Lawyers, other representatives, expert(s), tribunal’s secretary

Addendum

A) THE PARTIES AND THEIR REPRESENTATIVES

I. Claimant

TURCHROME KROM MADENCILIK SANAVI VE DIS TICARET LIMITED SIRKETI

Ismetpassa Mahallesi 1370 Sokak; No: 42 Daire 801; Konak, Izmir, Turkey

Claimant is represented in this arbitration by

Mr Ian Gatt QC
Mr Chris Parker
Mr Graeme Robertson
Ms Emily Blanshard
Mr Maximilian Szymanski
HERBERT SMITH FREEHILLS LLP
Exchange House Primrose Street London EC2A 2HS United Kingdom Ref: 30955343
Tel: +44 20 7374 8000
Fax: +44 20 7374 0888

And:

Ms Ece Güner
Mr Emir Cami
Mr Onur Başar
GÜNER LAW OFFICES
Levent Caddesi Alt Zeren Sokak No 7 Daire 2
34330 Levent - Istanbul Turkey
Ref: 10249 00001
Tel: +90 212 2 82 43 85
Fax: +90 212 282 43 05

II. Respondents

(1) Mr Mahmut Çevik
Kurucesme Mahallesi
Muallim Nací Caddesi, No: 105B, Kat: 4 Besiktas, Istanbul, Turkey

(2) Mr Halil Ibrahim Çevik
Karşiyaka Mahallesi 752 Sokak. No; 11 Gölbaşi, Ankara, Turkey

(3) Mr Aziz Çevik
Yeni Cami Mah, Dedeman Cad. No. 42 Pinarbaşi, Kayseri, Turkey

(4) Mrs Hülya Çevik
Karşiyaka Mahallesi 752 Sokak, No: 11 Gölbaşi, Ankara, Turkey

(5) Mr Kubilay Çevik
Karyaka 752 Sokak, No: 1 1 Gölbaşi, Ankara, Turkey

(6) Mr Mustafa Selcuk Çevik
Karşiyaka 752 Sokak, No: 11 Gölbaşi, Ankara, Turkey

(7) Mr Serdar Koroǧlu
Türkmen Mahallesi Gazibeǧendi Bulvari Akyar Mevkii, No: 5 Kuşadasi, Aydin, Turkey

(8) Mr Bülcnt Turhan
Hannan Mah. Abdülhakhamil Cad. No: 104/1 Mamak, Ankara, Turkey

(9) Mr Mehmet Akif Bariş Çevik
Yeni Cami Mah, Dedeman Cad. No. 42 Pinarhaşi, Kayseri, Turkey

(10) Mr Mehmet Yilmaz
Liman Mah. 36. Sokak, No: 7-9 Konyaalti, Antalya, Turkey

(11) Ms Yeşim Çevik
Yeni Cami Mah, Dedeman Cad. No. 42 Pinarbaşi, Kayseri, Turkey

(12) Mr Yunus Entre Çevik
Yeni Cami Mah, Dedeman Cad. No. 42 Pinarbaşi, Kayseri, Turkey

(13) KARIZMA ENERJI GAZ PETROL MADENCILIK MERMER INŞAAT TAAHÜT NAKLIYAT ORMANCILIK SANAYI VE TICARET ANONIM SIRKRTl
1065. Cadde, No; 41/4 Asaǧi Öveçler Çankaya, Ankara, Turkey

(14) ÇEVIKIER ENERJI MADENCILIK MERMER TURIZM 1NŞAAT SANAYI VE TICARET LIMITED ŞIRKETI
Yem Carni Mah, Sergi Caddesi, No: 31 Pinarbaşi, Kayseri, Turkey

Respondents are represented in this arbitration by

Mr Adil Levent Decdeli
Ms Gülçin Decdeli Soylu
DECDELI HUKUK BUROSU
19 Mayis Cad. Veteriner Hilmi Sok. Hilmi Palas Apt. No: 4 K:3 D:8 Sisli,
Istanbul
Turkey
Tel: +90 (212) 261 71 16
+90 (212) 261 71 17
Fax: +90 (212) 261 71 15

Mt Gökhan Muhtaranlar
Ms Özlem Gürbüz Pala
MUHTARANLAR & ASSOCIATES
Kore Sehitleri Cad, Istanbloom
No. 16-1 Kat: 11 D: 75
Zincirlikuyu, İstanbul
Turkey

Claimant and Respondents are hereinafter referred to separately as a "Party" and collectively as the "Parties".

