost benefit and investment targets set by SELEX. The decision to remove such geographies from the Plan will be at the sole discretion of SELEX. SELEX shall inform NOMIR within 30 days of reaching its decision to exclude any geography from the Plan, in which case NOMIR shall immediately be free to pursue any sales and marketing alternatives in such excluded geographies at its sole discretion. The Plan shall also include specific measures and alternative sources to avoid indefinite dependence on sole-source suppliers to be utilized by SELEX for any critical or long-lead-time components that will be included in the Licensed Products. Use of sole source suppliers shall not in itself cause any breach of this Agreement.
d) SELEX will provide to NOMIR during the Term of this Agreement semi-annual reports (SELEX format), every six (6) months and twelve (12) months following the Effective Date, on SELEX's business development and technological development activities sufficient for NOMIR to evaluate SELEX's compliance with its obligations under the Plan.
e) NOMIR shall, within fifteen (15) business days of receipt of the SELEX Plan and semi-annual updates thereto specified in subsections c) and d) of this Section 6, advise SELEX of any questions, comments or requested changes to the Plan. The Parties shall promptly work together in good faith to resolve any such matters.
f) SELEX shall use its best efforts to achieve the quarterly revenue milestones and pay NOMIR the Minimum Quarterly Royalties specified in the attached Exhibit B: Minimum Forecasted Quarterly Royalties.
g) NOMIR shall, within fifteen (15) business days of receipt of the SELEX Plan and updates thereto specified in subsections c), d), e) and f) of this Section 6, advise SELEX of any questions, comments or requested changes to the Plan. The Parties shall promptly work together in good faith to resolve any such matters.
h) SELEX will have the lead role in design and manufacturing and will collaborate with NOMIR on product designs and performance features. However, NOMIR’s role in this regard shall be only advisory, and SELEX shall be solely responsible for design and manufacturing decisions.
i) The Plan may be amended from time to time by mutual agreement of the Parties as circumstances change and as may be required to achieve the objectives of this Agreement. The Parties will keep each other informed of all efforts being undertaken under this Agreement.
j) SELEX Know-How and Support - SELEX shall provide to NOMIR at no charge reasonable amounts of technical assistance for hardware and software modifications to the NOMIR Noveon platform, for research purposes of Future Inventions as defined in Section 4 of this Agreement. This may also include the loan provision of modified hardware and/or software as agreed between the Parties."
Each Party shall defend, indemnify and hold the other Party harmless from and against any and all claims, actions, suits, loss, injury, expenses, damages, liability, costs and expenses (including reasonable attorneys’ fees) of any kind or nature arising out of, or resulting from, the exercise or practice of any license granted under this Agreement, including without limitation, liabilities arising from the research, Third Party collaboration, clinical studies, production, manufacture, sale, use, lease, or advertisement or Licensed Products, Licensed Applications or Licensed Services, except to the extent caused by the other Party’s willful or negligent acts or omissions as determined by a court of competent jurisdiction.
Notwithstanding any other provisions and clauses of this Agreement neither Party shall be liable for loss of use, loss of business, loss of revenue, or any other incidental, special, indirect, consequential loss or damages, or punitive or exemplary damages to the other Party howsoever caused."
"10. TERM AND TERMINATION
(c) NOMIR shall have the right to terminate this Agreement if SELEX ceases material development and commercialization of Licensed Products pursuant to the Plan and such failure is not cured within sixty (60) days following SELEX's receipt of written notice of such failure."
"11.4 ENTIRE AGREEMENT; MODIFICATION; WAIVER
Aside from the referenced Confidentiality and Mutual Non-Disclosure Agreement, this Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the Parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver."
"Notwithstanding any other provisions and clauses of this Agreement neither Party shall be liable for loss of use, loss of business, loss of revenue, or any other incidental, special, indirect, consequential loss or damages, or punitive or exemplary damages to the other Party howsoever caused."
Graeme Creamer testified that the intent of this provisions was to avoid the situation of a legal proceeding in which one party seeks speculative lost profits. Without knowing whether the science worked, whether regulatory approval would be obtained, and whether the product would succeed in the market, SGI wanted to exclude recovery of profits of any kind and avoid any potential dispute over forecasts. The provision was not in the early drafts of the EAA, and Creamer included it in one of his markups. Creamer discussed this provision in a teleconference with Kay, and, according to Creamer, Kay agreed that it was the Parties' mutual understanding that neither Party would be liable for lost profits in the event of a breach by the other. Because the EAA is a development contract, Kay said he accepted the rationale and supported the inclusion of this provision.50 Jack Kay did not remember this conversation. He testified he doubted the discussion took place, but confirmed the provision was added by SGI. Kay testified that as CEO he focuses on the business aspects of contracts and leaves legal aspects to others more appropriate.51 Creamer testified that he did not discuss Section 9 of the EAA with anyone at Nomir other than Kay, and he did not discuss the provision with Nomir's General Counsel Richard Goodkin.52 Mr. Goodkin did not provide a witness statement.
