If the conciliation procedure prescribed in Article 10 above fails, the Parties agree that any dispute arising from or related to the Agreement shall be definitively settled in accordance with the ICC's Rules of Arbitration in accordance with this regulation. The arbitral tribunal shall consist of three (3) arbitrators and shall take place in Paris.
The arbitral tribunal shall apply to the substantive issues in the dispute Equatoguinean law, with the exception of its rules of conflict. The languages used shall be French and/or Spanish for written communications, and hearings shall be held in French.
The Parties pledge to maintain the strictest confidentiality with respect to the content of the arguments (be they oral or written) and the existence of the proceeding.
The arbitral tribunal can order provisional or emergency measures that the Parties pledge, as of now, to execute.
Arbitration costs shall be set by the arbitral tribunal and covered, equally, by the Parties. The arbitral tribunal shall determine their final costs.
The arbitral award shall definitively bind the Parties.
To the extent needed, the State expressly waives its right to any immunity from jurisdiction and enforcement. However, this waiver shall not allow the use of executive measures against State assets reserved exclusively for administrative, military or diplomatic use, or those pertaining more generally to the State's sovereignty."
His Excellency Dr. Juan Olo Mba Nseng, Deputy Minister of Justice, Worship and Penitentiary Institutions, Ministry of Justice, Worship and Penitentiary Institutions, Malabo II, Malabo, Republic of Equatorial Guinea, and His Excellency Dr. David Nguema Oblang, Attorney General of the Republic, Office of the Attorney General of the Republic/Palacio de Justicia, Avenida de la Independencia s/n Malabo.
Mr. José Rosell, Hughes Hubbard & Reed LLP, 8 rue de Presbourg, 75116 Paris, France. Telephone: +331 45 05 80 61. Fax: +331 45 53 15 04. Email: rosell@,hugheshubbard.com.
Dr. Alejandro Alonso Dregi, Salans FMC SNR Denton Europe Abogados SL, Calle José Ortega y Gasset, 29-6th. Madrid 28006, Spain. Telephone: +34 91 436 33 25. Fax: +34 91 436 33 29. Email: email@example.com. Via email dated May 16, 2014, Dr. Alejandro Alonso Dregi informed the ICC, the other members of the Tribunal and the Parties, of his new business address, from then on located at Paseo de la Castellana 53, 8th, Madrid 28046.
Mr. Horacio A Grigera Naón, 5224 Elliott Road, Bethesda, Maryland 20816, USA. Telephones: +1 301 229 1985/1 202 436 4877. Fax: +1 301 320 31316. Emails: firstname.lastname@example.org, hgrigeranaon@,yahoo.com.
"(i) The Parties are free to use French or Spanish in their written exchanges or communications with each other or with the Arbitral Tribunal, and there shall be no need to accompany these exchanges or communications with a translation into the other language.
(ii) Hearings shall be held and conducted in French.
(iii) Accordingly, during the hearings: a) The Parties' counsel shall have to speak in French (however, the Respondent's counsel shall be allowed, if needed, to briefly speak in Spanish if he encounters particular difficulty in expressing himself or making himself understood in French). b) The hearing transcript shall be prepared in French. c) The members of the Arbitral Tribunal shall speak in French, unless it is absolutely necessary to also speak in Spanish in order to make themselves better understood. d) Witnesses or experts may speak either in French or in Spanish. e) Translation and simultaneous interpretation services into both languages shall be arranged by the Parties.
(iv) All communications, directives, procedural orders, awards and, generally, any document issued or developed by the Arbitral Tribunal, or one requiring its intervention, shall be prepared and issued or communicated in French.
(v) Spanish or French documents, filings or exhibits submitted during the proceedings shall not be translated into the other language."
"The Agreement's arbitration clause stipulates that Equatoguinean law is the law applicable to the merits.