B) THE ARBITRAL TRIBUNAL

Stewart Boyd, Q.C.
Essex Court Chambers
24 Lincoln's Inn Fields
London WC2A 3 EG
United Kingdom
+44 020 74 31 15 81 (Phone)

Co-Arbitrator nominated by Claimant

Prof. Dr. Osman Berat Gurzumar
Bilkent University
Faculty of Law
06800 Bilkent - Ankara - TR
+90 312 290 34 90 (Phone)
+90 312 266 40 01 (Fax)

Co-Arbitrator nominated by Respondents

Prof, (em.) Dr. Wolfgang Wiegand
Choisystrasse 7
3008 Bern
Switzerland
+41 31 381 91 93 (Phone)
+41 31 382 30 41 (Fax)

President jointly nominated by the Co-Arbitrators

C) BACKGROUND and PROCEDURAL HISTORY

1.
On 14 December 2017 the ICC-Court approved the Award in the case ICC N° 20548/ZF/AYZ and fixed the Arbitration Costs at USD 1,075. 000.
2.
The Award was signed on 8 January 2018 and sent to the ICC-Court which notified it to the Parties on 15 January 2018. The Award was received on 16 January 2018 by both Claimant and Respondents.
3.
On 13 February 2018 Claimant filed an "Application for correction and/or interpretation of the Award pursuant to Article 35 of the ICC Rules". The Application was made within the time limit as provided pursuant to Article 35 (2) of the ICC-Rules.
4.
By letter of 15 February 2018 the Arbitral Tribunal invited Respondents to submit comments, if any, on the Application not later than 19 Match 2018.
5.
On 19 March 2018 Respondents submitted their comments within the time limit set by the Arbitral Tribunal.
6.
On 12 April 2018 the Arbitral Tribunal submitted the draft Addendum to the Court for approval. Thus, it was sent within the 30 days term after receipt of Respondents' comments as set by the Court in its letter of 14 January 2018.
7.
In its session of 19 April 2018 the Court approved the draft.

