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Avocats, autres représentants, expert(s), secrétaire du tribunal

Final Award

I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration agreements entered into between the above parties and dated May 17, 2009 and July 31, 2011, and having been duly sworn, and having duly heard the proofs and allegations of the parties, do hereby AWARD as follows; all monetary figures herein are in U.S. dollars, unless otherwise stated:

SUMMARY OF THE PROCEEDINGS

1.
This arbitration was commenced by Claimant CE International Resources Holdings LLC ("CEIR") filing a Notice of Arbitration on July 2, 2012. The claim was initially brought against only Respondents S.A. Minerals Ltd. Partnership ("SAM") and Tantalum Technology, Inc. ("TTI").
2.
The claims herein arise out of (i) a contract of purchase and sale of synthetic concentrates ("syncons") containing Ta2O5 (tantalum pentoxide), made between CEIR and SAM, dated February 28, 2008, amended as of May 17, 2009 ("the Amended Purchase Contract")1; and (ii) a contract for the purchase and sale of syncons containing Ta2O5 (tantalum pentoxide), made between CEIR and TTI, dated July 31, 2011 ("the 2011 TTI Sale Contract").
3.
CEIR's Statement of Claim claims against SAM for breach of the Amended Purchase Contract and tortious procurement of TTI's breach of the 2011 TTI Sale Contract, and seeks the following relief:

(i) an order for specific performance, requiring SAM to deliver the goods to CEIR in Singapore, as required by the Amended Purchase Contract;

(ii) consequential damages including lost profits;

(iii) directions for the immediate inspection and verification of the goods by a recognized independent third party assayer of CEIR's choosing;

(iv) in the alternative to specific performance, damages for breach of contract, consisting of the purchase price paid of $4,376,561.74, plus the loss of profit that would have been made on the resale, in the amount of at least $3,678,438.26;

(v) pre-award interest on any award of damages;

(vi) post-award interest;

(vii) costs of arbitration, including arbitrator fees and counsel fees.

4.
CEIR's Statement of Claim claims against TTI for breach of the 2011 TTI Sales Contract and tortious procurement of SAM's breach of the Amended Purchase Contract, and seeks the following relief:

(i) damages in the amount of at least $8,055,000.00, or alternatively damages in the sum of $4,376,561.74, plus consequential damages including lost profits;

(ii) pre-award interest;

(iii) post-award interest;

(iv) costs of arbitration, including arbitrator fees and counsel fees.

5.
In July, 2012, CEIR learned that SAM had been dissolved and/or liquidated in around August 2011. Thereupon, the Statement of Claim was amended, on July 27, 2012, to add Yeap Soon Sit ("YSS")2 as a Respondent ("the Amended Statement of Claim"). YSS was added as a Respondent on the basis that he is a successor to SAM; that each of SAM and TTI are the alter egos of YSS; and that YSS personally, as managing partner of SAM and TTI, committed wrongful and tortious acts in relation to the subject matter of the respective contracts. CEIR makes the same claims against YSS as it makes against SAM and TTI. In addition, it claims against YSS in fraud and conversion. CEIR seeks against YSS substantially the same relief as is sought against SAM and TTI.
6.
On July 13, 2012, CEIR applied for interim relief from an Emergency Arbitrator.
7.
The Emergency Arbitrator was appointed on July 17, 2012. The interim relief applied for consisted of an award ordering Respondents to:

(i) permit and facilitate immediate inspection and verification of the goods purchased by CEIR from SAM;

(ii) certify in writing to the Emergency Arbitrator and to CEIR, among other matters, that the goods were held in a Thailand warehouse for the account of CEIR.

8.
The Statement of Claim and the application for emergency interim relief, together with related documents, were personally delivered to an address in Bangkok, Thailand, which is apparently the address of SAM and YSS, on July 20, 20123. The Amended Statement of Claim and related documents were couriered to the same address on July 30, 20124.
9.
On August 7, 2012, the law firm of Kamthorn Surachet & Somsak Ltd. appeared in the proceedings for emergency interim relief, on behalf of Respondents. On that date, it sent a letter to the Emergency Arbitrator objecting to the emergency relief sought, and to the addition of YSS as a Respondent. This was followed by a further letter from the same law firm, dated August 9, 2012, in similar vein.
10.
On August 9, 2012, the Emergency Arbitrator issued his Interim Award5. Among other matters, he found that, for the purpose of the Interim Award, YSS was a party to the arbitration agreement between CEIR and SAM. The operative part of the Interim Award is directed towards SAM and YSS, and references to "Respondents" in this paragraph are to be deemed to be references to those Respondents only. The Interim Award in essence provided as follows:

(i) the Respondents were to state in writing to CEIR, by 18:00 ICT on August 13, 2012, whether or not they had custody of, or power over, the goods sold pursuant to the Amended Purchase Contract;

(ii) the Respondents were to state in writing to CEIR, by the same deadline, the current location of the goods;

(iii) if the Respondents did not have custody of, or power over, the goods, the Respondents were to state in writing to CEIR, by the same deadline, to whom, when, and on what basis they passed custody of, or power over, the same;

(iv) if the Respondents had custody of, or power over, the goods, they were to facilitate immediate inspection and testing of the goods;

(v) if the Respondents had custody of, or power over, the goods, they were to state in writing to CEIR, by the same deadline, whether any person other than CEIR held any interest in the goods;

(vi) the Respondents were to pay the costs of the emergency proceedings.

11.
The Respondents did not comply with the Emergency Arbitrator's Interim Award6.
12.
On August 29, 2012, I was appointed Sole Arbitrator herein.
13.
On September 14, 2012, the Supreme Court of British Columbia, Canada, issued a freezing order in respect of the assets of YSS, up to a value of US$10,000,000.00.
14.
On September 18, 2012, the High Court of Singapore issued a freezing order in respect of the assets of YSS, up to a value of US$7,000,000.00.
15.
On September 18, 2012, CEIR applied to me for interim measures.
16.
On September 21, 2012, I held a preliminary hearing with the parties. Dr. Rungsaeng Kittayapong of Kamthorn Surachet and Somsak Ltd. represented the Respondents. As a result thereof, I issued my Order No. 1. This provided, among other matters, a briefing schedule for the application for interim relief, and a schedule for discovery and other matters leading up to the evidentiary hearing. In the course of the preliminary hearing, it was proposed that the evidentiary hearing be held in December, 2012. Dr. Kittayapong stated that he was not available at all in December, for professional reasons. However, when I suggested that the hearings could be held on weekends, if necessary, he indicated that he might, after all, be available during that month. Accordingly, paragraph 17 of my original Order No. 1 (before it was amended due to the intervention of new counsel for YSS and TTI: see the following paragraph), providing for a procedure for determining the dates for the evidentiary hearing, included Saturdays and Sundays as an option.
17.
On October 2, 2012, Shearman & Sterling LLP ("Shearman & Sterling") notified CEIR and me that they expected to represent YSS and one or more of the other Respondents herein. On October 3 and 5, 2012, Shearman & Sterling confirmed that it represented YSS and TTI, respectively. Specifically with respect to YSS, Mr. Greenblatt for Shearman & Sterling stated, in his email dated October 3, 2012:

"I can now confirm that Shearman & Sterling will represent Respondent S.S. Yeap in this arbitration.... Dr. Kittayapong, who I have discussed these issues with and copy here, will continue to represent Respondents S.A. Yeap and TTI, with Shearman & Sterling acting as lead counsel".

