|GLOSSARY OF TERMS AND ABBREVIATIONS|
|AOC||Air Operator Certificate|
|C||Claimant or Sterling Merchant Finance Ltd|
|C SC||Claimant’s Statement of Claim|
|C SR||Claimant’s Statement of Reply|
|C St. C.||Claimant’s Statement on Costs|
|C WS X||Claimant’s Witness Statement n° X|
|Claimant/Sterling||Sterling Merchant Finance Ltd|
|Communication A X||Sole Arbitrator's communications to the Parties|
|Contract||Management of TACV Contract between the Growth and Competitiveness Project and Sterling Merchant Finance Ltd of 30 October 2006 (Doc C 1)|
|Contract Price||The price to be paid for the Services provided under the Contract|
|Doc CX||Documentary evidence presented by the Claimant|
|Doc R X||Documentary evidence presented by the Respondent|
|Doc CLA X||Legal authorities presented by the Claimant|
|Doc RLA X||Legal authorities presented by the Respondent|
|Draft ManagementReport||Draft of the Final Management Report, submitted by the Claimant in August 2008 (Doc C 12)|
|Final Invoice||Invoice No. RBJ/pd383, dated 10 September 2008 (Doc C 19)|
|Final ManagementReport||Management Report submitted by the Claimant on 18 November 2008|
|First Amendment||First Amendment to the Contract, extending its validity for two additional months (Doc C 14)|
|IBA Guidelines||IBA Guidelines on Party Representation, adopted by resolution of the International Bar Association Council on 25 Mary 2013|
|ICDR||International Centre for Dispute Resolution|
|IDA||World Bank’s International Development Association|
|Parties||The Claimant and the Respondent|
|PCA||Permanent Court of Arbitration|
|R||Respondent or the Republic of Cabo Verde|
|R SD||Respondent's Statement of Defence|
|R SR||Respondent's Statement of Rejoinder|
|R St. C.||Respondent's Statement on Costs|
|R WS X||Respondent's Witness Statement n° X|
|Respondent/CaboVerde||The Republic of Cabo Verde|
|PCU||The Growth and Competitiveness Project Coordination Unit|
|Second Amendment||Second Amendment to the Contract, extending its validity for three months (Doc C 15)|
|Sixth Invoice||Invoice No. RBJ/pd/372, dated 30 November 2007 (Doc C 13)|
|Special Conditions||The Contract’s Special Conditions|
|Sole Arbitrator||The Sole Arbitrator deciding on the present dispute|
|TACV||TACV (Transportes Aéreos de Cabo Verde) - Cabo Verde Airlines|
|UNCITRAL Rules||Arbitration Rules of the United Nations Commission on International Trade Law, 2010|
|USD||United States dollar|
|1976 Rules||Arbitration Rules of the United Nations Commission on International Trade Law, 1976|
1850 M Street, NW
Washington, D.C. 20036
United States of America
Attn.: Sir Roger B. Jantio
Tel.: + 1 202 785 3500 (main)
Tel.: + 1 202 785 9020 (direct)
Fax: + 1 202 955 5530 / + 1 202 785 3505
H.E. José Maria Pereira Neves
Palacio do Govemo
Várzea Cidade da Praia
Ilha de Santiago 304
Republic of Cabo Verde
H.E. Ms. Cristina Duarte
Ministry of Finance, Planning and Regional Development
Attn.: Mr. Rui Jorge de Melo Araújo, Legal Counsel
Avenida Amílcar Cabral 107
P.O. Box 30
Republic of Cabo Verde
Fax: +238 260 7507
Tel.: +238 260 7507
firstname.lastname@example.org email@example.com pedrina.silva@.minfm.gov.cv
Ministry of Infrastructure & Maritime Economy
c/o H.E. Dr. Sara Lopes
Republic of Cabo Verde
Tel:+238 261 5699
Growth and Competitiveness Project
Ministry of Economy, Growth and
c/o Mr. Julio Fortes
Avenida Cidade de Lisboa
P.O. Box 323
Republic of Cabo Verde E-mail: firstname.lastname@example.org email@example.com
On 12 January 2015, pursuant to the 1976 UNCITRAL Arbitration Rules [the 1976 Rules"]. Mr. Juan Fernández-Armesto was formally appointed as Sole Arbitrator by the Secretary-General of the PCA2. The Sole Arbitrator's contact details are as follows:
Mr. Juan Fernández-Armesto
Armesto & Asociados
General Pardiñas, 102
Tel: +34 91 562 16 25
Fax:+34 91 515 91 4
PCA’s letter, dated 12 January 2015.