D) Considerations and Décisions of the Arbitral Tribunal

8.
The Application comprises three requests. By Request 1 Claimant wants an interpretation regarding the testimony of Mr. Necati Çidar. By Request 2 Claimant requests a correction concerning the calculation of costs. By Request 3 Claimant asks for a clarification of the definitions used in the Dispositive of the Award.
9.
Respondents oppose to all three requests but argue differently. Regarding Requests 1 and 3 they maintain that such requests fell outside the scope of Article 35 of the ICC-Rules and thus are not admissible. As to Request 2 Respondents do not bring forward an argument that deals with the calculation error Claimant refers to. Respondents rather suggest "that this request is only submitted to support Claimant's Request 1.
10.
The Arbitral Tribunal has carefully reviewed Claimant's arguments and Respondents' comments thereupon. Taking both sides’ views into consideration the Arbitral Tribunal concludes as follows:
11.
Request 2 concerns a "computational error" in the decision on costs. Claimant maintains that the refund of USD 10,000 on the advance on costs paid by Claimant has not correctly been taken into account. The Respondents raised no objection against this request as such and, in particular did not question its admissibility under Article 35 of the ICC-Rules. They allege that Claimant requests this correction for a tactical reason (refer to para 9 above). Since Article 35 (2) explicitly names "computational error" as reason for a correction, the request is justified regardless of Claimant's motives as follows from the subsequent observation. When the Court fixed the Arbitration Costs at USD 1,075,000 (refer to para 1), it decided to reimburse USD 10,000 to Claimant. This was taken into account in the Arbitral Tribunal's decision on Costa of Arbitration (para 234 and in the Award Section I.3). It was however not correctly followed in the calculation of the Parties’ Costs (paras 235 (iv) and 236 (1) and Award Section I 4/5). The Award will be corrected accordingly (refer to Dispositive Section E).
12.
As to Request 1 and 3, Respondents maintain that both requests are not admissible (refer to para 9 above). Respondents have explained this argument at length and submitted supporting sources of weight. The Arbitral Tribunal can obstain from discussing the dogmatic issue of admissibility since it has to reject both requests for reasons set out in the following paragraphs.
13.
Request 1 deals with the testimony of Mr. Necati Çidar. It refers to the evaluation of his witness statement (paras. 109-113 of the Award) and requests an interpretation with regard to "Claimant's fraud claim". The request concerns - as Claimant itself states - the Fraud Claim. Such claim was filed alternatively (Claimant's Prayer reads: a an order requesting the Respondents to pay damages for (i) breach of contract of US$ 660 million; or (ii) alternatively for contractual fraud of US$ 234.1 million ; refer to para 78 of the Award, emphasis added). The Arbitral Tribunal granted Claimant's main claim (lit. a of the Prayer). In and for such decision which is based on Respondents' breach of the Contractual Assurance of Capability [clause 2.2(b) of the SPA], the testimony of Mr. Necati played no role. Hence there is no need for interpretation of the section dealing with the Fraud Claim ot of the section dealing with Breach of Contract Claim. The Request I will be dismissed (refer to the Dispositive Section E).
14.
Request 3 concerns the phrasing of the dispositive section.

Claimant requests a clarification of terms (RfA and Assurance of Capability) used in the orders. Claimant itself states that such terms are defined. They are unequivocal and give no rise to doubts. Hence the Arbitral Tribunal deems no clarification necessary and it cannot explain the reasoning in the Addendum. The Request will be dismissed (refer to Dispositive Section E).

15.
None of Parties has requested a decision on costs. Hence, the Arbitral Tribunal proceeds as provided by the Article 37 ICC-Rules.

(1) On 22 February 2018, the ECC-Court fixed an additional advance of USD 14 000. By letter of the same day the Court sent a Request for Payment to the Parties.

(2) On 1 March 2018 Claimant made the requested payment of USD 14 000 by wire and sent a confirmation of payment to the ICC Court. Respondents made no payment.

(3) Based on the preceding considerations and decisions the Arbitral Tribunal decides that Claimant has to bear the costs for the following reasons: Respondents have not requested a correction and have not given any reason for the requests Claimant has submitted. While Claimant was successful with one request regarding a minor calculation error its two other requests will be rejected (refer to Dispositive Section E below).

E) Addendum

I REQUEST 1 is rejected.

II REQUEST 2

The Award is corrected as follows:

Para 235 (iv) reads now as follows:

(iv) Accordingly, the Arbitral Tribunal concludes that the costs Claimant claims to be reimbursed are reasonable and well founded. Taking into account that the Arbitration Costs are separated USD 1,075,000 plus USD 10,000 refund must be deducted from the requested amount, Claimant's request is reduced to 11,769,804.25 USD.

Para 236 (1) reads now as follows:

2 Respondents have to pay to Claimant 65 percent of USD 11,769,804.25 USD, i.e. USD 7.650372.76.

Order N° 4 reads now as follows:

4 Respondents shall pay to Claimant 65 percent of Claimant's Costs of USD 11,769,804.25, i.e. USD 7,650,372.76.

Order N 5 reads now as follows:

5 Respondents shall pay 7 percent interest on the outstanding amount of USD 388,000,000.00 and of USD 698,750 and of USD 7,650,372.76 from the date of the Final Award until payment is effected.

III REQUEST 3 is rejected.

IV Claimant has to bear the additional advance on costs tor the correction procedure.

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