Moreover, in its Response to the Request, the Respondent indicated that Spanish positive law is directly applicable in the matter of the law of contracts and obligations as follows: "The Equatoguinean law of obligations and contracts is identical to that of the Kingdom of Spain." It then went on to demonstrate the foundation of French positive law. For its part, in its letter dated August 12, 2013, the Claimant indicated its agreement to the application of the Spanish positive law of contracts and obligations. It also confirmed that position during the August 21, 2013 telephone conference.
Accordingly, by mutual agreement of the Parties, the laws applicable to the substantive issues are the Equatoguinean law, the OHADA law, and for interpretation purposes, the Spanish positive law of obligations and contracts."
(a) State and rule that the Agreement was validly concluded between the Parties;
(b) State and rule that the Promise is valid and was validly exercised by FCR;
(c) State and rule that the price totaling 131,992,915 euros became final between the Parties on July 23, 2012;
(d) State and rule, in light of the foregoing, that sale of the entirety of FCR's stake in GETESA's corporate capital to the State at a final price totaling 131,992,915 euros occurred on August 22, 2012 (deadline for completion of the physical procedures associated with the sale, specifically payment of the price and transfer of the shares) and that the Parties were therefore bound by a Contract in that regard;
(e) State and rule that the State violated its obligations under the Agreement, the Promise, and the Contract by failing to pay the final price and complete the formalities pertaining to sale of the shares;
(f) Order forced enforcement of the Contract, and specifically order payment as well as immediate and complete fulfillment of the final price totaling 131,992,915 euros by the State to FCR;
(g) Order payment of the late interest due to the failure to pay the final price in a timely manner, with this interest commencing as of August 22, 2012;
(h) Order, as of payment of the price totaling 131,992,915 euros by the State to FCR, signature by FCR and the State of a share transfer receipt noting transfer of FCR's entire stake in GETESA's corporate capital to the State;
(i) State that, as of payment of the price totaling 131,992,915 euros to FCR, the State must record or cause to be recorded the sale of FCR's shares to the State in the GETESA Share Movements Register and in the Shareholders' Register, and in the event the State cannot locate these registers, do so in all new registers that it decides to open for that purpose, and, more generally, publish or cause to be published any notices related to this sale; and
(j) More generally, order indemnification of all emotional and physical damages, including all damages related to the State's failure to make the payment on a timely basis.
(k) State and rule that the arbitration clause is valid and was validly concluded by the Parties;
(l) Decide that it does have the jurisdiction to rule in this proceeding with respect to all claims made by the Parties; and
(m) Reject all of the Respondent's claims about jurisdiction.
(n) Order the Respondent to reimburse the Claimant for the fees the latter incurred for its defense in this arbitration proceeding, and in the amicable settlement phase, including the fees for legal assistance and representation, whose amount shall be determined at the end of the proceeding in accordance with Article 37 of the Rules;
(o) Order the Respondent to pay the expenses of the arbitration that the Claimant initiated, including the arbitrators' fees and expenses, the ICC's other administrative fees, as well as the fees and expenses of the experts named by the Arbitral Tribunal if necessary, whose amount shall be determined at the end of the proceeding in accordance with Article 37 of the Rules;
(p) Order the Respondent to pay the Claimant interest in the total amount ordered as of the date of signature of the Arbitral Tribunal's award in accordance with the Rules;
(q) Order interim enforcement of the award issued; and
(r) Reject all of the Respondent's substantive claims as well as its claims about the Arbitral Tribunal's lack of jurisdiction.
(a) The Agreement, its Article 9, and its Article 11 are absolutely invalid because they were signed by the Chairman of FCR's Board of Directors rather than by FCR's General Manager, the only position authorized by French law to legally and validly commit a public company;
(b) Article 9 of the Agreement is absolutely invalid given that (i) it preserves the autonomy of this article vis-a-vis the other stipulations of the Agreement, the November 4, 2011 Shareholder's Pact, or any other contract between the State and FCR, because an autonomous clause, like the arbitration clause, and Article 9 on the exit clause (as well as Article 11) must be treated as autonomous contracts and declared invalid separately by virtue of the principle of autonomy or separability of these clauses not only from the principal contract but also from the other clauses in the principal contract; and (ii) Article 9 excludes the non-arbitrability of exercise of the State's authority to grant licenses to operators in the telecommunications sector; and
(c) Article 11 of the Agreement is invalid because it is contrary to CEMAC's community law on competition and Article 30 of AUPOSRVE, which preclude any interim or conservatory measure or any forced enforcement against persons who have immunity from enforcement. The Respondent indicated that Article 30 is in the public interest.
