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

Dissent From Final Award

1.
For the reasons set forth below, and because I believe that arbitrators have an ethical duty to the arbitral process as well as to the parties to decide disputes correctly based on the record of the evidence presented and the applicable New York law that the parties have chosen in their agreement to arbitrate (referred to in the Final Award as the Memorandum of Understanding dated as of December 9, 2011 (the "MOU"), I must respectfully dissent from the Tribunal’s Final Award.1
2.
Although both Claimants and Respondent submit that they are entitled to costs, it is clear that they cannot both be entitled to costs, but it is possible that neither of them are entitled to costs. For the reasons set forth below, I have concluded that Respondent is not entitled to costs and that Claimants are also not entitled to costs.

Reasons For Dissent From the Award of Costs to Respondent.

3.
The only issue before the Tribunal is to decide which of the parties, if any, is entitled to the costs incurred in the prosecution and defense of the substantive claims that Claimants asserted in their Request for Arbitration and subsequently withdrew after Respondent stated, for the first time on September 29, 2013, that the Tribunal did not have jurisdiction to decide those substantive claims because she was not participating in this arbitration as a representative of either (a) the Estate of the Decedent, (b) the Company or (c) the Decedent for dealing with matters relating to the Company. Instead, Ms. Emore stated on that September 29, 2013 that she was participating in this arbitration only in her personal capacity. Presumably relying on those September 2013 statements by Ms. Emore, the Tribunal decided that it had no jurisdiction to issue an enforceable award on the substantive claims against either the Decedent or the Company, who were the only two alleged respondent parties to the MOU. Thus, Claimants had no choice to withdraw their substantive claims, which they ultimately did.
4.
Paragraph 34 (b) of the Final Award accurately quotes the key preliminary issue included in the Terms of Reference on the question of whether the Tribunal had jurisdiction to render an award on the substantive issues that the parties have been continually arguing about, beginning with Respondent’s arguments in her Answer. Respondent accurately restated that key preliminary issue, which was Issue 31 in the Terms of Reference, as follows:

Is Respondent Ufuoma Emore presently a party in this arbitration in her capacity as agent or duly authorized representative of the Company, or Obrutse, or some other capacity?

5.
For some reason the Tribunal did not include in its recitation of the background facts in its Final Award the answer that Respondent gave on September 29, 2013 to the key jurisdictional question raised by Issue 31. Mr. Oneyibo answered that above quoted key jurisdictional question on behalf of Respondent as follows:

The only other capacity [i.e., other than as "agent or duly authorized representative of the Company, or Obrutse] in which Respondent can appear in this matter would be in her personal capacity. Apart from the fact that her appearance in such [personal] capacity would not be helpful to Claimant, the Respondent is not willing to personally carry the burden of a matter that is properly that of the estate.

6.
Although it is clear, both from the question posed by Issue 31 and from paragraphs 12, 13 & 15 of the Final Award, that Ms. Emore was named not only as executor of Obrutse’s estate, but she was also named as Obrutse’s Agent re the Company.
7.
Respondent then concluded her September 29 Submission on Issue 31 as follows:

For the reasons stated above, the Respondent respectfully submits that she is not the proper party to these proceedings and that her being brought in to defend this action by Claimant is misconceived. The Respondent requests that the Tribunal dismiss this action against her with costs in the sum of $200,000.00

8.
Ms. Emore is equitably estopped from being entitled to costs for two separate reasons. The first is based on Mr. Solovay’s claim that Respondent led Claimants down the proverbial "primrose path" by prosecuting the wrong party (Par. 48), which gave Claimants no choice but to withdraw from the arbitration because they admittedly had no claim against Ms. Emore in her personal capacity. The second reason that Respondent is equitably estopped from being entitled to costs is that Ms. Emore admitted at the hearing on costs held in New York City on September 10, 2014 that she deceived both Claimants and the Tribunal. Those admissions were totally inconsistent with her September 29, 2013 surprise revelation that that she had no authority to represent either the Company, or the Decedent for dealing with matters relating to the Company, and instead was participating in the arbitration only in her personal capacity. (See Par. 49 of the Final Award quoting from the record.) There is nothing in the record of these proceedings that is inconsistent with either of the above reasons for concluding that Respondent is equitably estopped from prevailing on her claim for costs.
9.
In paragraph 49 of its Final Award, the Tribunal quoted excerpts from Ms. Emore’s testimony in which she admitted that her September 2013 statements as to her lack of authority were untrue, quoting from Claimants’ Post-hearing Memorandum as follows:

Ms. Emore repeatedly confirmed in the course of the hearing that she was the Decedent's successor ("I am the one also in charge of Imoniyame"). She also conceded that as its "executive chair" no one would have prevented her from appearing on its behalf when the arbitration was first instituted because she "would have had that capacity."

10.
As the Tribunal noted in paragraph 64 of its Final Award (consisting of the following eight sentences);

[1] It may well be that that Ms. Emore was agent of, or in control of the Company as well as agent for the deceased for certain purposes, as a result of her involvement with the Company and her father’s business. [2] This was confirmed in cross examination when she admitted being "in charge" of Imoniyame and its "executive chair." [3] Based on discussions with Claimants or their counsel prior to the arbitration commencing, counsel for Claimants may well have honestly and correctly believed she was the Company’s agent, but this is beside the point. [4] The point is that this arbitration was commenced without naming Ms. Emore as agent for the Company, nor did she file an Answer in that capacity or ever hold out in this arbitration that she was responding as agent for the Company. [5] Based on the evidence set out in the emails and submissions referred to above, Respondent cannot be said to have misled or deceived either this tribunal or the Claimants. [6] The hearing on costs was not a hearing on the merits of either side’s position regarding the extent of Ms. Emore’s agency and labeling her evidence as untruthful or truthful misses the point. [7] It is clear from Claimants’ own correspondence, referred to in paragraphs 61 and 62 that Ms. Emore was named as Executor and as the agent for the deceased and was added as a party only because of Mr. Obrutse's death.[8] she was not named as agent for the Company.