18.
On October 12, 2012, YSS and TTI filed their Opposition to CEIR's Request for Interim Measures, and filed a Statement of Defense. They also made a cross-application to set aside the Interim Award of the Emergency Arbitrator.
19.
On October 19, 2012, CEIR filed a Reply Submission to YSS and TTI's opposition to CEIR's application for interim relief.
20.
On October 26, 2012, I issued my Interim Award, in which I made several findings on a provisional basis. I found that I had jurisdiction over YSS with respect to the 2011 TTI Sale Contract, on the basis that YSS was acting as the alter ego of TTI, and on the basis of estoppel. I also found that I had jurisdiction over YSS with respect to the Amended Purchase Contract, on the basis of estoppel. It should be noted that I stated, in paragraph 25 of my Interim Award, that "there appears to be no dispute that I have jurisdiction over SAM and TTI". This statement was not disputed at the time, or subsequently, by Shearman & Sterling on behalf of TTI. Indeed, there was no manifest dispute as to my jurisdiction over TTI until the appearance of Moses & Singer LLP, as described below.
21.
My Interim Award ordered the Respondents to provide security for satisfaction of the amount in dispute herein, together with interest and costs, in the amount of $10,000,000.00 in total. I also enjoined the Respondents from making any transfer of assets, wherever located, up to the amount of $10,000,000.00, until and unless security of $10,000,000.00 were provided. I included certain provisos with respect to living and business expenses, legal fees, etc.
22.
On November 8, 2012, CEIR applied to join as a Respondent the YSS Trust, an irrevocable trust formed under the laws of the Cayman Islands, of which YSS is the settlor and a beneficiary. The parties submitted written presentations to me on this issue. On November 29, 2012, by Order No. 4, I denied the application.
23.
On November 19, 2012, the law firm of Moses & Singer LLP ("Moses & Singer") informed me that it had been retained to represent TTI. On the same day, Mr. Greenblatt for Shearman & Sterling stated in an e-mail: "Shearman & Sterling does continue to represent Mr. Yeap in the arbitration".
24.
On November 21, 2012, TTI submitted, among its witness statements, a statement by Stuart Bray which purported to deny the authority of YSS to execute agreements on behalf of TTI, and specifically the 2011 TTI Sale Contract. In consequence, and in accordance with my requirement, TTI amended its Statement of Defense to deny liability under the 2011 TTI Sale Contract, on the basis of YSS' lack of authority to bind TTI.
25.
On November 28, 2012, counsel for CEIR informed me as follows: "Counsel for Respondent Yeap Soon Sit ("YSS") informed me yesterday7 that YSS will not attend the hearing in person nor does he intend to participate in the hearing by video conference". This was not disputed at any time by counsel for YSS. In consequence, on November 30, 2012, and pursuant to an application by counsel for CEIR, I ordered that YSS should appear as a witness at the evidentiary hearing for the purpose of CEIR's case in chief, and to be cross-examined in regard to his witness statements.
26.
December 12-14, 2012 had been fixed as the dates for the evidentiary hearing in New York, by agreement between counsel and me on October 3, 2012. However, on December 5, 2012, counsel for CEIR requested that the evidentiary hearing be postponed to January 2013, on the basis that documents received that day required investigation, in particular as to whether there would be a conflict of interest in his continuing to represent both CEIR (and its principal, Mr. Henderson) and CEIR's investors; and that investigation could not reasonably be completed in time for the evidentiary hearing8. Counsel for TTI did not oppose the postponement of the evidentiary hearing. Counsel for YSS did not oppose the postponement, but requested that the rescheduled hearing take place in February, "due to the full schedules of Mr. Yeap's witnesses and counsel in January"9. CEIR strongly opposed rescheduling the hearing to a date later than January10. TTI indicated the dates of January 14-18, 2013 as its first preference11. CEIR indicated a preference for the dates of January 14-1612. Counsel for YSS continued to object to the dates in January, on the basis of the unavailability during that entire month of YSS' Thai counsel, Dr. Kittayapong13. No objection was made that Shearman & Sterling was unavailable, nor could any objection be made on the basis of the unavailability of YSS, who had already announced that he would not attend the hearing in person or by videoconference14. The purported unavailability of YSS' expert witness on Thai law, Dr. Ratanapijit, was not relevant, since his presence was not required15. Accordingly, and given that the interests of YSS at the hearing would be more than adequately represented by Shearman & Sterling, I fixed January 14-16, 2013 as the dates for the adjourned evidentiary hearing16. Shearman & Sterling, on behalf of YSS, strenuously objected to this and reserved all rights and objections arising from the scheduling of the hearing on those dates17.
27.
On January 7, 2013, Shearman & Sterling, on behalf of YSS, sent an e-mail to counsel for CEIR and TTI (copied to me next day, January 8), reiterating its objections to the January hearing dates. The objection is based solely on the unavailability of Dr. Kittayapong. The e-mail states in part:

"Having been denied the right to have his Thai counsel present at the hearing, Mr. Yeap has determined that he cannot participate in those proceedings. As such, we will not be attending the hearings on Mr. Yeap's behalf, which in turn, means that Mr. Yeap will not be calling or cross-examining witnesses as contemplated in paragraph 9 of Order No. 5.

Mr. Yeap expressly reserves all objections to any award issued as a result of the arbitration hearings scheduled for January 14-16th. Mr. Yeap continues to maintain his overall objections to the jurisdiction and authority of the arbitrator".

28.
In response to Shearman & Sterling's e-mail dated January 7, I put YSS on notice that, should neither he nor his counsel appear at the evidentiary hearing, I would apply Articles 23(2) and 23(3) of the International Arbitration Rules of the International Centre for Dispute Resolution ("the Rules") (which Articles permit the arbitration to proceed and evidence to be taken in default of a party's appearance), without prejudice to the drawing of any appropriate adverse inferences18. Nevertheless, all communications between me and the parties, at all times, were copied to Shearman & Sterling and to Dr. Kittayapong, up to and including the closing of the hearings; and, at my request, transcripts of the evidentiary hearings were sent to Shearman & Sterling,19 and Shearman & Sterling was afforded ample opportunity to comment on the same. Shearman & Sterling did not make any comment on the transcripts, or participate in the proceedings, after January 8, 2013.
29.
The evidentiary hearing was held in New York on January 14-16, 2013.
30.
A telephone conference call was held with counsel for the parties (other than counsel for YSS) on January 22, 2013, to determine further steps to be taken in the arbitration. In consequence, I issued my Order No. 6, providing principally for a schedule for the filing of post-hearing memoranda.
31.
I also resolved certain issues with respect to the disbursement of TTI's legal fees, pursuant to a proviso in my Interim Award.
32.
Subsequent to the evidentiary hearing, upon the parties' application, certain additional documents were entered into evidence20. These included certain documents relating to the YSS Trust, which documents were authorized to be used in this arbitration, by the Cayman Islands court, on February 14, 201321.
33.
Post-hearing memoranda were filed. I also authorized supplementary memoranda to be filed with respect to the documents referred to in paragraph 32 hereof.
34.
On April 4, 2013, pursuant to Article 24(1) of the Rules, I declared the hearings closed.