"7.1 Amicable Settlement. The Parties shall use their best efforts to settle amicably all disputes arising out of or in connection with this Contract or its interpretation.
7.2 Dispute Settlement. Any dispute between the Parties as to matters arising pursuant to this Contract that cannot be settled amicably within thirty (30) days after receipt by one of the other Party’s request for such amicable settlement may be submitted by either Party for settlement in accordance with the provisions specified in the [Special Conditions]".
"Any dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination, or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force.
On 3 July 2014, the Claimant wrote to the PCA requesting that the Secretary-General of the PCA designate an appointing authority in the Claimant’s dispute with the Respondent [the "Request"]7. On 9 July 2014, the PCA invited the Claimant to provide additional information and documents regarding the dispute and informed the Claimant that it would proceed in accordance with the 1976 Rules unless the Claimant made a reasoned request for the application of the 2010 UNCITRAL Arbitration Rules [the "UNCITRAL Rules"].
PCA’s letter, dated 9 July 2014.
"1.2 Law Governing the Contract
This Contract, its meaning and interpretation, and the relation between the Parties shall be governed by the Applicable Law".
(a) "Applicable Law" means the laws and any other instruments having the force of law in the Government’s country (or in such other country as may be specified in the Special Conditions of Contract (SC)), as they may be issued an in force from time to time".
- The Claimant argued for the "closest connection or the most significant relationship doctrine" and concluded, once again, that the applicable law should be the law of the District of Columbia23.
- The Respondent averred that, by not agreeing on any other law, the parties were accepting, pursuant to Article 1.1, that "the laws [...] in the Government’s country" (namely, Cabo Verde) be applied24. Alternatively, the object of the Contract was the privatisation and restructuring of a state-owned company in Cabo Verde - a clear sign that the applicable law should be that of Cabo Verde25. Finally, the Respondent highlighted that the law with the closest and most real connection with the Contract was Cabo Verde’s law, since this was the place of performance26.
"4.2 The Statement of Claim shall:
4.2.1 include as attachments all documents in possession, custody or control of the Claimant, on which it wishes to rely;
4.2.2 identify the fact witnesses and expert witnesses the Claimant wishes to present, and present their statements and/or reports".
"4.7 The scope of this Statement of Reply shall be limited to replying to the argumentation set forth by the Respondent in its Statement of Defence, and to completing the argumentation set forth in the Statement of Claim with evidence which could not be made in or produced with the Statement of Claim".
- Admonishing the Party Representative;
- Drawing appropriate inferences in assessing the evidence relied upon, or the legal arguments advanced by the Party Representative;
- Considering the Party Representative’s misconduct in apportioning the costs of the arbitration; and/or
- Taking any other appropriate measure in order to preserve the fairness and integrity of the proceedings.
Negotiation of the performance indicators
- 10% of the Contract Price was to be paid on the commencement date;
- 15% of the Contract Price was to be paid upon submission and approval of the Assessment of TACV’s current operational situation;
- 20% of the Contract Price was to be paid upon submission and approval of the Market Research and Strategic Development Plan;
- 20% of the Contract Price was to be paid upon submission and approval of the Comprehensive Five-Year Business Plan;
- 15% was to be paid upon submission and approval of the List of Potential International Partners and Networks for TACV;
- 20% was subject to a positive evaluation of the management mandate, based on the non-measurable and measurable performance indicators set forth in the Appendixes62.
"Note: The Client shall respond to all deliverables submitted by the Consultant -within 10 business days of each submission. If the Client's response is not forthcoming in that period, said deliverables shall be deemed approved. In the case the deliverables submitted by the Consultant are not approved by the Client, the latter shall detail the specific reasons for any objection and indicate a reasonable timeframe for these objections to be addressed in a satisfactory manner by the Consultant. The spirit of this clarification is to avoid situations where the Client may provide general and subjective feedback to the Consultant with observations that might not be easily corrected in light of the resources available for this assignment."
- Implement TACV’s operational and financial restructuring, leading day-to day operations and implementing the necessary restructuring steps;
- Develop a sound recovery and privatisation strategy for the airline, commencing with an assessment of TACV’s situation and evolution, taking into consideration studies made between 2000 and 2002 and providing a strategic development plan for the privatisation, after a market research, and preparing a comprehensive five-year business plan;
- Identify international partners and networks for TACV;
- Initiate integration and privatisation negotiations, after PCU has allowed concrete negotiations between Sterling and a potential partner to take place.