(a) The request was not served on the State via the diplomatic means applicable pursuant to the immunity from notification enjoyed by the State, which is prescribed in French law (Article 684 of the French Code of Civil Procedure, referred to hereinafter as the "C.P.");
(b) According to applicable French law, the individual who signed the Agreement and the arbitration clause on FCR's behalf lacked the power or authority to do so. Consequently, the Agreement (including Article 9 thereof and the arbitration clause stipulated as an autonomous agreement vis-a-vis the principal contract), and the appendices to the Agreement are invalid;
(c) According to applicable French law, Article 1466 of the C.P. states that: "A party that, knowingly and without a legitimate reason, fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity;"
(d) According to the CEMAC's law, any agreement aimed at granting monopoly status to a company within the CEMAC zone is invalid because it violates the community law on competition, which prohibits a monopoly as well as the abuse of a dominant position. The Agreement was intended to grant monopoly status and a dominant position to FCR in a portion of the CEMAC market. Thus, it is contrary to the CEMAC's competition law; and
(e) According to the OHADA law and Equatoguinean law, the recourse to arbitration is possible when the matter pertains to rights that are freely available to the parties. According to Equatoguinean law, the rights arising from the State's public domain are not arbitrable. This public domain extends to the radio-electric space, the milieu or sector governed by Equatoguinean administrative law wherein the circulation or transmission of telecommunications lies. Given that granting concessions or licenses to operate in this space pertains to the public domain and its use rather than to rights that are freely available to the parties, the rights and obligations arising therefrom and the validity of any contractual clause limiting the State's right to grant these licenses or concessions (such as Article 9.3 of the Agreement) are not arbitrable. Moreover, these concessions or licenses are unilateral administrative acts by the State, and their subject matter is unavailable, Therefore, the rights related thereto cannot be arbitrated. For these reasons, the arbitration clause contained in Article 11 of the Agreement infringes on the OHADA's public policy as well as the Republic of Equatorial Guinea's public policy.
(i) The Request's notification procedure is invalid;
(ii) The arbitration clause is invalid because it was signed by the Chairman of FCR's Board of Directors instead and in place of its General Manager, and that the arbitration clause is invalid because it is inconsistent with Article 30 of the AUPOSRVE, and because granting a telecommunications operator license, which is only legally possible when exercising public power prerogatives, is not arbitrable. Finally, the State argued that the arbitration clause is invalid because it is contrary to CEMAC's competition law;
(iii) The Agreement is invalid for the same reasons as those invalidating the arbitration clause;
(iv) Article 9 of the Agreement is invalid for the same reasons as those invalidating the arbitration clause;
(v) The Arbitral Tribunal lacks jurisdiction because of the absolute invalidity of the arbitration clause; and
(vi) The courts of the Republic of Equatorial Guinea have jurisdictional competence because the Agreement is an act of sovereignty by the Equatoguinean State, and only the State's administrative courts do have the jurisdiction to rule on the legality of an administrative act.
(a) The Request was not properly served on the Respondent;
(b) Mr. Marc Rennard lacked sufficient legal authority to sign the Agreement, Articles 9 and 11 thereof, as well as the New Pact;
(c) Given that they are contrary to the OHADA law, Equatoguinean law and the State's obligations:
(i) The Agreement is invalid;
(ii) The arbitration clause (Article 11 of the Agreement) is invalid; and
(iii) FCR's exit clause (Article 19 of the Agreement) is invalid.
The text of that article is as follows:
"I. - The general manager shall be invested with the most extensive powers to act on behalf of the company in all circumstances. They shall exercise their powers subject to those that the Law allocates explicitly to shareholders' meetings and to the board of directors.