UL Approval : In mid-2015 Selex, with assistance from regulatory consultant Emergo, began seeking approval by Underwriters Laboratories ("UL") of the laser under International Electrochemical Commission ("IEC") standards for electrical safety of medical equipment. Following a series of modifications to the MDRO laser after receiving UL’s draft report, UL granted a "Notice of Completion and Authorization to Apply the UL Mark" on May 27, 2016. On July 21, 2016, UL further sent notification that all testing had been completed with compliant results. However, Lasertel learned in March 2016 that a new IEC safety standard might apply to the MDRO laser. On the advice of Emergo, SGI and Lasertel pursued a waiver of this new standard.69
NHS Lothian Medical Physics Department Approval : Selex began seeking approval from NHS Lothian's Department of Medical Physics for HP2 in September 2015. After receiving and testing the MDRO Laser and extensive correspondence with Selex, NHS Lothian sent its approval on February 9, 2017.70
REC Approval : UoE submitted the HP2 protocol to REC for approval in September 2016. After making a number of amendments, UoE received REC approval on November 25, 2016.71
MHRA Approval : In October 2016, the UK's Medicines and Healthcare products Regulatory Agency ("MHRA") requested clinical investigation notification from Selex. Following receipt of approval from NHS Lothian, Selex submitted documentation to MHRA on February 15, 2017. After requesting and receiving additional information, MHRA granted approval on May 3, 2017, after Nomir terminated the EAA.72
"Two different doses are presented: an effective in vitro killing dose and a safe in vivo dose. The effective dose [for in vitro killing] is demonstrably unsafe [in vivo, i.e. on human patients], and the efficacy of the safe dose [on human patients] is unconfirmed..."111
1) SGI breached the EAA by transferring its contractual responsibilities to its affiliate Leonardo without authorization.
2) SGI breached the EAA by conducting unnecessary and improper research in Edinburgh, resulting in delays to the MDRO Project.
3) SGI breached the EAA by using Edinburgh as the sole venue for the two human pilot studies, despite repeated warnings from Nomir.
4) SGI breached the EAA by pursuing a laser-alone strategy.
5) SGI breached the EAA by assigning to Lasertel inventions that were rightfully Nomir's.
Nomir stated that it anticipated damages of almost $150 million.176
"NOMIR shall have the right to terminate this Agreement if SELEX ceases material development and commercialization of Licensed Products pursuant to the Plan and such failure is not cured within sixty (60) days following SELEX’s receipt of written notice of such failure."
The "Plan" refers to the "Business Plan."186 "Licensed Products" refers within the Field of Use (i.e. human nasal decolonization of MDROs) to products or uses claimed or embodied in a licensed patent or patent application or products or uses utilizing Nomir Technology.187
Parties knew from the start that there would be relatively few MRSA-colonized patients but many MSSA-colonized patients enrolled in the pilot studies.211
With respect to Section 6(b), Nomir argues that the "as necessary to achieve" standard is more than an efforts-based standard.231
"SELEX shall, as necessary to achieve the earliest possible commercialization of the NOMIR Technology and the greatest feasible amount of Net Sales Revenues in the Field of Use and in the Territory, undertake at its own cost: i) hardware and software modifications to the NOMIR Noveon platform, ii) the conduct of in vitro, pilot and clinical trials, iii) regulatory compliance.and iv) product rollout including ongoing revenue generating activities such as sales, marketing, warranty and support."
Nomir contends that Section 6(b) required SGI to do what was "necessary" in respect of the pilot and clinical trials to achieve the "earliest possible commercialization" of the Nomir Technology (i.e. the laser-plus-antibiotic product) and "greatest feasible amount" of revenue. According to Nomir, the relevant inquiry in Section 6(b) is whether SGI has done what was "necessary," not whether SGI has expended some specific level of effort.232
"SELEX shall use all reasonable efforts to maximize Net Sales Revenues in the Territory to be derived during the Term from the NOMIR Technology."
According to SGI, Section 6(a) creates an overall standard of conduct by SGI. The next subsection, Section 6(b), designates SGI as the party obliged to take steps "at its own cost" as necessary to achieve the goals of the Project. This provision is directed to specifying who has to take and pay for these steps.
"NOMIR shall provide to SELEX at no charge reasonable amounts of technical consulting assistance for hardware and software modifications to the NOMIR Noveon platform, the conduct of in vitro, pilot, clinical trials and regulatory compliance...NOMIR shall also provide to SELEX at no charge reasonable amounts of technical and business support and advice for public relations, marketing and business development planning and training as required in the biological effects of the technology."