THE ARBITRATION CLAUSES AND THE APPLICABLE RULES

35.
The arbitration clause in the Amended Purchase Contract appears as clause 10 of CEIR's "General Terms and Conditions of Purchase", which are expressly incorporated into said Amended Purchase Contract. The arbitration clause reads as follows:

"In the event that any dispute arises between Purchaser and Seller from, out of or in connection with this Contract which they are unable to resolve by agreement, Purchaser and Seller agree to submit such controversy for arbitration before the American Arbitration Association in New York, NY USA. The arbitration proceedings shall be conducted before a panel of three arbitrators and shall be governed by the rules and procedures of the American Arbitration Association for commercial arbitration. The language to be used in the arbitration proceedings shall be English and the award shall be in writing and shall state the reasons upon which it is based. Each of Seller and Purchaser agrees that such arbitration before the American Arbitration Association in New York, NY USA shall be the sole forum for settlement of disputes between them and that the final award or decision arising out of such arbitration proceeding shall be binding upon both Purchaser and Seller and that judgment upon such an award may be entered in any court having jurisdiction".

36.
The arbitration clause in the 2011 TTI Sale Contract appears as clause 8 of CEIR's "General Terms and Conditions of Sale", which are expressly incorporated into said 2011 TTI Sale Contract. This clause is identical to clause 10 of CEIR's "General Terms and Conditions of Purchase", except that the word "Purchaser" is replaced by "Buyer", and the words "or, if appropriate, international commercial arbitration" are added after "for commercial arbitration" at the end of the second sentence.
37.
Despite the fact that the arbitration clauses call for a three arbitrator panel, the parties agreed that this case shall be heard by a sole arbitrator. I was so informed at the preliminary hearing on September 21, 2012, and this agreement is expressed in paragraph 1 of my Order No. 1.
38.
Despite the fact that clause 10 of CEIR's "General Terms and Conditions of Purchase" refers to the rules of the American Arbitration Association for commercial arbitration (although the "General Terms and Conditions of Sale" add a reference to the rules for international commercial arbitration), the parties have agreed that this case shall be heard according to the Rules. I was so informed at the preliminary hearing on September 21, 2012, and this agreement is expressed in paragraph 2 of my Order No. 1.
39.
I note that paragraphs 7 and 9 of Respondents' original Statement of Defense, and paragraphs 8 and 10 of TTl's Amended Statement of Defense, filed on December 4, 2012, state that CEIR "alleges" that the respective agreements include the arbitration clauses referred to in paragraphs 35 and 36 hereof, thus appearing to cast doubt on whether the agreements do in fact incorporate the arbitration clauses; but Respondents at no stage produced any evidence, and stated no basis, on which it could be argued that the respective arbitration clauses are not so incorporated. Therefore, pursuant to Rule 15 of the Rules, I find that the respective arbitration clauses are incorporated into the Amended Purchase Contract and the 2011 TTI Sale Contract.

APPLICABLE LAW

40.
Pursuant to the applicable arbitration clauses, Article 28(1) of the Rules, and paragraph 4 of my Order No. 1, the substantive law of the State of New York applies to the Agreements.

MATTERS RELEVANT TO MY FINDINGS OF FACT

41.
As established by me in the course of the proceedings, I may take into account any document presented to me by the parties in the course of these proceedings, for the purposes of this Award: see paragraph 4 of my e-mail dated January 8, 2013, and paragraph 3 of my Order No. 2.
42.
Given that YSS voluntarily decided not to give oral evidence in these proceedings, whether by videoconference or otherwise, despite my order for him to do so22, I am entitled to infer that evidence would be adverse to his interests, pursuant to Article 9(6) of the IBA Rules on the Taking of Evidence in International Arbitration23. Further, in general, to the extent that any party has not produced evidence requested by another party, without satisfactory explanation, I may make an adverse inference against it or him, pursuant to the same Article 9(6).
43.
Perhaps most importantly, and summarizing the points already by me in paragraph 40 of my Interim Award: CEIR's case against YSS involves serious factual allegations, alleging a pattern of fraud, illegality and dishonesty on the part of YSS with respect to CEIR, in connection with the transactions which are the subject-matter of this arbitration. In these circumstances, it was incumbent upon YSS to answer these factual allegations. Yet he has chosen not do so, whether by affidavit or oral testimony, except to provide declarations, and a Statement of Defense, that consist only of bare denials; information concerning SAM and TTI so as to counteract the alter ego argument; and a denial that the dissolution of SAM was undertaken for nefarious purposes. YSS announced his non-appearance to give evidence at the proceedings prior to any issue arising as to the availability of his Thai counsel to participate in the evidentiary hearings24. In these circumstances, except to the very limited extent that the evidence of CEIR - meaning, in practice, that of Mr. Henderson - against YSS is contradicted by YSS' declarations or by other evidence, I must take the evidence of CEIR against YSS as being true.

JURISDICTION OVER SAM

44.
There appears to be no dispute that I have jurisdiction over SAM. SAM is a party to the Amended Purchase Contract, which incorporates clause 10 of CEIR's "General Terms and Conditions of Purchase", recited above. I note that SAM is a defunct entity, which has been dissolved and liquidated25. There is therefore a real question as to the usefulness of any award against SAM, should one be made. Nevertheless, for the purposes of this arbitration, and pursuant to Article 15(1) and (3) of the Rules, I hereby rule that I have jurisdiction over SAM.