They shall represent the company in its dealings with third parties. The company shall be bound even by those acts of the general manager not covered by the purpose of the company unless it is able to prove that the third party was aware that the act exceeded these objects or that could not have known it in view of the circumstances, the simple publication of the memorandum and articles of association being excluded from constituting this proof.
Provisions in the memorandum and articles of association and decisions of the board of directors limiting the powers of the managers resulting from this article shall not be demurrable with respect to third parties.
II. - In agreement with the general manager, the board of directors shall determine the scope and the term of the powers conferred upon the assistant general managers.
The assistant general managers shall have the same powers as the general manager with respect to third parties."
"The Board of Directors hereby tasks the General Manager and the President, with the option of acting jointly or separately, to finalize the negotiations of the new agreements with the State of Equatorial Guinea, expedite all actions necessary within the context of the arbitration before the ICC, and sign if needed, in FCR's name and on its behalf, new agreements (shareholders' pact and transactional agreement) with the State of Equatorial Guinea."
"The board of directors determines the broad lines of the company's business activities and ensures their implementation. Without prejudice to the powers expressly invested in meetings of the shareholders, and in so far as the memorandum and articles of association permit, it deals with all matters relating to the conduct of the company's business and decides all pertinent issues through its deliberations. In its dealings with third parties, the company is bound even by acts of its board of directors which do not come within the purview of the company's corporate mission, unless it can prove that the third party knew that a specific action was extraneous to that mission or, given the circumstances, could not have been ignorant of that fact."
For its part, Article R.225-29 of the French Commercial Code states that:
"The board of directors can task one or more of its members, or third parties, whether shareholders or not, all special mandates for one or more specific objectives."
"The board of directors' jurisdiction extends to all of the company's acts of administration and even of disposition that are not expressly reserved for the general assembly by the law and by these by-laws. The board of directors can delegate to any representative it chooses all powers subject to the limit on the powers granted to it by the law and these by-laws."
"Waving determination of each Party's possible liability concerning genesis of the situation described in the preamble, the Parties hereby agree that this Agreement shall end any litigation that has arisen or may arise from enforcement, modification and/or termination of the Initial Pact between the Parties as well as their consequences, and from all contractual relations between them. It shall also end all litigations between them and/or any relationship of fact or law that may exist between them regarding these past events.
Moreover, this transaction is intended to definitively settle the amount of the indemnities, regardless of their nature, that FCR and the State believe they should receive as reparation for the previous harm caused by the litigation that has arisen or may arise as indicated above."
"Article 2: Transactional Indemnity. As a purely transactional matter, and without acknowledgment of fault by either Party, the Parties accept, as a transactional indemnity, to compensate exactly all amounts they believe the other Party owes them under the dispute covered by this Agreement.
This compensation shall occur on the day the Agreement is signed and shall completely fulfill the Parties' rights concerning the relations covered by the Agreement."
"Article 5: Abandonment - The Parties' Obligations. The Parties consider, without exception or reservation, that all accounts, disagreements, disputes or litigations that may exist on this day between them for any reason whatsoever, as set forth in the preamble, are definitively and irrevocably settled and extinguished. To that effect, the Parties definitively abandon all lawsuits and actions initiated against each other in connection with the Initial Pact.
FCR also expressly abandons, as well as freely, knowingly irrevocably and definitively puts an end to any right, action, lawsuit, claim, allegation, request or indemnity of any kind whatsoever, that has arisen or may arise, and that it may pursue against the State for any reason whatsoever as mentioned in the preamble of the Agreement, and specifically due to enforcement of the Pact.
Consequently, the Parties hereby declare that they shall discontinue the action that FCR initiated under the contractual dispute resolution mechanism set forth in the Initial Pact.
