A (i) a Declaration that the Paka Discount set out in Article 10.9 of the GSA is binding on the Respondent;
(ii) a Declaration that the invoices raised by the Respondent to the Claimant for dry gas supplied to the Paka Power station at the Government Gas Price had to include a deduction for the Paka Discount;
B. (i) a Direction that the Respondent be directed to issue adjustment credit notes (in terms envisaged by Article 11.2 of the GSA) to reflect the omitted Paka Discount in all previous invoices raised by the Respondent for dry gas supplied to the Paka Power Station;
(ii) a Direction that the Respondent be directed to issue all future invoices for dry gas supplied to the Paka Power Station upon terms of the declarations sought therein;
C. (i) a Direction for payment by the Respondent to the Claimant of such sums as determined in these proceedings and/or reflected in the adjustment credit notes under B (i) above;
(ii) a Direction for payment by the Respondent to the Claimant of interest on such sums at the agreed rate specified in Article 11.8 of the GSA covering the periods that the Respondent has had use of such sums;
D. Further or Other Relief; and
(i) that the Claim as pleaded does not fall within the arbitration agreement in Article 19.2 of the GSA. as it seeks a sum arrived by reference to the Regulated Price which is not agreed or defined nor set out in Article 10 or elsewhere in the GSA;
(ii) that the purported cause of action as pleaded in the Statement of Claim did not accrue within six years of the commencement of the arbitration and is barred, either in part or whole, by section 6 of the Limitation Act 1953;
(iii) that the Claim is barred by laches, acquiescence and/or delay; and
(iv) that the Claim stands to be dismissed with costs.
(1) a Declaration that the Claimant is liable to purchase dry gas from the Respondent for use in the Power Stations at the Price as defined in Article 10.1 from the date of the execution of the GSA until its expiry;
(ii) a Declaration that the Discount in Article 10.9 applies only to the Price as defined in Article 10.1:
(iii) General damages for breach of the GSA;
(iv) Interest at such rate and for such periods as the Tribunal deems fit on all past sums due to the Respondent;
(vi) Such further or consequential orders as the Tribunal deems fit, necessary or justified in the circumstances.
(i) that the Respondent is estopped from contending that the Paka Discount is no longer available to the Claimant;
(ii) that there is no basis in law or fact for the Respondent now to contend that the Claimant's pleaded claim is outside the arbitration agreement;
(iii) that the defence of limitation is not available to the Respondent having regard to the operative events, including the conduct of the Respondent, from July 1999 to June 2008;
(iv) that the Respondent is estopped from asserting limitation, relying on the Limitation Act 1953 and from advancing its contentions of laches, acquiescence and/or delay.
Sabapathy, Mr Simon Hall and Ms Carmelia Cheong, instructed by Logan Sabapathy & Co. The Respondent was represented by Tan Sri Clive Abraham, Mr Rishwant Singh and Ms Chuar Pei Yaun, instructed by Zul Rafique & Partners. The Tribunal heard evidence from the Claimant’s witness Mr Yeoh Soek Hong and from the Respondent’s witnesses Madam Yap Swee Yoke and Madam Hamidah Abd Ghani on 2 and 3 March 2015. Oral submissions were heard on 5 and 6 March 2015. In the course of the hearing Mr Abraham for the Respondent informed the Tribunal that he was no longer insisting on his argument that the Claim as pleaded did not fall within the arbitration agreement in Article 19.2 of the GSA. Mr Maclean for the Claimant informed the Tribunal that he accepted that the Claim, in so far as it related to sums paid on invoices delivered prior to 1 April 2008, was barred by limitation under section 6 the Limitation Act 1953. Mr Abraham accepted that the Claim in so far as it related to sums paid on invoices delivered after that date was not barred by limitation. But he maintained his limitation argument in so far as the Claim related to a sum which the Claimant paid to the Respondent under protest on 3 December 2008. No arguments were addressed to the Tribunal by either side on the issues of laches, acquiescence or delay.
(i) all invoices issued by the Respondent to the Claimant for dry gas supplied to the Paka Power Station had to and must, from the beginning until the end of the Contract Period, include a deduction for the Paka Discount provided for in Article 10.9 of the GSA;
(ii) the Respondent is directed to pay to the Claimant within fourteen days of the date of this Award the sum of RM279,517,366.68 being the amount of the Paka Discount paid by the Claimant to the Respondent on invoices during the period from 26 October 2008 to 14 February 2015 in excess of the Respondent’s contractual entitlement;
(iii) the Respondent is directed to pay to the Claimant within fourteen days of this Award the sum of RM 162,268,649.43, being the amount of the Paka Discount for the period from 17 April 2005 to 25 October 2008 which was paid by the Claimant to the Respondent on 3 December 2008 in excess of the Respondent’s contractual entitlement;
(iv) the Respondent is directed to pay to the Claimant interest at the rate specified in Article 11.8 of the GSA on the sums referred to in (ii) and (iii) above from 15 February 2015 until the date of payment;
(v) the Respondent is directed to pay to the Claimant within fourteen days of the date of this Award the following further sums, namely
(a) the sum of RM66,351,783.47 being interest on the sum referred to in (ii) above at the rate specified in Article 11.8 of the GSA from the various invoice payment dates up to 14 February 2015; and
(b) the sum of RM74,090,753.90, being interest on the sum referred to in (iii) above at the aforesaid rate from 3 December 2008 to 14 February 2015;
(vi) the Respondent is directed to account to the Claimant for an amount equal to RM0.94781/GJ (namely the Paka Discount) on the price of all dry gas supplied to the Paka Power Station from 14 February 2015 to the date of the issuing of this Award, together with interest thereon at the rate specified in Article 11.8 of the GSA from the various invoice payment dates until the date of payment;
(vii) the Counterclaim is dismissed;
(viii) the Respondent shall bear the whole of its own legal costs, together with its share of the amount of R Ml22. 392.68 which has been agreed as the expenses of this arbitration.
