WJ Holding Limited
45 Digenis Akritas, Pamboridis Building, 1070
The Claimant was represented in the arbitration by:
William Z. Scheider
Schneider Law Group
150 Broadway, Suite 900
New York, NY 10038
United States of America
Avocat a la Cour
82 Boulevard Flandrin
Transdniestrian Moldavian Republic
President of the TMR
Minister of Economic Development
57 Sverdlova St
Email: email@example.com; firstname.lastname@example.org
Chairman of the Government of the TMR
45 25th October St
Email: email@example.com; firstname.lastname@example.org
The Respondent was not represented by external counsel.
Noah Rubins (President) Freshfields Bruckhaus Deringer LLP
2 rue Paul Cezanne
Sophie Nappert (co-arbitrator)
3 Verulam Buildings
London WC1R 5NT
United Kingdom email@example.com
Galina Zukova (co-arbitrator)
Belot Malan et Associes
60 avenue Raymond Poincare
2. Any application of a party for the correction of an error of the kind referred to in Article 35(1), or for the interpretation of an award, must be made to the Secretariat within 30 days of the receipt of the award by such party, in a number of copies as stated in Article 3(1). After transmittal of the application to the arbitral tribunal, the latter shall grant the other party a short time limit, normally not exceeding 30 days, from the receipt of the application by that party, to submit any comments thereon. The arbitral tribunal shall submit its decision on the application in draft form to the Court not later than 30 days following the expiration of the time limit for the receipt of any comments from the other party or within such other period as the Court may decide.
3. A decision to correct or to interpret the award shall take the form of an addendum and shall constitute part of the award. The provisions of Articles 31, 33 and 34 shall apply mutatis mutandis.
The total sum claimed by the Claimant of US$6,343,923 (subsequently corrected to US$6,342,923) is an aggregate sum of loans made by Claimant (US$3,881,842) (versus earlier submitted figure of US$3,981,466) and its sister companies Stubrick (US$2,061,081) (versus earlier submitted figure of US$1,408,683) and Grain-Oil (US$400,000). These figures are said to be drawn from the Taker Tilly assessments, but those sources in fact show that the Claimant loaned US$3,632,432, Stubrick loaned US$1,484,627, and Grain-Oil US$400,000. Since the Claimant has sought compensation based upon the amount loaned as a proxy for the amount spent, and given that on its case it funded the investments exclusively by means of these loans, it can only be awarded damages on the basis of the actual loan amounts. The Tribunal must therefore retain these lower figures, which total US$5,517,059, as the base for the Claimant’s compensation claim under this heading.
The total sum claimed by the Claimant of US$6,343,923 (subsequently corrected to US$6,342,923) is an aggregate sum of loans made by Claimant (US$3,881,842) (versus earlier submitted figure of US$3,981,466) and its sister companies Stubrick (US$2,061,081) (versus earlier submitted figure of US$1,408,683) and Grain-Oil (US$400,000). These figures are drawn from the Taker Tilly assessments. Those sources in fact show Taker Tilly’s conclusion based on "100% testing" that the Claimant, Stubrick, and Grain-Oil loaned the amounts claimed. Since the Claimant has sought compensation based upon the amount loaned as a proxy for the amount spent, and given that on its case it funded the investments exclusively by means of these loans, it can be awarded damages on the basis of the amounts claimed, which total US$6,342,923, as the base for the Claimant’s compensation claim under this heading.
... As noted, Raker Tilly verified based upon primary documentation the receipt by the Bender Plant from WJ Holding. Stubrick and Grain-Oil the sum of US$6,342,923 over the period 2012-2014....
Paragraph 242 of the Award is modified as follows:
The Tribunal has already determined in paragraph 232 above that the proper base for compensation under this heading is US$6,342,923, which is the sum of intra-company loans reflected in the evidentiary record. Based on the foregoing considerations, the Claimant is entitled to repayment of the full amount (US$6,342,923), less the sums identified by Baker Tilly as associated with "income tax" (US$269,014) and "rent and heating’ expenses (US$137,963). The total awarded under this head of damages is therefore US$6,025,946,.
In fact, the obligation was fulfilled only until the export duty was repealed by Decree No. 62 on 12 February 2013.
The Claimant has been awarded a total of US$9,844,630 (US$3,818,684 plus US$6,025,946). As noted, the Claimant seeks payment of the penalty only from 1 October 2014. Article 5.4 imposes an initial 9% penalty for the first thirty days (from 1 to 31 October 2014). This amount is US$886,016 (9,844,630 * 9%). The TRB refinancing rate on 1 November 2014 was 3.5%, and it remained at this level until 15 February 2017 — when it rose to 7% per annum. For the period when the applicable rate was 3.5%, the penalty accrued was US$790,132 (US$9,844,630 *3.5% / 365 = US$944 per day, * 837 days — US$790,132). For the remaining period until the date of this award (inclusive), the penalty at 7% is US$902,469 (US$9,844,630 * 7% / 365 — US$1,888 per day, *478 days — US$902,464). The total penalty for the period 1 October 2014 to 6 June 2018 is thus US$2,578,617.
(d) ORDERS the Respondent to pay to the Claimant
(i) US$1,050,000 as reimbursement of the purchase price for the shares in OJSC Bendery;
(ii) US$2,768,684 as compensation for investments made during the period 2003-2011;
(iii) US$6,025,946 as compensation for investment made during the period 2012-2014;and
(iv) US$2,578,617 corresponding to the contractual penalty applicable to items (i)-(iii) above.
(a) Paragraph 139 is modified in accordance with paragraph 11, above;
(b) Paragraphs 225 and 226 are modified in accordance with paragraph 12, above;
(c) Paragraph 232 is modified in accordance with paragraph 16, above;
(d) Paragraphs 240 and 242 are modified in accordance with paragraph 17, above;
(e) Paragraph 277 is modified in accordance with paragraph 19, above;
(f) Paragraph 280 is modified in accordance with paragraph 23, above; and
(g) Paragraph 295(d) is modified in accordance with paragraph 25, above.