Finally, FCR abandons any action founded upon facts related to GETESA's management, prior to signature of the Agreement, and initiated against a GETESA corporate manager, director, member of the board of directors, or executive manager who was named or elected at the State's recommendation. In addition, the State abandons any action founded upon facts related to GETESA's management, prior to signature of the Agreement, and initiated against a GETESA corporate manager, director, member of the board of directors, or executive manager who was named or elected at FCR's recommendation, as well as against the expatriate personnel that FCR made available to GETESA."
(а) Provisions of Equatoguinean law based upon which the Respondent argued that the concession or license granting rights - whose exercise requires use of the public telecommunications domain, given the lawfulness of these rights, licenses or concessions - are inalienable because they preclude the authority to transact via private act. In any event, granting these rights, licenses or concessions imperatively requires prior administrative authorization, i.e. the issuance of an administrative document. Since granting such a right, license or concession is up to the State that is governed by Equatoguinean law, exercising it cannot be linked to an obligation to notify a non-beneficiary private party of issuance of the telecommunications license or concession. The Respondent also argued that, in this context, notification by the State to FCR of any new telecommunications operator license prescribed in Article 9.3 of the Agreement - triggering the exit mechanism established in that article -would violate Equatoguinean public law because it would limit the Council of Ministers' sovereign rights to even meet and make decisions about issuing new licenses. Consequently, none of these matters is arbitrable, can be the purpose of a transaction or, due to that fact, be subjected to this arbitral proceeding: (Article 338 of the Civil Code; Articles 1 et al, Article 55, Articles 96 et al, Article 126 of the Patrimonial Law of the State, articulated Text approved by Decree 1022/1964 dated April 15; Article 29.1 b) of the Fundamental Law of the Republic of Equatorial Guinea; Article 26 of the Telecommunications Law, as well as Article 3 and 4 of Law No. 5/2006 of November 2 on the administrative procedure);
(b) Provisions of Equatoguinean law based upon which the Respondent argued that, due to their nature, the Parties' disputes in this arbitration are subject to the exclusive jurisdiction of the State courts (Organic Law No. 5/2009 of May 10 as amended Judiciary Organic Law No. 10/1984 ("LOPJ"), Article 16; and the Juridical Regime of the Central Administration of the State Law ("Central Law"), Article 56(3) and 58.
(c) Imperative provisions or public policies of the CEMAC law, which were violated by Article 9.3 of the Agreement, prohibiting the maintenance or abuse of a dominant position in the common market if that prevents the State from granting telecommunications operator licenses in the Equatoguinean territory (CEMAC Regulation No. 04/99/UEAC-CM-639 of August 18, 1999, Article 8.2; CEMAC Regulation No. 1/99-UEAC-CM-SE of June 25, 1999, Articles 4, 15, 16; CEMAC's Court of Justice Opinion No. 004/2012-13, dated June 27, 2013); and
(d) Provisions of OHADA, which constitute communal public policy, and according to which Article 11 of the Agreement is invalid because it pertains to waiver of the State's sovereign immunities in violation of the Uniform Act on Simplified Recovery and Enforcement Procedures (AUPOSRVE), whose application is obligatory in all OHADA Member States: (Article 10 of the OHADA Treaty; Articles 30 and 336 of the AUPOSRVE; as well as OHADA Common Court of Justice and Arbitration (CCJA) Decision No. 043/2005 of July 5, 2005).
"The aforementioned provisions, which the Parties have freely discussed and agreed to, and which represent their reciprocal concessions, constitute a transaction within the meaning of Articles 1809 et al of the Equatoguinean Civil Code, and Articles 2044 et al of the French Civil Code pursuant to which the transactions between the Parties are deemed res judicata and cannot be revoked on the grounds of error of law or injury."
"This Regulation applies to all community-level operations." Moreover, Article 16 prohibits the abuse of a dominant position, and states that "...in the event where trade between Member States may be affected..." In any event, the beginning of the preamble clearly states that the objective sought is "...the phasing out among Member States of restrictive trade practices..." Another portion of this preamble is set forth above and also shows that it only applies to competitive practices affecting the common market or a portion thereof.
"The transactional agreement mentioned in the Request for Opinion does not constitute a community judicial document within the meaning of Article 21 of the Addendum to the Treaty, but rather the parties' law.