- Non-measurable performance indicators : this category included parameters considered conditional variables. Such parameters had to be accomplished in full; otherwise, the Contract would not be sustained. The indicators were:
• Safety requirements: under the new management, TACV was to maintain a valid Air Operator Certificate ["AOC"];
• Contract deliverables: the Claimant was required, under the Contract, to provide specific reports, as set forth in Appendices A and B;
• Assessment of TACV’s current operational situation;
• Market research and strategic development plan;
• Comprehensive five-year business plan;
• List of potential international partners and networks for TACV.
- Measurable performance indicators : compliance with these indicators was graded; they could be achieved partially without necessarily resulting in a termination of the Contract. Such indicators were:
• Market share gain on selected routes: under the new management, TACV was to increase its business volume;
• EBITDA/Sales: profitability was to be measured by EBITDA as a function of sales;
• Restructuring of labour costs: the new management was expected to rationalise the workforce and restructure the labour costs.
- EUR 168,877.73 for the fees of the CEO, charged at the rate of USD 1,400 per day94;
- EUR33,190.71 for the management support rendered by a team leader for 35 days prorated at the rate of USD 2,046 per day95.
- The final payment of the Contract Price had not been made, because the end-of-mandate management report submitted by the Claimant was deemed incomplete and was not accepted.
- Sterling was owed payment of management fees for the period from 1 December 2007 to 18 June 2008, pertaining to the extension of the Contract.
- The extension of the Contract was not contemplated in the original funding obtained by the Government and so it would depend on a positive evaluation of the original mandate granted to Sterling97.
a) Declaring that Sterling is entitled to bring a claim to the portion of the invoices owed to the Claimant;
b) Ordering the Respondent to pay to Sterling the total amount owing to it under the invoices RBJ/pd/372 and RBJ/pd/383, being USD 476,143.24 (including interest);
c) Ordering the Respondent to pay the arbitration costs in the case brought by the former CEO against the Claimant, being USD 79,030.55 (including interest);
d) Ordering total amount for loss of business opportunities, being 4.5 million dollars;
e) Ordering the Respondent to pay interest at a simple annual rate of 10.1% until the arbitral award is fully paid;
f) Ordering the Respondent to pay Claimant’s collection cost of USD 210,000.00;
g) Awarding the Claimant costs in this arbitration;
h) Awarding any such other and further relief as the Tribunal deems appropriate".
(i) The Government of Cabo Verde did not breach clause 6.4 of the Management Contract;
(ii) Claimant, in turn, did not fulfil its obligations under said Management Contract and, for this reason. Respondent is under no obligation to pay Claimant the amount corresponding to the last twenty per cent of the lumpsum amount due under the Management Contract;
(iii) Respondent is under no obligation to pay for:
(a) The € 33,190,71 regarding Invoice RBJ/pd/383, given that they do not correspond to any services rendered by Claimant, under the Management Contract or any other;
(b) The purported arbitration costs incurred by Claimant in the proceedings brought forward against it by the former CEO of TACV;
(c) The alleged collection costs incurred by Claimant; and
(d) The amount claimed, first as moral damages, and now as loss of profit, allegedly suffered by Claimant;
(iv) Respondent is not liable for any interest whatsoever over any of the above mentioned amounts, let alone calculated at an interest rate of 10 A,
(v) Pursuant to article 40 of the UNCITRAL Arbitration Rules, Claimant shall bear all costs of the arbitration, including Respondent’s costs with legal assistance and representation".
- Has the Respondent breached its obligations under the Contract by failing to pay the Sixth Invoice? (Section VI, First Issue)
- Does the Respondent owe the Claimant the unpaid amounts under the Final Invoice? (Section VI, Second Issue)
- Is the Respondent accountable for the arbitration proceedings that were brought by the TACV’s CEO against Sterling? Should the Respondent bear the costs of that arbitration? (Section VI, Third Issue)
- Has the Claimant suffered a loss of business opportunities? If so, should the Respondent be held accountable for this loss and compensate the Claimant? (Section VI, Fourth Issue)
- Has the Claimant actually incurred any collection costs? If so, should the Respondent be held accountable for those costs and compensate the Claimant? (Section VI, Fifth Issue)
- What is the interest rate, dies a quo and dies ad quem, applicable to amounts due by the Respondent under this Award? (Section VII)
- Who should bear the costs of this arbitration and in what proportion? (Section VIII)
"subject to a positive evaluation of the management mandate, based on the non-measurable and measurable performance indicators set [forth in the Contract]".