JURISDICTION OVER TTI

45.
The Statement of Defense filed on behalf of TTI by its then counsel, Shearman & Sterling, and, in particular, paragraph 10 thereof, does not deny that TTI is a party to the 2011 TTI Sale Contract. The Statement of Defense contains only a general denial that the contract is valid and enforceable, in paragraph 20. As already mentioned, I stated in paragraph 25 of my Interim Award that there appeared to be no dispute as to my jurisdiction over TTI in relation to the 2011 TTI Sale Contract. Nor was any point taken before the Emergency Arbitrator that TTI was not a party to the 2011 TTI Sale Contract, or that YSS had no authority to sign it on behalf of TTI. This did not become an issue until November 21, 2012, when Moses & Singer, TTI's newly-appointed counsel, took the point that YSS had no authority to execute the 2011 TTI Sale Contract on behalf of TTI. This was more than four months after the commencement of this arbitration. It was also more than four months after the commencement of this arbitration was notified by electronic mail and Federal Express to YSS and TTI by the International Centre for Dispute Resolution ("ICDR"), at the Guernsey address provided for TTI in the 2011 TTI Sale Contract, which address is the address of Deutsche Bank International Trust Co. Ltd., the sole shareholder of Regula Ltd. ("Regula"), which is, in turn, the sole Director of TTI.26 This address is also given as the address of Regula27. Mr. Bray alleges that he was not aware of the 2011 TTI Sale Contract until late September/early October 201228, and I have no reason to disbelieve him; however, it is inconceivable that the letter from the ICDR dated July 12, 2012, advising of the commencement of this arbitration, would not have been seen by one or more of the authorized signatories of Regula, whose address is given as the Guernsey address to which the ICDR's letter was sent29.
46.
Thus, the defense of YSS's lack of authority to sign the 2011 TTI Sale Contract bears all the hallmarks of a bogus defense, which apparently did not occur to the first two law firms that represented TTI (Kamthorn Surachet and Somsak Ltd., and Shearman & Sterling), and was raised, at a late date, by Moses & Singer on TTl's behalf. Nevertheless, having been raised and argued, it must be considered.
47.
TTI's Amended Statement of Defense, filed on December 4, 2012, alleges that "[YSS] was not authorized to enter into the [2011 TTI Sales Contract] on behalf of TTI", and that YSS is not an employee, officer, or director of TTI30.
48.
Whether I have jurisdiction over TTI depends on YSS' authority to bind TTI to the 2011 TTI Sale Contract, including the arbitration clause. No objection to my jurisdiction over TTI has been raised by TTI, except on the basis that it is not a party to the 2011 TTI Sale Contract, because of YSS' lack of authority. If TTI is a party to that Contract, it follows that I have jurisdiction over it. If TTI is not a party to that Contract, it follows that I do not have jurisdiction over it.
49.
If YSS had authority to sign the 2011 TTI Sale Contract on behalf of TTI, it must have been on the basis (a) that he had actual authority to do so; or (b) that he had apparent or ostensible authority to do so31. CEIR alleges that YSS had actual authority to bind TTI to the 2011 TTI Sale Contract; alternatively, apparent or ostensible authority.
50.
I must first determine what system of law applies to the issue of YSS' authority to bind TTI. CEIR argues for New York law32; TTI argues for Singapore law33. In my view, the issue of the authority of an individual to make a contract governed by New York law, on behalf of a British Virgin Islands corporation, must be governed by British Virgin Islands law or New York law. If I had finally to determine the matter, I would be inclined to find for British Virgin Islands law, as being the law applicable to matters of corporate governance of TTI34. However, the parties agree that there is no material difference between the three systems of law; for example, Singapore law relies on the same leading English law authority as does British Virgin Islands law; and New York law does not appear to be materially different. Therefore, when reaching the issue of apparent or ostensible authority, I will refer to the relevant New York, British Virgin Islands and English authorities.
51.
In support of its contention that YSS had actual authority to bind TTI to the 2011 TTI Sale Contract, CEIR relies on the letter dated June 8, 2004, from TTI to YSS, appointing YSS as TTI's investment advisor (the "Investment Letter")35. In my view, the Investment Letter does not grant actual authority to YSS to sign on behalf of TTI an agreement such as the 2011 TTI Sale Contract. By its terms, it designates YSS as "investment advisor" to TTI, and authorizes him to "discuss directly with [TTI's] banker, Deutsche Bank AG, Singapore Branch, all matters relating to the investment of [TTI's] assets". It then authorizes YSS to "make investment decisions on behalf of [TTI] and to instruct Deutsche Bank to execute such decisions using the assets and funds held in [TTI's] account number 8027328 with Deutsche Bank AG, Singapore branch". It further states:

"However, please note that any withdrawal, transfer or pledge either in whole or in part or the creation of any security interest whatsoever in or over the assets or funds in the above account or the entering into of any loan agreements or the drawdown of loans or signing of verification statements in respect of [TTI's] assets must be approved by the Directors of [TTI]".

This document, by its terms, appoints YSS only as investment advisor. While it authorizes him to make investment decisions, it is clear from the terms of the document that such decisions must be executed by giving instructions to Deutsche Bank. There is no evidence that any execution instructions in relation to the 2011 TTI Sale Contract were ever given by YSS to Deutsche Bank. And, if the 2011 TTI Sale Contract could be considered to constitute a "withdrawal" or "transfer" of assets or funds of TTI, there is no evidence that the director(s) of TTI approved the same. Therefore, even if it could be alleged that the Investment Letter authorized YSS to enter into the 2011 TTI Sale Contract on behalf of TTI (and 1 have serious doubts as to whether the language of the Investment Letter is broad enough to encompass a contract for the purchase and sale of tantalum for $8 million), the proper procedure for execution of, or authorization of, such an investment, was not followed. Therefore, CEIR's argument that YSS had actual authority, based on the Investment Letter, fails.

52.
Nor is it possible to allege that YSS had actual authority on some other basis. TTI correctly points out that he is not, and was not at any time, an officer, employee, or director of TTI. Nor is it possible to argue that YSS was granted express or implied actual authority, in view of the provisions of clause 11.2 of the Articles of Association of TTI36, which requires a director's resolution to appoint an "officer or agent" of TTI. No such resolution, appointing YSS, is in evidence37.
53.
I turn to apparent authority38. British Virgin Islands law follows the leading English authority on the subject, Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] QB 48039. And New York law, as expressed in Herbert Construction Co. v. Continental Insurance Co., 931 F. 2d 989, 993-4 (2d Cir. 1991), is not materially different. I have already stated, in paragraph 50 above, that my preference is for British Virgin Islands law; but the result under all three systems of law is substantially the same.
54.
According to the Freeman & Lockyer case, for an agent to have apparent (rather than actual) authority to represent a corporation, the corporation must have "known of and acquiesced in the agent professing to act on its behalf, and thereby impliedly represent[ed] that he has the [corporation's] authority to do so"40. The commonest form in which apparent authority is created is representation by conduct, that is, by permitting the agent to act in some way in the conduct of the principal's business with other persons41. The representation must be made by someone with actual authority, and the third party must rely on the representation42. New York law, as already stated, is not materially different, requiring that the principal should be responsible for the appearance of authority in the agent to conduct the transaction in question, and that the third party reasonably relied on the representations of the agent43.
55.
I find that, based on the above authorities, YSS did have apparent authority, at the relevant time, to bind TTI to the 2011 TTI Sales Contract, based on the following facts and matters:

(i) TTI had no officers, other than a Secretary44. Its affairs were therefore conducted by its sole Director, Regula Ltd. ("Regula"), a British Virgin Islands corporation45. Regula acted through certain authorized signatories, a list of which constitutes Claimant's exhibit 12. The Directors of Regula, acting through its authorized signatories, determined the corporate policy of Regula, and exercised discretionary power with respect to TTI46. Therefore, the authorized signatories of Regula and its Directors, acting in such capacity, constituted the corporate mind of TTI, and their actions in that capacity bound TTI;

(ii) Regula also acted as the sole shareholder of TTI. Until September 15, 2009, its shareholding of TTI was held as a nominee for YSS. Thereafter, the shareholding was held as a nominee for the YSS Trust, of which YSS is the settlor and a beneficiary, with power to appoint and remove the Trustees of the same47. The Trustee of the YSS Trust is Deutsche Bank International Trust Co. (Cayman) Ltd.48. The authorized signatory list of Deutsche Bank International Trust Co. (Cayman) Ltd. is similar to that of Regula49;