Therefore, CEMAC's Court of Justice cannot validly rule on it."
On the merits, the Court's opinion stated that:
"All agreements or decisions made in connection with prohibited anti-competitive trade practices are legally invalid.
Like all other CEMAC Member States, the Republic of Equatorial Guinea must take all actions necessary to bring its national legislation into conformity with the communal standards."
Therefore, this opinion is general in scope, does not affect the Agreement or its stipulations, and does not pertain to their validity or efficacy from a CEMAC law perspective. Moreover, this opinion confirms that the Agreement is "... the parties' law..."
"To the extent needed, the State expressly waives its right to any immunity from jurisdiction and enforcement. However, this waiver shall not allow the use of executive measures against State assets reserved exclusively for administrative, military or diplomatic use, or those pertaining more generally to the State's sovereignty."
"Indeed, the respondent has not presented arguments on the substantive claims. These are simply the respondent's remarks about the invalidity of the arbitration agreement because there can be no arguments on the substantive claims in the presence of an invalid arbitration clause."
"Article 9: FCR's exit clause:
9.1: The State makes FCR, which accepts, an irrevocable promise to purchase all GETESA shares held by FCR, i.e., the 40% stake, subject to the conditions and price defined below.
9.2: The price for exercising this promise (referred to hereinafter as the "Sale Price") with respect to FCR's entire stake in GETESA shall be equal to the sum of:
- 40% (forty percent) of 6.5 times (six and one half times) GETESA's EBITDA (1) for the year preceding the year in which FCR exercises the promise, or the highest EBITDA in the years 2009 and 2010, which ever is higher, plus:
- 40% (forty percent) of the dividends distributable in the fiscal year during which the notice mentioned in Article 4.3 below is sent to the State, on a pro rata basis.
9.3: FCR can act upon this promise, one time, via notice to the State:
- At any time during the period commencing on the day after closure on December 31 of GETESA's second fiscal year as of signature of the Agreement and expiring on December 31, 2015.
- After one of the following events has occurred, subject to a minimum advance notice of three (3) months, subject to notice no later than nine months after that event occurs, and provided that event occurs before expiration of the Pact:
i) If GETESA uses an international telecommunications operator brand that does not belong to the France Telecom Group.
ii) If GETESA terminates the new technical assistance contract specified by Article 15 of the Pact.
iii) If the State approves a new telecommunications operator license in the Equatoguinean territory, or acquires a financial stake in the capital of a new telecommunications network operator active in the territory of the Republic of Equatorial Guinea.
The term "telecommunications network operator" excludes:
- The construction or operation of networks that are not marketed to all or part of the public, and that are dedicated to routing the communications of the State or its bodies and divisions such as, for example, networks connecting military, judicial, police, academic institutions, etc.
- Political, legislative or regulatory activities associated with telecommunications.
If the State decides to grant a new telecommunications operator license in the Equatoguinean territory, or acquires a stake in the capital of a telecommunications network operator active in Equatorial Guinea, it shall provide FCR with advance notice about that decision.
9.4: Sale of the shares shall be subject to the following conditions:
- Without any guarantee other than that the shares exist, that they are fully possessed and owned by the seller, and that there is no right, lien, preferential or succession right to the benefit of a third party,
- Calculation of the EBITDA and Sale Price shall be prepared by FCR and notice thereof shall be sent to the State at the same time as the notice of acting upon the promise.
The State shall have a period of forty-five (45) workdays from the date of notification of exercise of the promise to communicate its approval or refusal of the EBITDA and/or Sale Price calculation.
If the State communicates its refusal, the Parties shall have a period of twenty (20) workdays to reach an agreement regarding calculation of the Sale Price.
If no agreement is reached, an independent expert chosen through common agreement between the Parties shall calculate the EBITDA and/or the Sale Price in a definitive and non-appealable manner. If the Parties cannot agree on this choice within fifteen (15) workdays of receipt of the notice of refusal from the State, the ICC's International Center for Expertise shall choose said independent expert in accordance with the provisions on the nomination of experts set forth in the expertise regulations of the International Chamber of Commerce in Paris, and the expertise proceedings shall proceed indifferently in French and Spanish.