Reading Sections 5(a) and 6(b) together, as required by New York law, SGI argues that for the steps necessary to achieve the Project's goals, SGI was the party responsible for undertaking and paying for them, while Nomir was responsible for providing advice to SGI at no charge.233
"The necessary inquiry with respect to reasonable certainty is whether Nomir has proven, by a preponderance of the evidence (‘more likely than not'), that it has suffered damages as a result of SGI's breach. Nomir has satisfied this standard because it is reasonably certain that Nomir's technology is safe and effective, that it will obtain regulatory approval, and that it is commercially viable."263
(a) $1,576,524 in costs incurred developing and manufacturing the MDRO laser hardware267
(b) $1,060,764 paid to UoE for its work on the MDRO Project268
(c) $538,032 in direct labor costs incurred by Leonardo on the MDRO Project269
(d) $460,061 in other expenditures on the Project, including the costs to set up the Selex Medical lab at BioQuarter near ERI ($119,051), payment to a research follow ($312,778), payment to Nomir for work securing intellectual property rights in connection with the Project ($19,448.64), and payment to Emergo for its consulting work on the MDRO Project ($8,783.46).270
The Total is $3,635,381. Of these costs, the Scottish Enterprise Grant reimbursed SGI $529,520. Thus, SGI’s out-of-pocket loss on the Project is $3,105,861.271
|The Arbitration Proceedings:||Legal Counsel Fees Costs and Expenses AAA/ICDR/NYIAC Fees (Total)||$9,037,426.65 2,855,015.30 389,100.00 $12,281,541.95|
|Costs as Sanctions Claim:||Legal Fees (uncover withheld documents and obtain relief)||$208,500|
|Legal and Expert Fees (revise Rejoinder submissions)||524,425|
|Legal and Expert Fees (re-review materials)||103,175|
|The Arbitration Proceedings:||Attorney’s Fees/Expenses Expert Fees/Expenses ICDR and Tribunal Fees (Total)||$8,116,094.70 724,162.33 438,861.73 $9,279,118.76|
|Third-Party Funding Premium:||$33,400,000 or 30% of Award on damages and costs, whichever is greater|
"The arbitral tribunal shall fix the costs of arbitration in its award(s). The tribunal may allocate such costs among the parties if it determines that allocation is reasonable, taking into account the circumstances of the case.
Such costs may include:
a. the fees and expenses of the arbitrators;
b. the costs of assistance required by the tribunal, including its experts;
c. the fees and expenses of the Administrator;
d. the reasonable legal and other costs incurred by the parties;
e. any costs incurred in connection with a notice for interim or emergency relief pursuant to Articles 6 or 24;
f. any costs incurred in connection with a request for consolidation pursuant to Article 8; and
g. any costs associated with information exchange pursuant to Article 21."
(a) $208,500 in legal fees to uncover previously withhold documents and obtain related relief from the Tribunal
(b) $441,563 in legal fees and $82,862 in expert fees to revise SGI's Rejoinder to Counterclaim memorial and expert reports in light of the late-produced documents
(c) $96,050 in additional legal fees and $7,125 in incremental expert fees to re-review materials following the months-long delay of the Hearing caused by Nomir
(d) An unquantified amount associated with reviewing the late-produced documents (the amount left to the discretion of the Tribunal).
SGI seeks a total of not less than $836,100.282
(a) the amount extended by its third-party funder to cover Nomir's legal and other costs of the arbitration, $8,350,000
(b) 400% of the sum advanced by the third-party funder (i.e. 400% of $8,350,000 for a total of $33,400,000), or 30% of the amount of damages (including interest) and costs awarded to Nomir, whichever is higher
(c) interest at the higher of the award rate or 8% above the Bank of England base rate.308
1. Claimant’s claim is granted. Respondent shall pay Claimant $3,105,861 plus interest at the New York statutory rate of 9% from the date of Respondent’s termination of the EAA (March 17, 2017) until the date the sum is paid.
2. Respondent’s counterclaims are denied.
3. The administrative fees and expenses of the International Centre for Dispute Resolution ("ICDR") totaling $79,086.73 and the compensation and expenses of the arbitrators totaling $871,137.17 shall be borne by Respondent. Therefore, Respondent shall reimburse Claimant the sum of $454,543.59 representing that portion of said fees and expenses incurred by Claimant, upon confirmation by the ICDR that Claimant has paid the final deposit request.
4. Respondent shall pay Claimant $2,855,015.30 for its non-attorneys’ fees expenses.
5. The Respondent shall pay interest at the New York statutory rate of 9% on items (3) and (4) above from the date of this Final Award until the date the sums are paid.
6. All amounts mentioned in this section of the Final Award are to be paid within 30 days of transmittal of this Final Award to the Parties.
7. All other claims of the Parties, including claims for costs, are denied.
We hereby certify that, for the purposes of Article I of the New York Convention of 1958, on the Recognition and Enforcement of Foreign Arbitral Awards, this Final Award was made in New’ York, NY, United States of America.