- First, the Contract did not specify how such evaluation had to be carried out — there was thus, no contractual obligation to produce a final management report;
- Second, the Respondent could have carried out its own evaluation without a final management report.
"Note: The Client shall respond to all deliverables submitted by the Consultant within 10 business days of each submission. If the Client’s response is not forthcoming in that period, said deliverables shall be deemed approved. In the case the deliverables submitted by the Consultant are not approved by the Client, the latter shall detail the specific reasons for any objection and indicate a reasonable timeframe for these objections to be addressed in a satisfactory manner by the Considtant. The spirit of this clarification is to avoid situations where the Client may provide general and subjective feedback to the Consultant with observations that might not be easily corrected in light of the resources available for this assignment".
- The Claimant’s letter of 29 January 2009, in which the Claimant acknowledges that the Final Management Report was not accepted126 ;
- The Claimant’s admission to have held conversations with the Head of the PCU, Mr. Rui Cardoso Santos, during which Mr. Santos stated that he would like to "see more quantifiable data in the report"127;
- The email of the Head of the PCU making comments on the Final Management Report128.
- The Contract does not mention a Final Management Report, and thus, if submitted voluntarily, it is not subject to a deadline;
- And even if it was subject to a deadline, this deadline would be set after the management was over, i.e. after 30 November 2007, because the Contract was extended twice since its original expiration date.
- The First Amendment is dated 30 November 2007140:
"[...] Considering that the Parties are in negotiation to extend the Contract and determine the terms and conditions of this extension.
Considering that it is necessary to avoid any management vacuum of the company while negotiations for the extension are still on going. [...]
[...][T]he parties hereto agree [...] 1. To extend the said Management Contract for a period of two months. This Agreement may further be extended upon approval by the Parties."
- The Second Amendment, signed on 30 January 2008, provides141:
"[...] Considering the amendment to the Management Contract signed on November 30, 2007, which will expire on January 30, 2008.
Considering that the Parties are still in negotiation to extend the Contract and determine the terms and conditions of this extension, and that it is necessary to avoid any management vacuum at the company while negotiations for the extensions are still ongoing. [...]
To extend the said Management contract for a period of three month, in addition to the two-month extension signed on November 30, 2007. This Agreement may further be extended upon approval by the Parties".
- Sterling managed TACV at least until mid-June 2008,
- By August 2008 Sterling produced the Draft Management Report;
- On 18 November 2008 Sterling filed the definitive version of the Final Management Report.
"Note: The Client shall respond to all deliverables submitted by the Consultant within 10 business days of each submission. If the Client’s response is not forthcoming in that period, said deliverables shall be deemed approved. In the case the deliverables submitted by the Consultant are not approved by the Client, the latter shall detail the specific reasons for any objection and indicate a reasonable timeframe for these objections to be addressed in a satisfactory manner by the Consultant. The spirit of this clarification is to avoid situations where the Client may provide general and subjective feedback to the Consultant with observations that might not be easily corrected in light of the resources available for this assignment".
- Assessment of TACV’s current operations situation, with focus on:
• Corporate structure & human resources management
• Finance & controlling
• Network management
• Product & services
• Sales & distribution
• Flight & ground operations
- Market research and strategic development plan
- Comprehensive five-year business plan
- List of potential international partners and networks for TACV.
- Mr. Cardoso-Santos has testified in writing that, when the Final Management Report was received, the PCU found that it was incomplete and did not allow for an evaluation of the management mandate and that Mr. Roger Jantio was informed several times accordingly155, including in a detailed email listing the reasons behind PCU’s decision to withhold the last instalment156; unfortunately Mr. Cardoso-Santos is unable to provide specific details of PCU’s communications with Sterling and to retrieve the alleged email157. The Sole Arbitrator finds that Mr. Cardoso-Santos’ witness statements lacks documentary support.
- The Respondent’s letter of 8 January 2009158 simply states that the Final Management Report is "deemed incomplete and has not been accepted"; but the mere assertion that a requirement has not been met does not discharge the Respondent of its bona fides duty to evaluate the Claimant’s management and to inform the Claimant of the result of such evaluation.