Transfer of the shares and payment of the price shall occur concurrently, and no later than thirty (30) days following definitive determination of the Sale Price.
This purchase promise clause is independent of the other stipulations in the Agreement, the Pact or any other contract between FCR and the State. Thus, it shall maintain its effect even if the other provisions of the Pact are deemed inapplicable or are executed in a manner inconsistent with the Pact, regardless of whether that is due to the actions of one Party or the other.
(1) EBITDA ("EBITDA") means net annual earnings before interest, duties, taxes, depreciation and amortization, prepared on the basis of GETESA's certified annual financial statements."
(a) Via letter dated May 16, 2012, FCR notified the State of (i) FCR's decision to exercise its right under Article 9.3 to exercise the purchase promise, and to do so consistent with Article 9.2 of the Agreement; (ii) the Sale Price for FCR's entire stake in GETESA, which totaled 131,992,915 euros; and (iii) the EBIDTA considered for calculation of the Price pursuant to this article15. In the same letter, FCR reminded the State that it had forty-five (45) days from the date of the letter "... to provide notice of its approval or refusal of the EBIDTA and/or Sale Price calculation..."16;
(b) Via letter dated July 25, 2012 to the State, FCR noted that the State had (i) failed to respond to FCR's May 16, 2012 letter, and had not objected thereto based upon Article 9 of the Agreement regarding the prescribed deadlines, the Sale Price calculation or its amount totaling 131,992,915 euros; (ii) failed to provide banking instructions for the Sale Price, which became final and payable to FCR; (iii) failed to indicate, in application of the stipulations of Article 9 of the Agreement, that the shares would be transferred and the price would be paid concurrently no later than August 22, 2012; and (iv) received a proposal from FCR for a meeting with a State representative to proceed with transfer of FCR's stake in GETESA to the State17; and
(c) The State failed to respond to any of the Claimant's letters, or object to their content.
(i) The Claimant has proven that it exercised its exit rights under Article 9 of the Agreement and of the option contract governed by its stipulations as prescribed, and that the Claimant did so within the contractual timeframes for exercising its rights;
(ii) As of July 23, 2012, the date on which the Sale Price became final, the sale option contract (the "Option") became fully binding between FCR and the State by virtue of the stipulations of Article 9 of the Agreement.
(iii) The Claimant asked the Arbitral Tribunal to order the Respondent to pay the late interest due to its failure to pay the final Sale Price in a timely manner. However, the Claimant did not indicate the interest rate applicable, and the Respondent did not opine on this issue or the date as of which this price would be augmented by the interest. Since the Claimant's July 25, 2012 letter, wherein it sought payment of the Sale Price that would become final on August 22, 2012, validly notified the Respondent that if this Price were not paid within the timeframe arising from Article 9 of the Agreement, i.e., no later than August 22, 2012 (Article 1100 of the Spanish Civil Code24) [interest would apply], and since the State failed to pay this Price within the requisite timeframe, the Claimant is owed late interest as of that date on the final Sale Price denominated in euros, without opposition from the Respondent, which necessitates that the applicable interest rate be consistent with the European nature of the payment currency; and
(iv) The Respondent has violated its obligations under Article 9 of the Agreement and the Option, and specifically its obligation to pay FCR the final Sale Price totaling 131,992,915 euros. Therefore, the Arbitral Tribunal can, consistent with Article 1098 of the Spanish Civil Code25, impose forcible enforcement on the Respondent of its obligations under Article 9 of the Agreement and the Option, including:
(a) Payment to FCR of the sum of 131,992,915 euros in exchange for sale to the State of FCR's stake in GETESA;
(b) Payment to FCR of the late interest on the 131,992,915 euro amount as of August 22, 2012, at the simple twelve-month interest rate regularly published by the European Central Bank for financing operations, and to do so until complete payment of the sums owed to FCR; and
(c) Signature, together with the Claimant, of a slip confirming transfer to the State of the entirety of FCR's stake in GETESA's capital and, consistent with Article 764 of the OHADA Uniform Act Relating to Commercial Companies and the Economic Interest Group26, registration, as of payment of the Sale Price by of the State, of the sale of these shares in GETESA's Share Transfer Register and in the Shareholders' Accounts, or, if they cannot be found, in any new registers or accounts the State shall decide to open for that purpose and, more generally, to publish or have published any publications regarding this sale.