11.
The first three of the eight sentences quoted above are clearly not beside the point. They are the point. It is the next five sentences that are beside the point. Although, with the exception of the fifth sentence in paragraph 64, many of the statements made in the four other additional sentences may be factually correct, they are irrelevant to the points made in the first three sentences, which are (1) that "Ms. Emore was agent of or in control of the Company as well as agent for the deceased...." (2) that "this was confirmed in cross examination when she admitted being "in charge" of Imoniyame and its "executive chair," and (3) that "counsel for Claimants may well have honestly and correctly believed she [Ms. Emore] was the Company's agent...." Although it is irrelevant, as noted in the fourth sentence, that Ms. Emore was not named in the Request for Arbitration as agent for the Company but was instead named as Decedent’s Agent re the Company (Pars. 12, 13 & 14), the Tribunal’s argument in the fifth sentence above that "Respondent cannot be said to have misled or deceived either this tribunal or the Claimants" is totally inconsistent with the fact that, as the Tribunal noted in its paragraph 65 (and as noted in my paragraph 15 below), Ms. Emore asserted in her Answer a plethora of substantive defenses to the merits of Claimants’ claims that misled Claimants to believe that she was participating in the arbitration in her capacity as Decedent’s agent re the Company even though, as she belatedly admitted in September 2013, she was participating in the arbitration only in her personal capacity.2
12.
There is no dispute that the Request for Arbitration did not name Ms. Emore "as agent for the Company." However, as noted in paragraphs 12, 13 & 15 of the Final Award, the Request for Arbitration named Ms. Emore in two separate capacities - i.e., (1) as Executor of the Estate of the Decedent, and (2) as "Decedent's Agent re Imoniyame Holdings Ltd." (Emphasis added.) Of course, Ms. Emore responded in her Answer only in the capacities in which she was sued, which included her capacity as Decedent’s Agent re the Company. As noted in paragraph 12 of the Tribunal’s Final Award, it is clear that the Company was referred to in the Request for Arbitration as the "Corporate Respondent." Irrespective of the merits of the claim that the Company was a respondent party to the MOU, it is clear that Claimants intended to name the Company as a respondent party because the Request for Arbitration clearly stated that Ms. Emore was being sued in her representative capacity as Decedent’s Agent re the Company and not in her individual or personal capacity. In any event, the substantive issue of whether the Company was or was not intended to be a party to the MOU is irrelevant to the issue of whether Respondent led Claimants down the "primrose path" by arguing the substantive issues in their Answer and continually thereafter until they reversed course on September 29, 2013.
13.
Although Claimants dropped their Claim against Ms. Emore in her capacity as Executor of the Estate of the Decedent after being advised that the Decedent died intestate and that Ms. Emore was not named as an administrator, it is clear that she responded in her Answer in her capacity as Decedent’s Agent re the Company. Because Ms. Emore was neither the Executor of the Decedent's Estate nor its administrator, all of the responses in her Answer could only be in her capacity as the Decedent's Agent relating to matters involving the Company.
14.
Based on the Tribunal’s recitation of the background facts relating to the "primrose path" issue in paragraphs 59-63, of its Final Award, the Tribunal’s analysis of those facts are clearly erroneous or totally irrelevant. For example, it is irrelevant that the Tribunal did not believe Claimants’ substantive claim that that the Company was intended to be a party to the MOU and that Mr. Solovay characterized such disbelief as "frivolous." The only relevant "primrose path" issue is whether Claimants could honestly believe, either correctly or incorrectly, that Respondent was acting either in her capacity as representative of (a) the Company, (b) the Decedent’s Agent re the Company or (c) the Decedent for matters relating to the Company, as opposed to participating in the arbitration solely in her personal capacity.
15.
In paragraph 65 of its Award, the Tribunal referred to the plethora of substantive defences to the merits of Claimants’ claims that were asserted in Respondent’s Answer under 8 solid cap listed headings, after which Respondent concluded her Answer by urging the Tribunal to dismiss Claimants’ claims based on the lack of merit of those claims, not based on the Tribunal's lack of jurisdiction to decide those merits. However, Paragraph 65 of the Tribunal’s Award did not refer to the first solid cap heading in Respondent’s Answer, entitled PRELIMINARIES, which appeared immediately above those 8 solid cap headings. Under that heading of PRELIMINARIES, Respondent explained that, because the Decedent died intestate, Ms. Emore was not his Executor and, as such - i.e. in her capacity as Executor, cannot be a proper party to these proceedings. Although Ms. Emore argued in her Answer and continually thereafter that she was not the agent for the Company, noting that she was named instead as Decedent’s Agent re the Company, not the Company’s Agent, she claimed in her Answer that, as a matter of law, her authorization as Decedent’s Agent terminated upon his death, but that substantive claim, which Claimants disputed, was never presented to or decided by the Tribunal.
16.
The Tribunal’s statement in the first sentence of paragraph 66 of its Award that the Respondent’s Answer makes no references to defenses of the Company is clearly erroneous and contrary to the facts noted in paragraph 65 of the Tribunal’s Final Award and my paragraph 15 above. Although the Tribunal’s statement in the second sentence of its paragraph 66 is correct because Ms. Emore did not hold out that she was responding as agent for the Company, she nevertheless was responding as Decedent’s Agent re the Company and putting forward defenses in her representative capacity rather than her individual or personal capacity. Because Ms. Emore had no authority to represent the Estate (being neither its Executor nor its administrator), her argument that the Company was not intended to be a party to the MOU, which is a substantive issue, could only be asserted on behalf of the Company, either in her capacity as Decedent’s Agent re the Company, or in her capacity as Decedent’s successor "in charge of Imoniyame" or as its "executive chair," as noted in Paragraph 49 of the Tribunal's final Award. Thus, the tribunal's conclusion to the effectthat Claimants were not enticed to continue in the arbitration until Ms. Emore disclosed,for the first time in September 2013, that she was not appearing in the arbitration as Decedent's Agent re the Company, or in any other capacity other than in her personal capacity, is contrary to the evidence and clearly erroneous.