(iii) On at least 22 occasions between 2008 and 2012, funds, totaling approximately $2,750,000.00 (not including any transfer to Starplex International Corporation, referred to below) were transferred by TTI, from TTI's accounts, to accounts of YSS or his family, or to specific entities at the request of YSS50. It is an inevitable inference, and I so find, that all of these transfers were made at the request of YSS51;

(iv) TTI's bank accounts with Deutsche Bank Singapore (nos. 8027328 and 6018006) also acted, for all practical purposes, as the account of the YSS Trust52;

(v) In December 2011/January 2012, Deutsche Bank granted TTI a credit facility of $3,500,000.00, secured against an insurance policy on the life of YSS53;

(vi) On January 19, 2011, there was a credit to TTI's account for $1,350,000.00, from Recapture Metals Inc., with respect to "inv. 2228OA/2011 45RS201101190121", which strongly suggests a commercial transaction54. That is the same amount, from the same source, as was transferred to SAM on December 17, 2010, and immediately retransferred to YSS' personal account no. 300568355. SAM, one of the Respondents herein, was a trading entity of which YSS was a managing partner and also a general or unlimited partner at the relevant time56. It is an inevitable inference, and I so find, that the Recapture Metals Inc. transaction was a trading transaction; and that the $1,350,000.00 was routed to TTI at YSS' request. Thus, YSS made use of TTI as a conduit in connection with a trading transaction with a third party;

(vii) On October 7, 2011, there was a credit to TTI's account for $426,000.00, from "Piyama Charindhorn/Arsa Sarasin"57. I have no evidence as to whether this credit involved a commercial transaction, but it clearly suggests a transaction between a third party and TTI. This credit was later recorded as an addition to the trust fund of the YSS Trust, as being transferred from YSS58;

(viii) There is no evidence that Regula questioned in any way the transactions or inflow of funds with or from Recapture Metals Inc. or Piyama Charindhorn/Arsa Sarasin, mentioned above;

(ix) On September 14, 2012, the very day of the freezing order of the Supreme Court of British Columbia referred to in paragraph 13 hereof, it was resolved to transfer the entire balance of TTI's account 6018006, for the benefit of YSS, to an entity named Starplex International Corporation59. The coincidence of timing is striking; however, I cannot find, without further evidence, that the purpose of any such transfer was to frustrate the freezing order of the British Columbia Court, which order was made without notice to YSS;

(x) There is no evidence of any director's meetings having been held by TTI for the purpose of determining whether the above transfers or transactions were in the best interests of TTI or were otherwise proper60. If such minutes existed, one would have expected them to have been produced by TTI as evidence of the alleged following of "corporate formalities" by TTI61. There is no evidence of any request by YSS or the YSS Trust for a transfer of funds from TTI, or any transaction, having been rejected or even questioned by Regula in its capacity as sole director of TTI. On the contrary, the evidence shows, and I so find, that the requests of YSS for transfers of funds from TTI's accounts were honored routinely and with minimal consideration and, indeed, without regard for the corporate formalities (such as a director's meeting reviewing the requests and making an active determination with respect to the same) which one would expect when a request is made for access to corporate funds, even from a beneficial owner or the settlor of the beneficial owner. There is no evidence of any question being raised, or any real discretion being exercised, with respect to any other transaction. I find that, to use my own words at the evidentiary hearing, YSS used, and was permitted to use, TTI, as his personal bank account62; and that, far from the corporate formalities being observed, as alleged by the representatives of TTI, they were routinely disregarded, even to the extent of accepting orders addressed to an entity which was not a director of TTI63;

(xi) I therefore find that the sole Director of TTI, Regula, at all relevant times, and certainly as of August 2011, granted YSS unfettered and unlimited discretion to use TTI for his own financial purposes, including for business transactions, and exercised no active discretion in this regard. The wording of the requests to the Trustee and of the Trust Resolutions64 may have been such as to imply some discretion as to whether the requests should be granted; but the evidence I have seen overwhelmingly demonstrates that such requests were honored automatically and without consideration. It may well be that Regula and its authorized signatories, as well as those representing the Trustee of the YSS Trust, felt duty bound to honor such requests, coming as they did from the beneficial owner of TTI (until September 2009) and from the settlor and a beneficiary of the beneficial owner of TTI, with power to remove the Trustee of the beneficial owner (after September 2009). For whatever reason, free rein was granted to YSS, with its attendant legal consequences.

56.
Applying the above facts and the law in the context of the 2011 TTI Sale Contract: TTI, through its Director, Regula, which in turn acted through its authorized signatories, granted YSS unfettered discretion to use TTI for his own purposes, including directing incoming and outgoing transfers of funds, and dealing with third parties, including a commercial third party such as Recapture Metals Inc. (the Recapture Metals transaction occurring, be it noted, several months prior to the 2011 TTI Sale Contract). He was allowed to treat it in every sense as "his" corporation. Thus, to use the words of Pearson LJ in Freeman & Lockyer, TTI knew of and acquiesced in YSS professing to act on its behalf. It thereby impliedly represented that he had TTI's authority to do so. This representation was made by someone with actual authority, namely Regula. This course of conduct was well established by the time of the 2011 TTI Sale Contract in August 2011. For example, eighteen of the twenty-two transfers referred to in Paragraph 55(iii) hereof had occurred before that date, as well as the Recapture Metals transaction. By making such a representation, TTI placed YSS in a position to assert that he had authority to represent TTI in connection with transactions generally, including commercial transactions such as the 2011 TTI Sale Contract. It is true that Mr. Henderson's due diligence on behalf of CEIR, with respect to TTI, was deficient, and he was extensively cross-examined about it65. But it was TTI that placed YSS in a position to assert to all the world, including CEIR, that he represented it; CEIR, in the person of Mr. Henderson, relied on that representation; and TTI must abide by the consequences. I therefore hold that YSS had apparent authority to bind TTI to the 2011 TTI Sale Contract.
57.
I therefore find that TTI is a party to the 2011 TTI Sale Contract, including the arbitration clause; and that I have jurisdiction over TTI. It is no surprise that this defense did not occur to TTI until four months after these proceedings were commenced. It is indeed a bogus defense66, and it fails.

JURISDICTION OVER YSS

58.
The Emergency Arbitrator found that he had jurisdiction over YSS, as being a party to the Amended Purchase Contract and the arbitration clause contained therein67. In my Interim Award, I found that I had jurisdiction over YSS, as a party to both the Amended Purchase Contact and the 2011 TTI Sale Contract, including their respective arbitration clauses, on the following bases:

(i) that TTI acted as the alter ego of YSS, in relation to the 2011 TTI Sale Contract;

(ii) that YSS is estopped from denying that he is a party to the Amended Purchase Contract and the 2011 TTI Sale Contract.

See paragraphs 38-47, 49-51, and 53 of my Interim Award.

