That is an application relating to the admissibility of the new documents.
"I mean, I have quite a lot to say in addition... but as far as my clients are concerned, they are content to waive any conflict that may exist in [Arbitrator X]."
"There will be a failure to deal with an issue where the determination of that issue is essential to the decision reached in the award. An essential issue arises in this context where the decision cannot be justified as a particular key issue has not been decided, which is critical to the result, and there has not been a decision on all the issues necessary to resolve the dispute or disputes." And (v):
"The issue must have been put to the tribunal as an issue and in the same terms as is complained about in the s. 68 (2) application."
"(vi):If the tribunal has dealt with the issue in any way, section 68.2(d) is inapplicable and that is the end of the inquiry. It does not matter for the purposes of section 68.2(d) that the tribunal has dealt with it well, badly or indifferently."
"(vii): It matters not that the tribunal might have done things differently or expressed its conclusions on the essential issue at greater length."
"As already observed, SB claims extensions of time in respect of the period up to 7 March 2011 amounting in total to 193 days. The Tribunal addresses that claim in relation to Module 5 only, since that is the only module for which the contractual milestone had passed by the date of termination", and then they refer to the constituent elements of the claim, with regard to different windows forming part of module 5, and they say that they are going to go on to address the claims for extensions of time, which they then do, relating to module 5.
"Whether ACT was entitled to terminate the contract under clause 15.2(c)(i) raises two issues:
"(a) was SB proceeding with the Works with due expedition and without delay during the relevant period?
"(b) did SB have a reasonable excuse for such failure?
That of course was the nub of the case, because that was the contractual term under which the Defendant terminated.
"First SB maintains that clause 15 permits termination only for significant or substantial breaches, as opposed to trivial, insignificant or insubstantial ones."
And they accepted that proposition at paragraph 1114.
At paragraph 1115 they recite:
"The second point of principle is over what period should SB's performance be judged for the purposes of termination under clause 15.2(c)(i)."
"The tribunal accepts that it has to determine SB's entitlement to an extension of time and that its performance during this period should be considered in that context."
That of course is the period prior to termination, which would have involved at that stage only module 5. They continue:
"Apart from that, the tribunal does not accept that it should 'look forward to consider the prospects of the project'..." - a quotation from SB's submissions - "... if this means that the tribunal should assess SB's prospects of recovering past culpable delays. There is nothing in the language of clause 15 to suggest that such a prospective analysis is required."
"The tribunal also agrees with ACT that the calculation of the notional final account of SB for the purposes of clause 15.4 does not require the parties or the tribunal to engage in speculation as to what future claims SB or ACT may or may not have had against each other. This includes in particular any assessment of any entitlement to extensions of time in the future, future claims for liquidated damages, or future claims for prolongation costs." 1320: "Such claims are by definition unknowable and speculative."
"... Even assuming that SB could prove that such matters would have been critical at some point in the future and that there were no concurrent delays which would preclude the granting of an extension of time under clause 8.3, how would one determine, for example, whether, at the time of the assumed future delay, SB would nevertheless have been on site in any event as a result of delays for which it was responsible, thereby reducing or extinguishing any claim for prolongation costs."
"The tribunal proposes to correct this regrettable and unfortunate oversight by using its powers under Article 35.1 of the Rules to issue an addendum to the award to which the appendices will be attached. The addendum will then form part of the award. The tribunal can exercise this power provided the correction is submitted to the ICC Court within 30 days of the date of the award, ie by 30 September 2017.
However, before drafting the addendum the parties would like to give the parties the option of waiving these formalities, this would require the parties to agree to treat the final award as including the attached appendices for all purposes."
"... have not yet been formally notified of the award... In the circumstances... SB considers that none of the time limits in Article 35 or under the law of the seat have started to run... For the avoidance of doubt SB is not prepared to waive this irregularity in the preparation, scrutiny and notification of the award and reserves all of its rights in respect of the award's compliance with the ICC rules."
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