17.
As the Tribunal noted in its paragraph 64 quoted above, Claimants named Ms. Emore as the Decedent's Agent for matters relating to the Company when they intended to name her as the Company's Agent. However, that mistake has no relevance on the question of whether Respondent is entitled to costs. What is relevant is that both Claimants and the Tribunal believed that Ms. Emore's September 2013 statements were true at the time they were made, and they did not learn that they were untrue until the cost hearing on September 10, 2014, almost 9 months after Claimants had withdrawn from the arbitration.
18.
Based on the undisputed facts and the applicable law, it is clear that the only reason that Claimants withdrew their substantive claims after September 29, 2013 was that, until that date, they did not know or have reason to believe (1) that the Tribunal did not have jurisdiction to make an award against either the Estate of the Decedent or the Company, which were the only two alleged respondent parties to the MOU, and (2) that Ms. Emore was not participating in this arbitration as a representative of either (a) the Estate of the Decedent, (b) the Company or (c) the Decedent for dealing with matters relating to the Company, and that Ms. Emore was instead participating in this arbitration only in her personal capacity.
19.
As the Tribunal acknowledged in paragraph 64 of its Final Award, the Tribunal had no basis to dispute that Claimants’ counsel honestly believed, during the period beginning with the January 9, 2013 date of Respondent’s Answer and ending on the September 29, 2013 date of Respondent’s Submission on the preliminary jurisdictional issues raised in the Terms of Reference, that Respondent had Standing and authority to assert substantivedefenses to the merits of Claimants’ claims as the agent or representative of either (1) the Company or (2) the Decedent for dealing with matters relating to the Company. Although Ms. Emore argued in her Answer, and continually thereafter until September 2013, that she was not the agent for the Company, noting that she was named in the Request for Arbitration as the Decedent's Agent, not as the Company's Agent, she merely claimed in her Answer that, as a matter of law, her authority to act as Decedent’s Agent re the Company terminated upon the Decedent’s death, but that legal claim was disputed by Claimants and thus raised a substantive issue, not a preliminary issue that related to jurisdiction.
20.
There is nothing in Respondent’s Answer that put Claimants on notice that she did not have the authority to represent either (1) the Company or (2) the Decedent in matters relating to the Company. The Tribunal admitted Mt Respondent’s Answer merely stated that, because the Decedent died intestate, Respondent was not his Executor and, "as such," cannot be a proper party to the proceedings. Although Claimants acknowledged that Ms. Emore was not a proper party in her capacity as Executor of Decedent’s Estate, Claimants disputed her claim that her authority to represent the Decedent in matters relating to the Company ended with the Decedent’s death by arguing that Ms. Emore’s appointment as Decedent’s Agent survived his death because it was coupled with an interest. However, Respondent’s claim that her authority to act for the Decedent re the Company terminated with his death was never considered or decided by the Tribunal, and, in any event, that legal substantive issue was not sufficient to put Claimants on notice (1) that Respondent had no standing or authority to act for either the Company or the Decedent in matters relating to the Company or (2) that there was a jurisdictional issue as to whether the Tribunal could make an enforceable award against the Company.
21.
Respondent’s Answer did not disclose that Claimants’ counsel’s honest belief that Respondent had standing and authority to assert substantive defenses to the merits of Claimants’ claims was a mistaken belief and there is nothing in the record that put Claimants on notice that their honest belief was mistaken prior to Respondent’s September 2013 revelation that the Tribunal had no jurisdiction to issue an award that could be binding on and enforceable against either (1) the Company or (2) the Decedent re the Company.
22.
Because Respondent deceived both Claimants and the Tribunal as noted above, Respondent is equitably estopped from prevailing on her claim for costs because, by continuing to assert substantive defenses to the merits of Claimants’ claims beginning in her January 9, 2013 Answer, Respondent induced Claimants to proceed with the arbitration by responding to her defenses on the merits until she stated, for the first time in her September 2013 Submission, that "she cannot be sued or defend this matter in the capacities in which she has been sued" (emphasis added). If Respondent had disclosed in her Answer that the Tribunal had no jurisdiction over either (1) the Company, or (2) the Decedent re the Company, and that she had no standing or authority to assert those substantive defenses onthe merits, Claimants would undoubtedly have immediately withdrawn their claims in January 2013, before they had invested substantial time and money in pursuing an arbitration award that Claimants could not have enforced against either of the two alleged respondent parties to the MOU.
23.
Notwithstanding the fact that Respondent vigorously defended this matter by asserting substantive defenses to the merits of the claims in her Answer, she did not reveal that she had no standing to "defend this matter," either on behalf of (1) the Company or (2) the Decedent re the Company, until her September 2013 Submission on Issue 31, in which she concluded as follows:

For the reasons stated above, the Respondent respectfully submits that she is not the proper party to these proceedings and that her being brought in to defend this action by Claimant is misconceived. The Respondent requests that the Tribunal dismiss this action against her with costs in the sum of $200,000.00.

24.
Although Respondent was under no obligation to defend the claims on the merits until the Terms of Reference were finalized, if she was in fact neither the agent for the Company nor the agent for the Decedent in matters relating to the Company, as she stated in her September 2013 Submission, she should have made her motion to dismiss on

Jurisdictional grounds in her Answer and refused to pay any portion of the $180,000advance fixed by the ICC. Instead, she continued to reinforce Claimants’ belief that she

had standing and authority to assert substantive defenses to the merits of the claims by continuing to do so until she stated otherwise in September 2013.

25.
Of course Ms. Emore would have Standing to raise substantive defenses to the merits of the claims if she was participating in the arbitration either as agent for the Company, or as agent for the Deceased re the Company, but that would not be the case if she participated in the arbitration solely in her personal capacity. Unfortunately for Claimants, she did not disclose that she was participating only in her personal capacity until September 29, 2013, which was the first time that she made a motion to dismiss on jurisdictional grounds.
26.
There were numerous prior drafts of the Tribunal’s award on costs as well as prior drafts of my dissents to the Tribunal’s prior award on costs. Paragraph 18 of the Tribunal’s corrent Final Award summarized five statements that Respondent stated in her Answer, but the Tribunal did not include the following short summary of the contents of Respondent’s Answer that it recited in paragraph 16 of its December 2014 draft of its Award on Costs:

Respondent raised certain jurisdictional issues in her Answer. In particular she alleged that Mr. Obrutse had died intestate and she was not his Executor and as such [i.e., as his Executor] not a proper party to the proceedings. Further, she alleged that in law, any agency ended upon Mr. Obrutse’s death. Pursuant to Article 6(3) of the ICC Rules, these issues were not referred to the Court but left to thé Tribunal to decide. Substantive defences, including a claim that the MOU was a fabrication and not all pages had been signed or agreed to by Mr. Obrutse were also pleaded. (Emphasis added.)

27.
The second sentence of the above quoted paragraph 16 from the Tribunal’s December 2014 Draft makes it clear that what Respondent pointed out in her Answer was that she was not a proper party to these proceedings, but only in her capacity as Executor. However, in paragraph 53 of its Final Award, the Tribunal states that Respondent made it clear that she lacked the capacity to be sued in this matter, stating as follows:

The Respondent points out that in her Answer she made the position of her lack of legal capacity very clear, but the Claimants chose to close their eyes to the facts and to persist in pursuing their claims against her even in the face of very clear evidence that she lacks legal capacity to be sued in this matter.

28.
The reality is that Respondent’s Answer did not point out that she lacked standing to be sued in her capacity as Decedent’s Agent re the Company. Respondent’s Answer merely stated that it was "wrong to refer to the Respondent as Executor of the estate of the deceased," and thus she was not a proper party in such capacity - i.e. in her capacity as Executor. Although Respondent explained in her answer that "the description of respondent as agent for the deceased is also wrong in law," the only motion that Respondent made in her Answer was "to strike out the name of the Respondent as being wrongly joined in this matter."
29.
In paragraph 67 of the March 12 penultimate version of its Final Award, the Tribunal states that "the issue of Ms. Emore being agent for the Company was only raised after it was pointed out that the Company was not named as a Respondent to the arbitration in either the section headed "The Parties And Their Representatives" in the Request for Arbitration, nor in the caption assigned by the Secretariat as detailed above." However, in the current version of the Final Award, the Tribunal added the following sentence to its March 12 paragraph 67:

Claimants chose to not deal with the fact that the Company was not properly named in the proceedings and attempted to get around this by arguing Ms. Emore was named as its agent.