- The Respondent also refers to the Claimant’s letter of 29 January 2009159 in which Sterling states that "a couple of weeks ago" Mr. Cardoso-Santos had expressed in conversation that he wished to see more quantifiable data in the report160. The full quotation of the letter is the following161 :
"Indeed, to this day, we have not received formal comments, other than the conversation I had with Mr. Rui Cardoso-Santos a couple of weeks ago and during which he expressed the desire to see more quantifiable data in the report. This clearly means that the corresponding invoice for this report is due as of November 28, 2008".
The full quote in fact proves the contrary of what the Respondent is averring. It rather shows that by January 2009 Cabo Verde had failed to make any formal evaluation of the report, and that all that had happened was an informal conversation between Messrs. Jantio and Cardoso-Santos in which additional data had been requested.
- The safety requirement would be deemed satisfied if TACV was able to maintain a valid AOC as a proof of total compliance with all the applicable safety regulations165 and if Sterling pursued TACV’s application to full IATA membership166. According to the Draft Management Report, TACV maintained its AOC167; and the Claimant explained that in order to acquire the full IATA membership, TACV needed to obtain the IATA Operational and Safety Audit (IOSA) certification - and Sterling engaged a specialist firm "Partners and Resources for Operational Safety" to carry out an audit to determine the level of fulfilment of the standards required for IOSA registration168. The Sole Arbitrator is of the opinion that the safety requirements were met.
- As to the contract deliverables, the Claimant had to deliver the reports mentioned in Appendix B of the Contract; as the Parties both agree, the Claimant met this obligation169.
- Market share gain on three selected routes: pursuant to the Contract172 the percentage of sold seats, against the competing airlines, in the routes Sal-Lisbon-Sal and Praia-Dakar-Praia should be measured (there is no indication that a third route was chosen). The Draft Management Report does not single out data with respect to these routes, but indicates that the passenger seats sold in the regional market (which includes the Praia-Dakar-Praia route)173 and international market (which includes the Sal-Lisbon-Sal route) had increased comparing the first quarter of 2007 with the first quarter of 2008 by 94.35% and 4.33%, respectively174. There is no sufficient evidence to rule out that this indicator had not been met; in fact, there is circumstantial evidence that the number of passengers in the routes mentioned had increased.
- EBITDA/Sales: the Draft Management Report notes that staffing constraints have prevented an overhaul in the accounting system, as a result of which the 2007 books were not ready in time175. Since the Parties have not produced the final version of the Report, the Sole Arbitrator cannot establish whether this indicator was not complied with.
- Recommendation on labour costs restructuring: the Draft Management Report states that 164 positions were redundant of which 88 had already been laid off176 and sets out the five objectives of the new labour structure177. The Sole Arbitrator is of the opinion that the Claimant met this indicator.
- First, the Claimant has failed to marshal any evidence of this additional consultancy work that it claims to have performed: there is no information regarding the activities of Sterling as a consultant between December 2007 and April 2008.
- Second, the Claimant has not even explained how the daily fee of USD 2,046.00 per day mentioned in the invoice198 was reached.
- The unpaid Sixth Invoice was issued before any monies were owed to Mr. Filiatreault; there is thus, no causal link between the Respondent’s unlawful conduct and Mr. Filiatreault’s claim;
- Mr. Filiatreault’s unlawful dismissal cannot be attributed to the Respondent because the Respondent had no employment contract with him; it was the Claimant who employed Mr. Filiatreault.
- Capacity to recruit new talent and to establish new partnerships219.
- Business opportunities in the African market220; in particular, the Claimant submits that it lost the contract to deploy airport security at the Republic of Congo’s international airports in Brazzaville, PointeNoire and Ollombe [the "Congo Deal"] because SITA, the Claimant’s technical partner, stepped back once it learnt about the arbitration launched by TACV’s CEO. The Congo Deal had been valued at USD 80 million and Sterling’s share represented 20% or USD 16 million pre-minority discount, which the Claimant adjusts to USD 4.5 million by using a comparable offer made by Aurora Private Equity S.A. to acquire 20% of the Congo Deal for USD 4.5 million221.
"Quem estiver obrigado a reparar am dano deve reconstituir a situação que existiria, se não se tivesse verificado o evento que obriga à reparação".
- A contractual or otherwise unlawful breach, due to an action or an omission;
- Fault on the debtor’s part;
- Damage; and
- A causal link between the breach and the damage.