59.
Since my Interim Award was issued, YSS has presented no additional evidence, other than a declaration as to Thai law by Professor Ratanapijit, dated October 26, 2012. The witness statements which he proposed to present at the evidentiary hearing, as initially scheduled to be held in December 2012, were the YSS Declaration, and the witness statements as to Thai law of Professor Ratanapijit68. YSS expressly declined to give evidence at the evidentiary hearing69, and he and his attorneys ultimately withdrew all participation in the proceedings70. Accordingly, no further evidence has been forthcoming from YSS since the date of my Interim Award, except for the aforementioned declaration as to Thai law from Professor Ratanapijit, dated October 26, 2012; and the matters deposed to therein by Professor Ratanapijit are in no way relevant to the matters on which I based my finding of jurisdiction over YSS.
60.
Therefore, for the reasons and findings stated in paragraphs 38 - 47, 49 - 51, and 53 of my Interim Award, which are deemed to be set out and incorporated i n extenso herein, I find that I have jurisdiction over YSS, in relation to both the Amended Purchase Contract and the 2011 TTI Sale Contract. I find that he is a party to both Contracts and to the arbitration clauses incorporated therein. These findings, which were provisional for the purposes of my Interim Award, are now final. Further, I find no inconsistency in holding that TTI authorized YSS to sign the 2011 TTI Sale Contract, and that TTI acted as the alter ego of YSS in relation to the same contract. There is no inconsistency in saying both that TTI granted YSS free rein to represent it in relation to a transaction such as the 2011 TTI Sale Contract; and that YSS dominated TTI and used it to perpetrate a fraud on CEIR. The latter could be said to be a consequence of, and consistent with, the former.

LIABILITY UNDER THE AMENDED PURCHASE CONTRACT

61.
In paragraphs 42(i) and 64 of my Interim Award, I found provisionally that SAM was in breach of the Amended Purchase Contract, and that CEIR had demonstrated a strong likelihood that it would succeed in its claim against both SAM and YSS in relation to the Amended Purchase Contract. I must now make a final determination in this regard.
62.
The Amended Purchase Contract provides for the sale by SAM to CEIR of approximately 125,000 lbs. of syncons containing Ta205 (tantalum pentoxide), at a price of $39.10 per lb. The payment terms were 90% provisional payment on the basis of H.C. Starck assays, with the balance of 10% payable on the basis of the A.H. Knight outturn analysis. CEIR duly made the 90% provisional payment, amounting to $4,376,561.74, in two wire transfers, in May 200971. Neither SAM nor YSS have brought any evidence, prior to or subsequent to my Interim Award, to dispute CEIR's evidence that the syncons were never delivered to CEIR. Therefore, both SAM and YSS, as parties to the Amended Purchase Contract72, are liable to CEIR for breach of the Amended Purchase Contract, by failing to deliver the syncons which were purchased by CEIR. I will discuss the measure of damages hereafter.

LIABILITY UNDER THE 2011 TTI SALE CONTRACT

63.
In paragraphs 42(i) and 64 of my Interim Award, I found provisionally that TTI was in breach of the 2011 TTI Sale Contract, and that CEIR had demonstrated a strong likelihood that it would succeed in its claim against both TTI and YSS in relation to the 2011 TTI Sale Contract. I must now make a final determination in this regard.
64.
I have already found that TTI is a party to the 2011 TTI Sale Contract, in that it is expressly a party to the same, and YSS, who signed on its behalf, had authority to do so73. I have also found that YSS is liable under the 2011 TTI Sale Contract, based on estoppel74.
65.
The 2011 TTI Sale Contract provides for the purchase by TTI of approximately 124,000 lbs. of syncons containing Ta205 (tantalum pentoxide), to be delivered in Thailand, for a price of $8,055,000.00. There is no dispute that TTI did not pay to CEIR the purchase price of $8,055,000.00. Therefore, in principle, it appears that TTI and YSS are liable to CEIR for the amount of the purchase price.
66.
TTI raises the defense that CEIR never possessed or controlled the syncons sold under the 2011 TTI Sales Contract, and therefore was unable to perform the contract75. However, the whole basis of the 2011 TTI Sales Contract was that SAM would deliver the syncons to CEIR, for delivery, in turn, to TTI. Until August 2011 and beyond, CEIR was insisting on delivery of the syncons sold to it under the Amended Purchase Contract, and YSS was asserting that SAM had them available for delivery76. Therefore, CEIR was selling goods that it had every expectation would be available for delivery to TTI. Further, if it is the case that the syncons were no longer available for delivery to CEIR, then YSS, who had control of the syncons, was aware of the same, and, since YSS had apparent authority to act as TTI's agent or representative77, TTI is fixed with his knowledge and is estopped from alleging the unavailability of the syncons. Therefore, this defense of TTI fails.
67.
I therefore reject this defense and find that TTI and YSS are liable to CEIR under the 2011 TTI Sales Contract.

LIABILITY OF YSS FOR FRAUD

68.
CEIR also claims against YSS for fraud. However, CEIR's claim for fraud is brought only in the event that there is no finding of contractual liability against YSS under the 2011 TTI Sale Contract78. Since I have found, in paragraphs 63-67 hereof, that YSS is contractually liable under the 2011 TTI Sale Contract, I need not make a determination with respect to the fraud claim. However, had it been necessary to do so, I would have found YSS liable for fraud, based on the matters set out in paragraphs 41-46 of my Interim Award. Indeed, the evidence brought subsequent to my Interim Award demonstrates even more clearly that YSS benefited from his fraudulent course of conduct, by obtaining the payment by CEIR to SAM, of which entity he was a managing partner and a general or unlimited partner, of the $4,376,561.74 provisional payment under the Amended Purchase Contract; since, of that amount, $2,345,000.00 was transferred shortly thereafter from the SAM account to YSS' personal account no. 300568379.

LIABILITY FOR CONVERSION

69.
CEIR also claims against YSS for conversion of the syncons. However, CEIR's claim for conversion is brought only in the event that there is no finding of contractual liability against YSS under the 2011 TTI Sale Contract80. Since I have found, in paragraphs 63-67 hereof, that YSS is contractually liable under the 2011 TTI Sale Contract, I need not make a determination with respect to the conversion claim. However, had it been necessary to do, I would have found YSS liable for conversion, as of November 16, 201181.

TORTIOUS INTERFERENCE WITH CONTRACT

70.
CEIR makes no reference to this claim against TTI in its Post-Hearing Memoranda. I therefore assume that this claim has been abandoned and will say no more about it.