Thus, it appears that the Tribunal is now suggesting that Claimants should not have named Ms. Emore as a Respondent in this arbitration in any capacity and that they should have named the Company, as an entity, as the only Respondent in their Request for Arbitration instead of naming Ms. Emore as the person who the Decedent authorized to represent the Company as his agent for matters relating to the Company. In addition to the absurdity of this new argument, it is clear from the record that the MOU states the following on the first page thereof:

NOW, THEREFORE, the parties hereby agree as follows:

(A) The Parties recognize that Imoniyame Holdings, Ltd., 11 Adelabu Street, Surulere. Lagos, Nigeria, Attn: Ufuoma O. Emore, will act as agent for [Decedent] Stafford.

Thus, Claimants had no choice but (1) to name Ms. Emore as a Respondent in her capacity as the Agent for the Decedent re the Company instead of naming the Company, as an entity, as the only Respondent, and (2) to serve Ms. Emore with a copy of the Request for Arbitration at the above address, the fact of such service is not in dispute.

30.
Notwithstanding the Tribunal’s argument to the contrary in paragraph 53 of its Final Award, the statements in Respondent’s Answer were insufficient to put Claimants on notice that Ms. Emore was appearing in the arbitration only in her personal capacity and that she had no standing or authority to act for either the Company or the Decedent with respect to the Company. Instead, the Answer proceeded for almost 5 pages after the "Preliminaries" to assert defenses that only a person authorized to represent either the Company, or the Decedent with respect to the Company, had standing to assert.
31.
Claimants summarized their argument in support of their claim for costs in Exhibit 1 to their Post Hearing Memorandum, which is a copy of Claimants’ June 20, 2014 original submission in support of their claim for costs. The Conclusion to that submission states (as noted in the Tribunal’s Par. 48):

If Respondent had disclosed in her Answer to the Request for Arbitration that, following the death of Mr. Obrutse, she had no authority to act for or represent the Company, Claimants would have withdrawn their claims in this arbitration and avoided the need to pay the last $40,000 of Claimants' share of the original $180,000 fee deposit. Instead, Respondent continued to lead Claimants down the proverbial "primrose path," causing them to spend up to $412,250 in prosecuting their arbitration claims against the wrong party. Thus, Respondent should be ordered to pay to Claimants the costs they incurred including legal fees and their $90,000 deposit.

32.
It is clear from the record that, at all times from and after Respondent’s Answer of January 9, 2013 and until September 29, 2013, when Respondent delivered her Submission on the preliminary issues set forth in the Terms of Reference, Claimants did not realize that Ms. Emore was not authorized to represent the Company, or the Decedent re the Company, but was instead appearing in the arbitration only in her personal capacity. Because Respondent reinforced Claimants’ justified belief that they were arbitrating with a person who was authorized to act for the Company, or for the Decedent with respect to the Company, until September 2013, and for the added reason that Respondent deceived both Claimants and the Tribunal (as the Tribunal noted in paragraph 49 of its Final Award), Respondent should be equitably estopped from being entitled to recover costs from Claimants.
33.
The doctrine of equitable estoppel under New York law requires, with respect to the party estopped: (1) conduct which amounts to a false representation or concealment of material facts; (2) intention or realization that such conduct will be acted upon by the other party; and (3) knowledge of the real facts. The party asserting estoppel must show with respect to himself: (1) lack of knowledge of the true facts; (2) reliance upon the conduct of the party estopped; and (3) a prejudicial change in his position...." Airco Alloys Div., Airco Inc. v. Niagara Mohawk Power Corp., 76 A.D.2d 681 81-82, 430 N.Y.S.2d 179 (1980). See State of New York Higher Educ. Servs. Corp. v. Zamore, 59 N.Y.2d 933, 934-35, 466 N.Y.S.2d 297, 453 N.E.2d 526 (1983) (mem.); Pagel, Horton & Co. v. Harmon Paper Co., 236 A.D. 47, 54, 258 N.Y.S. 168 (1932); 31 C.J.S. Estoppel Sec. 59, at 367.
34.
It is clear in this case that: (1) Respondent concealed the material fact that the Tribunal had no jurisdiction to make an enforceable award in favor of Claimants, even if they could convince the Tribunal that they had meritorious claims against the Company or the Decedent, because she did not disclose that material fact of lack of jurisdiction in her Answer; (2) In reliance on their belief that the Tribunal had jurisdiction to decide Claimants’ substantive claims, Claimants participated in this arbitration by opposing and arguing against Respondent’s defenses to the merits of Claimants’ substantive claims until such time that Respondent disclosed that she had no standing or authority to assert those defenses on behalf of either the Company or the Decedent, which were the only two alleged respondent parties to the MOU; and (3) claimants were prejudiced by relying on Respondent’s failure to disclose the Tribunal’s lack of jurisdiction in her Answer causing them to incur legal fees and expenses subsequent to the January 9, 2013 date of Respondent’s Answer.
35.
By reason of the foregoing, and also because respondent deceived both Claimants and the Tribunal as noted above, Respondent is equitably estopped from prevailing on her claim for costs because she has "unclean hands" by leading Claimants down the proverbial "primrose path," causing them to spend up to $412,250 in prosecuting their arbitration claims against the wrong party.