- The Respondent has denied being in breach225;
- There is no evidence of damages: under the Portuguese doctrine and corporate entities do not endure and are not entitled to moral damages226; they can only claim patrimonial damages, resulting from a given offense to their good name or reputation, which they must show led to a tangible loss of profit227; but here the Claimant did not produce any evidence supporting the alleged damage, or any credible basis for its quantum.228
- The Claimant has failed to explain how the purported offense by the Respondent could have led to any damage and what could justify being awarded moral damage229.
- The Claimant has only adduced a Preliminary Investment Agreement230 entered into between Airport Biometric Holding Limited and Aurora Equity Investors, S.A. in which Sterling would assume the position of technical assistant to a company to be later incorporated in Congo. There is no evidence that such agreement has actually materialised.
- The Claimant has further failed to show the material damage that Mr. Kambala Achi’s refusal to become Sterling’s chief economist231 caused Sterling.
Statement of Claim
"79. B. Ordering the Respondent to pay to the Claimant [...]
iii. interest on any payment awarded above a compound annual rate of 10 percent through the date of the award. [...]
vii. ordering post-award interest at an annual rate of 10 percent compounded monthly until the award is paid in full".
Statement of Reply
"94. The Claimant respectfully submits that the Tribunal should issue an award in its favour and against the Respondent: [...] (e) Ordering the Respondent to pay interest at a simple annual rate of 10.1% until the arbitral award is fully paid [...]"244.
"8.2 [...] Respondent hereby confirms its request that the Sole Arbitrator adjudge and declare that: [...] (iv) Respondent is not liable for any interest whatsoever over any of the above mentioned amounts, let alone calculated at an interest rate of 10% [...]".
- First, the Claimant produces its Final Management Report;
- Then, the Respondent performs an evaluation of the management (Article 6.4), based on the information contained in the Final Management Report;
- After the Respondent has given a positive review, the Claimant issues the invoice for the final payment of the outstanding 20% of the Contract price;
- The Respondent pays the invoice within 30 days of receipt (Article 6.5).
"The term "costs" includes only:
(a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with article 41;
(b) The reasonable travel and other expenses incurred by the arbitrators;
(c) The reasonable costs of expert advice and of other assistance required by the arbitral tribunal;
(d) The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;
(e) The legal and other costs incurred by the parties in relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable;
(f) Any fees and expenses of the appointing authority as well as the fees and expenses of the Secretary-General of the PCA".
"The costs of the arbitration shall in principle be borne by the unsuccessful party or parties. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case".
"There is no evidence that the Claimant pursued dilatory tactics in these proceedings. The Claimant focused its submissions and evidence on the core issues and put forward the witness best positioned to speak on those material issues. The Sole Arbitrator should also take account of the fact that the Respondent raised every argument available to defend the claim some which were implausible and took a highly confrontational tone in all of its submissions".
"In relation to the bold allegation made by the Respondent in Section 2 of the Rejoinder in relation to the alleged misconduct of the Claimant, it is respectfully submitted that it is extremely regrettable that counsel for the Respondent has resorted to such tactic in the arbitration and it did so in an aggressive and confrontational tone, unusual in international arbitration. This is a serious accusation which the Sole Arbitrator should take into account in the assessment of allocation of costs. The Claimant notes that nothing prevents a party from adducing certain evidence in the Reply which was not filed in the first submission but responds directly to claims and allegations made for the first time by the Respondent in the Counter-Memorial."279
- The Sole Arbitrator’s flat fee pursuant to the Terms of Appointment: USD 10,000;
- The Sole Arbitrator’s expenses: USD 314.50 (EUR 289.92);
- Expenses of the PCA in its role as registry pursuant to the Terms of Appointment: USD 250;
- Fee of the Secretary-General of the PCA in his role as appointing authority: EUR 750.
1. Orders the Republic of Cabo Verde to pay to Sterling Merchant Finance Ltd an amount of USD 190,098.12 due under Invoice No. RBJ/pd/372;
2. Orders the Republic of Cabo Verde to pay to Sterling Merchant Finance Ltd interest at a simple annual rate of 8% p.a. on the amount stated in para. 273(1) supra from 29 January 2009 until full payment;
3. Orders the Republic of Cabo Verde to pay to Sterling Merchant Finance Ltd USD 7,616 and EUR 375 as arbitration costs;
4. Orders the Republic of Cabo Verde to pay to Sterling Merchant Finance Ltd interest at a simple annual rate of 8% p.a. on the amount stated in para. 273(3) supra from the date of this award until full payment;
5. Dismisses all other claims and prayers for relief.