(i) Reject the Respondent's objections to the validity of the notification of the Request;
(ii) Reject any objection by the Respondent to the Arbitral Tribunal's jurisdiction, and declare that it does have the jurisdiction to resolve all disputes submitted to it by the Parties in this arbitration;
(iii) Note that the Agreement, each of its stipulations (including Article 9 and 11) and appendices, as well as the New Pact are valid and were validly concluded by the Parties; and reject any argument by the Respondent that (a) it did not validly give its consent during conclusion of the Agreement, or that it did not specifically consent to the stipulations contained in Articles 9 and 11 of the Agreement, and to the New Pact, or (b) the Agreement, including Article 9 and 11 thereof as well as its appendices are invalid;
The award may be declared provisionally enforceable.
It shall be served via a certificate of service, unless the parties agree otherwise."
(iv) Note that the Promise was validly exercised by FCR consistent with Article 9 of the Agreement;
(v) Note that the Option became fully obligatory as of July 23, 2012, the date on which the Sale Price as prescribed in the Agreement became final;
(vi) Note that the Respondent violated its obligations under Article 9 of the Agreement and of the Option, specifically with respect to payment of the Sale Price whose final amount is 131,992,915 euros pursuant to the Promise;
(vii) Order the Respondent to fulfill its obligations under Article 9 of the Agreement and under the Option, specifically with respect to:
(a) Payment to FCR of the sum of 131,992,915 euros in exchange for sale to the State of FCR's stake in GETESA;
(b) Payment to FCR of the late interest on the 131,992,915 euro amount as of August 22, 2012, at the simple twelve-month rate regularly published by the European Central Bank for financing operations, and do so until complete payment of the sums owed to FCR; and
(c) Signature, together with the Claimant, of a slip confirming transfer to the State of the entirety of FCR's stake in GETESA's capital, and registration, as of payment of the Sale Price by of the State, of the sale of these shares to the State in GETESA's Share Transfer Register and in the Shareholders' Accounts, or, if they cannot be found, in any new registers or accounts the State shall decide to open for that purpose and, more generally, to publish or have published any publications regarding this sale.
(viii) Order the Respondent (Article 37 of the Rules) to pay the Claimant:
(a) The sum of 1,830,613.79 euros corresponding to the costs that the Claimant has had to incur to defend its rights;
(b) The sum of US $417,500.00 corresponding to one-half of the arbitration costs, which the ICC has set at US $835,000.00;
(c) As of the date of this Final Arbitral Award, the interest on the euro amount mentioned in paragraph (viii) (a) above, at the simple twelve-month interest rate regularly published by the European Central Bank for financing operations, and do so until complete payment to FCR of the sums that are owed and unpaid; and
(d) As of the date of this Final Arbitral Award, the interest on the US dollar amount mentioned in paragraph (viii) (b) above, at the twelve-month LIBOR simple interest rate for US dollars as set by the ICE Benchmark Administration (IBA) at 11:00 am (London time) on January 1st, for the amounts that remain unpaid;
(ix) Order the Claimant to cover its own costs for the defense of its rights;
(x) Order interim enforcement of this Final Arbitral Award (second paragraph of Articles 1484 C.P., which is referenced by Article 1506 C.P.);
(xi) Reject any other request, defense or claim submitted in this arbitration that the Arbitral Tribunal has not granted in this paragraph 139, with the exception of the substantive claim that the Claimant formulated as an alternative and ultimately withdrew.
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