REMEDIES

71.
I first discuss remedies with respect to the Amended Purchase Contract. Ordinarily, under New York law, being the applicable law, a buyer's damages for non-delivery, where all or part of the price has been paid, consist of recovery of the price paid and, if applicable, damages for the difference between the contract price and the market price. Alternatively, in proper circumstances, the buyer may be granted specific performance, or replevin82. These remedies are requested by CEIR in its Statement of Claim: see paragraph 3 hereof. In this case, since the goods were never delivered, CEIR was entitled to recover from SAM (and from YSS, as a party to the Amended Purchase Contract) the price paid, of $4,376,561.74, and the difference between the contract price and the market price for the goods. Since the goods were never delivered, and therefore I do not know the precise weight of the goods that would have been delivered had the contract been complied with, I will take 124,000 lbs., being the weight stipulated in the 2011 TTI Sales Contract, and being close to the "approximate" amount of pounds specified by the Amended Purchase Contract, as the multiplicand for the purpose of determining the contract price. The multiplier is the price per pound specified by the contract, that is, $39.10. Therefore, the contract price is 124,000 multiplied by $39.10, that is, $4,848,400.00. It appears to be difficult to place a market price for the goods, at the time when CEIR learned of the breach, or at any time83. I will take the market price as being that in August 2011, when the same goods were sold to TTI, namely $8,055,000.00. Mr. Henderson believed this to be a representative price for the goods at the time84. Therefore, the difference between the contract and the market price, namely $3,206,600.00 ($8,055,000.00 less $4,848,400.00) is the measure of damages. This amount, $3,206,600.00, should be added to the part of the purchase price paid by CEIR, that is, $4,376,561.74, so that the full amount due to CEIR is $7,583,161.74. This amount, $7,583,161.74, is due to CEIR under the Amended Purchase Contract, and is payable jointly and severally by SAM and YSS, as parties to the Amended Purchase Contract.
72.
In addition, CEIR is entitled to an order of specific performance against SAM and YSS, in respect of the goods sold under the Amended Purchase Contract. The evidence of Mr. Henderson is that the goods were unique85. CEIR never gave up its claim to physical delivery of the goods, and insisted until a late date upon its requests to view them86. It is therefore entitled to an order of specific performance. This is not inconsistent with my finding, on a balance of probabilities, that YSS has disposed of the goods87. There is always a possibility that CEIR, and I, could be proved wrong, and that they are in fact available for delivery to CEIR. However, given the scant likelihood that this is the case, I will provide for a period of thirty days for the goods to be delivered, failing which the monetary remedies shall supersede the remedy of specific performance.
73.
With respect to the 2011 TTI Sale Contract, under which TTI and YSS are liable, the remedy is simple: payment of the purchase price of $8,055,000.00. If the syncons are delivered to CEIR within the thirty day period provided above, they shall be delivered to TTI, at TTI's option, in exchange for immediate and full payment of the purchase price, in accordance with the terms of the operative part of my Award hereafter.

THE COUNTERCLAIMS

74.
It follows that TTI's claims, set out in paragraph 18 of its Amended Statement of Defense, and YSS' claims, set out in paragraph 21 of his Statement of Defense dated October 12, 2012, are dismissed.

INTEREST

75.
Under Article 28(4) of the Rules, I am entitled to award pre-award and post-award interest. Under the applicable system of law, New York law, pre-judgment interest is payable at the rate of 9% per annum: Civil Practice Law and Rules, Sections 5001 and 500488. With respect to pre-award interest, I find it reasonable to award interest on $8,055,000.00 from September 1, 2011, some fifteen days after the signature of the 2011 TTI Sale Contract. I calculate interest from that date until the date of this Award as $1,253,270.00. Thereafter, interest shall continue to accrue, at the rate of 9% per annum, on the unpaid balance of any monetary award hereunder, until full payment to CEIR.

COSTS, INCLUDING LEGAL FEES

76.
I hereby determine, pursuant to Article 31 of the Rules, that CEIR, having substantially prevailed in its claims against SAM, YSS and TTI, shall be awarded the costs of these proceedings and the proceedings before the Emergency Arbitrator. These costs include my fees and expenses and those of the Emergency Arbitrator; the fees and expenses of the ICDR; and the reasonable costs for the legal representation of CEIR before me and before the Emergency Arbitrator. These costs are quantified as follows:

(i) My fees and expenses: $87,555.16;

(ii) The fees and expenses of the Emergency Arbitrator: $16,553.91;

(iii) The fees and expenses of the ICDR: $14,200.00;

(iv) Costs of legal representation of CEIR before me and the Emergency Arbitrator, which I find to be reasonable:

(a) Fees and disbursements of Marc Goldstein Esq.: $287,970.00;

(b) Fees and disbursements of Herbert Smith Freehills (Thailand) Limited: THB (thai currency) 1,374,037.81;

(c) Fees and disbursements of Maples & Calder (Cayman Islands): $105,297.80;

(d) Fees and disbursements of Borden Ladner Gervais LLP (Vancouver, British Columbia): Canadian $6,417.32.

YSS' OBJECTION TO THE EVIDENTIARY HEARING BEING HELD IN JANUARY

77.
I make some observations with respect to the objection, raised by counsel for YSS, to the evidentiary hearing being held on January 14-16, 2013. Substantively, at the time of this objection being raised in December 2012/January 2013, no additional material evidence had been tendered, or had been announced, by YSS, to overcome my findings on jurisdiction over, and liability of, YSS, made in my Interim Award dated October 26, 2012. As mentioned by me in paragraph 40 of my Interim Award, no evidence had been brought by YSS, at the time of my Interim Award, to refute the serious allegations of fraud, illegality and dishonesty made against him by CEIR. I proceeded to make substantive findings against YSS in paragraphs 42-47 of my Interim Award. Between the time of the Interim Award and the objection being raised by counsel for YSS, on December 6, 2012, to the hearing being held in January, the only additional evidence offered by YSS consisted of the additional Declaration as to Thai law of Professor Ratanapijit, referred to in paragraph 59 hereof. The time-limit for witness statements and reply witness statements had passed on November 2889. On November 21, the deadline for filing witness statements, Shearman & Sterling informed me on behalf of YSS that YSS would rely only on the Declarations of Professor Ratanapijit, already filed, and the YSS Declaration, previously filed in opposition to CEIR's application for interim measures. Further, as of November 27/28, YSS had already announced his intention not to give evidence in person90. Thus, as of December 6, 2012, YSS had elected, despite being represented by competent counsel, not to bring any additional evidence to contradict the substantive allegations made against him, and had announced his intention not to give evidence in person.
78.
Although Shearman & Sterling's objection to the hearing taking place in January was initially stated as being due to the "full schedule of Mr. Yeap's witnesses and counsel in January"91, ultimately it emerged that the only basis for the objection was the unavailability of YSS' Thai counsel, Dr. Kittayapong.92 In this connection, without prejudice to the other matters mentioned hereafter, I note Dr. Kittayapong's tendency to declare his unavailability for an entire month at a time: he informed me during the September 21, 2012 telephone conference that he was unavailable for the entire month of December; and I was informed by Shearman & Sterling in December that he was unavailable throughout January93.
79.
YSS has repeatedly attempted to obstruct or delay these and related proceedings, and/or to defy judicial or arbitral orders:

(i) YSS failed to communicate with CEIR after these proceedings were initiated; refused service of documents; requested a lengthy extension of time and postponement of a hearing date; and made false, unsubstantiated allegations against CEIR94;

(ii) AS of the time of closing of the hearing, YSS had not complied with the Emergency Arbitrator's Award;

(iii) YSS has been found in contempt by the Supreme Court of British Columbia for failure to make sufficient disclosure of assets pursuant to the freezing order made on September 14, 2012; and failed to appear for a cross-examination scheduled for January 7, 201395;

(iv) YSS did not comply with my order to appear as a witness in these proceedings96;

(v) YSS has been held in contempt by the U.S. District Court for the Southern District of New York for his failure to comply with the Court's judgment confirming my Interim Award97;

(vi) YSS failed to appear for a court-ordered deposition in Vancouver on January 7, 2013, the same day as the scheduled cross-examination referred to in sub-paragraph (iii) above and, coincidentally, the same day that Shearman & Sterling announced YSS' complete withdrawal from these proceedings98.