Reason For My Concurrence With the Dismissal of Claimants’ Costs Claim

36.
Although I concur with the Tribunal’s dismissal of Claimants’ claim for costs, at least those costs incurred subsequent to September 29, 2013, I cannot concur with the reason that the Tribunal gave for its dismissal of Claimants’ claim for costs as stated in the first sentence of paragraph 68 if of its Final Award. To say that it cannot agree that Claimants were surprised by Respondent’s September 2013 submission is totally at odds with what the Tribunal conceded in the third sentence of paragraph 64 of its Final Award.
37.
The only reason that I concur with the dismissal of Claimants’ claim for costs is because Claimants waived such cost claim by failing to withdraw from the arbitration promptly after they first learned on September 29, 2013 that they were enticed by Respondent to remain in the arbitration until that date. However, if Claimants knew at the outset of the arbitration that the Tribunal had no jurisdiction to make an award against either of the two alleged parties to the MOU, they undoubtedly would have withdrawn from the arbitration at that time, before they had invested over $400,000 and spent 8 months after the January 2013 date of the Answer arguing with Respondent about the merits of their claims to a Tribunal that lacked jurisdiction to issue a binding and enforceable award against the only two alleged respondent parties to the MOU.
38.
The fact that Claimants continued in the arbitration after September 2013 in the hope they could convince the Tribunal to hold a hearing on the forgery issue is irrelevant in the context of Respondent’s claim for costs. That is because, after already spending over $400,000 in legal fees through September 2013, Claimants were willing to incur a small additional expense to obtain a confirmation from an independent handwriting expert and a finding by this Tribunal that Decedent’s signature on the MOU was not a forgery, a finding that Claimants argued could lead to a settlement with the representatives of the Decedent and the Company once Claimants could get jurisdiction over those representatives in a subsequent arbitration. However, after the Tribunal correctly ruled that it would not make a non-binding decision on the substantive forgery issue after Respondent unequivocally stated that she was not authorized to represent either (1) the Company or (2) the Decedent re the Company, Claimants had no alternative to withdraw from the arbitration, which they ultimately did.

Reason For My Dissent Re the Allocation of the Costs of the Arbitration.

39.
Because the amount of damages sought by Claimants in their Request for Arbitration was not a limited amount, the ICC fixed the advance on costs at $180,000, one half of which is required by the ICC Rules to be paid by each party. (Par.78)
40.
Although Claimants paid the ICC their $90,000 share of the required advance, Respondent failed to pay any portion of its share of the $180,000 required advance, which may have been a breach of the arbitration agreement and thus an additional reason for denying Respondent’s claim for costs. (See Pars. 84, 85 & 86 of the Final Award.)

Conclusion

41.
Because, based on the applicable law and undisputed facts in this case, none of the parties should prevail on their respective claims for the costs they incurred in prosecuting or defending this arbitration, Respondent should be ordered to reimburse Claimants for one-half of the $90,000 that they paid to the ICC for its administrative fees and the fees and expenses of the arbitrators in connection with this arbitration in which the parties asserted claims for costs against each other.
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