80.
In this context, YSS' effective withdrawal from the proceedings on January 7/8, 2013, on the sole basis of the unavailability of Dr. Kittayapong, can only be seen as a transparent attempt to frustrate these proceedings. The withdrawal occurred one month after the rescheduling of the evidentiary hearing was proposed, and more than one month after YSS had announced his intention not to give evidence in these proceedings. YSS was represented by competent counsel (Shearman & Sterling), and was afforded the right to be heard and a fair opportunity to present his case, pursuant to Article 16(1) of the Rules.

MY INTERIM AWARD

81.
Despite paragraph 6(i) of my Order No. 6, in which I requested the parties to specify the relief requested, the parties did not specifically address, in their Post-Hearing Memoranda and Briefs, the matter of the orders made by me in my Interim Award, and the possibility of amending or discharging the same. Accordingly, I make no further order with respect to my Interim Award.

Accordingly, I make the following

AWARD:

I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration agreements entered into between the above-named parties and dated May 17, 2009 and July 31, 2011, and having been duly sworn, and having duly heard the proofs and allegations of the parties, do hereby AWARD as follows:

1. Within thirty (30) days from the date of transmittal of this Award to the parties, YSS and/or SAM shall deliver to CEIR the syncons the subject of the Amended Purchase Contract. Such delivery shall be made in such manner as to grant CEIR immediate title and access to the goods, with the right of immediate inspection of the same, including the delivery to CEIR of such documents of title, warehouse receipts or other documents as shall enable CEIR to have full and unrestricted access to said syncons, and undisputed title to the same under all relevant systems of law.

2. Should said syncons be delivered to CEIR as aforesaid, CEIR shall notify the same in writing to TTI, within three business days of such delivery. TTI shall thereupon notify in writing to CEIR, within forty-five (45) days from the date of transmittal of this Award to the parties, whether it elects to take delivery of the syncons pursuant to the 2011 TTI Sale Contract, against immediate and unconditional payment to CEIR, in immediately available funds, of the full amount of and unconditional payment to CEIR, in immediately available funds, of the full amount of $8,055,000.00; or to renounce all claim to the same. If TTI elects the latter, it shall, within five business days of notifying such election in writing to CEIR, execute such document(s) releasing its claim to the syncons, as CEIR shall reasonably request. If TTI makes no election within said forty-five (45) day period, it shall be deemed to have elected to renounce all claim to the syncons, and shall execute document(s) releasing its claim to the same, as aforesaid. If TTI elects to take delivery of the syncons, it shall take delivery of the same, and pay the sum of $8,055,000.00 to CEIR as described above, within sixty (60) days from the date of transmittal of this Award to the parties; if TTI does not take delivery of the syncons and pay the purchase price as aforesaid within said sixty (60) day period, it shall be deemed to have renounced all claim to the syncons, and within five business days of the expiry of said sixty (60) day period, shall execute such document(s) releasing its claim to the syncons, as CEIR shall reasonably request.

3. Should the syncons not be delivered to CEIR within the thirty (30) day period indicated in paragraph 1 above, and in accordance with said paragraph 1, then, within sixty (60) days from the date of transmittal of this Award to the parties, each of YSS and TTI shall pay to CEIR the sum of $8,055,000.00 in respect of the 2011 TTI Sale Contract, and each of SAM and YSS shall pay to CEIR the sum of $7,583,161.74 in respect of the Amended Purchase Contract. The liability of YSS and TTI hereunder, with respect to the sum of $8,055,000.00, shall be joint and several; and the liability of YSS and SAM hereunder, with respect to the sum of $7,583,161.74, shall be joint and several. Without prejudice to paragraphs 4, 5 and 6 below: the liability of TTI hereunder shall not exceed $8,055,000.00; the liability of YSS hereunder shall not exceed $8,055,000.00; and the liability of SAM hereunder shall not exceed $7,583,161.74. Payment of any amount hereunder by any Respondent to CEIR shall reduce pro tanto the liability of the other Respondents to pay the amount due under this paragraph 3 to CEIR. Thus, for example, if YSS pays $1,000,000.00 pursuant to this paragraph 3 to CEIR, YSS' total liability pursuant to this paragraph 3 shall be reduced to $7,055,000.00; TTI's total liability pursuant to this paragraph 3 shall be reduced to $7,055,000.00; and SAM's total liability under this paragraph 3 shall be reduced to $6,583,161.74.

4. The administrative fees and expenses of the ICDR totaling $14,200.00, shall be borne by SAM, YSS and TTI, jointly and severally. The compensation and expenses of the Emergency Arbitrator, David Brynmor Thomas, totaling $16,553.91, shall be borne by SAM, YSS and TTI, jointly and severally. The compensation and expenses of the undersigned Arbitrator, Carlos J. Bianchi, totaling $87,555.16, shall be borne by SAM, YSS and TTI, jointly and severally. Therefore, SAM, YSS and TTI, jointly and severally, shall reimburse CEIR the sum of $118,309.07, representing said fees, expenses, and compensation previously incurred by CEIR, forthwith upon demonstration by CEIR that these incurred costs have been paid in full. This amount shall be payable to CEIR even if the syncons are delivered pursuant to paragraphs 1 and 2 above. The liability of the Respondents for this amount being joint and several, partial or total payment to CEIR of the same by one or more Respondents shall extinguish the liability of the other Respondent(s) to pay the same to CEIR, pro tanto.

5. Within thirty (30) days of the transmittal of this Award to the parties, the Respondents (SAM, TTI, and YSS) shall pay to CEIR the amount of $1,253,270.00, representing pre-Award interest. This amount shall be payable to CEIR even if the syncons are delivered pursuant to paragraphs 1 and 2 hereof, since it constitutes compensation for late delivery of the syncons, and/or late payment of the purchase price under the 2011 TTI Sale Contract. Should paragraph 3 hereof, ordering payment of damages, become effective (that is, if the syncons shall not be delivered pursuant to paragraphs 1 and 2 hereof), the Respondents shall pay to CEIR post-Award interest at the rate of 9% per annum, counted from the date of the transmittal of this Award to the parties, on any unpaid balance, until full payment to CEIR. The liability of the Respondents for pre- and post-Award interest being joint and several, partial or total payment to CEIR of the same by one or more of the Respondents shall extinguish the liability of the other Respondent(s) to pay the same to CEIR, pro tanto.

6. Within thirty (30) days of the transmittal of this Award to the parties, the Respondents (SAM, TTI, and YSS) shall pay to CEIR the amounts of $393,267.80, THB 1,374,037.81, and Canadian $6,417.32, representing attorney fees and disbursements. These amounts shall be paid to CEIR even if the syncons are delivered pursuant to paragraphs 1 and 2 hereof. The liability of the Respondents for these amounts being joint and several, partial or total payment to CEIR of the same by one or more Respondents shall extinguish the liability of the other Respondent(s) to pay the same to CEIR, pro tanto.

7. This Award is in full settlement of all claims and counterclaims submitted to this Arbitration.

I hereby certify that, for the purposes of Article 1 of the New York Convention of 1958, on the Recognition and Enforcement of Foreign Arbitral Awards, this Final Award was made in New York, New York, United States of America.
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