(ix) the Respondent is directed to pay to the Claimant within fourteen days of this Award the legal costs that the Claimant has incurred in this arbitration, which the Tribunal has assessed and fixed at RM2.5m.
(x) the Respondent is directed to pay to the Claimant within fourteen days of this Award the Claimant's share of the amount agreed as the expenses of this arbitration, amounting to RM61,196.34.
(xi) the Respondent shall bear the whole of the Tribunal’s costs including its fees and expenses, together with all the charges made by the LC1A in respect of the deposits held by it for payment of the Tribunal’s costs.
(xii) the Respondent is directed to reimburse the Claimant within fourteen days of the date of this Award for all the sums that the Claimant has advanced towards the costs of the Tribunal, less the amount (if any) returned to the Claimant by the LC1A.
"10.1 Subject to Article 10.10. the price (the 'Price') of Dry Gas supplied to Buyer at the Delivery Point at Pasir Gudang in any week shall be determined in accordance with the formula set out below and as illustrated by the example attached herewith as Schedule A... [there was then set out a formula for the calculation of Pn, being the invoice price of Dry Gas for each week].
10.8 The Price of Dry Gas as provided in this Article shall be reviewed when the price Pn calculated under Article 10.1 exceeds RM7.11/GJ or falls below a level which renders it uneconomical for Seller to deliver the Gas to Buyer.
10.9 Subject to Article 10.10 the price of Dry Gas supplied to the Buyer at the Delivery Point at the Paka Power Station in any week shall be the Price less RM0.94781/GJ.
10.10 The price of Dry Gas shall be increased to include the amount of any tax levied on Seller in respect of the sale and delivery of Dry Gas to Buyer under this Agreement, provided that the Seller will remain responsible for payment of such tax to the relevant authority. "
The illustration of the gas price calculation in Schedule A showed how the price Pn was to be determined by applying the formula for Pasir Gudang and for Paka respectively. In the case of Paka it showed that there was to be a deduction of RM0.94781/GJ (RM1.00/GJ) from the figure produced by the application of the formula.
"11.6 If Buyer in good faith disputes the accuracy of any invoice, debit note, credit note or statement in full or in part, Buyer shall first settle the total invoiced amount in full (including the disputed amount) promptly and Seller shall carry out verification of the discrepancies within seven (7) days or such longer period as the parties may agree (such consent not to be unreasonably withheld) from date of notification of discrepancies. Should Seller not make any necessary corrections within seven (7) days or such longer period as the parties may agree (such consent not to be unreasonably withheld), then Buyer may withhold the next payment to Seller for the unresolved disputed amount until the settlement of the dispute in accordance with the provisions of Article XVIII [determination of the dispute by an expert to be nominated by the President for the time being of the International Gas Union]. After settlement of the dispute any amount agreed or otherwise determined to be due shall be paid within seven (7) days of such agreement or determination.
11. 9 In the event that Buyer fails to pay Seller pursuant to Article 11.5 the amount due and payable after fourteen (14) days from the due date for payment thereby, Seller may suspend delivery of Dry Gas until payment of such amount is received by Seller in full by giving Buyer seven (7) days’ notice in writing and the suspension shall take effect upon expiry of the said notice."
"19.1 Any dispute, controversy claim or disagreement arising out of or relating to this Agreement, or the breach, termination or invalidity thereof which cannot be resolved amicably by discussions between the parties, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules in force on the date hereof, provided however, that matters which this Agreement allows the parties to submit to an expert under Article XVIII (whether they are required to do so or not) shall not be subject to arbitration under this article XIX."
"2.2.1 Petronas will bill YTL according to the GSA;
2.2.2 TNB will pay YTL for the electricity taken based on the gas price of RM6.40/mmbtu to comply with the Government’s direction. This means that when the formula price of gas based on the GSA is higher that RM6.40/mmbtu, YTL will feel the pinch and be motivated to negotiate; and
2.2.3 The MECM will inform the Minister of the need for YTL to comply with the said decision. YTL's refusal to do so will be brought to the Prime Minister’s attention if necessary."
"(i) All parties were to implement the Cabinet’s decision which had fixed the price of gas for power generation at the rate of RM6.40/mmbtu with effect from 1 May 1997 to 31 December 2000. This means that the price of gas for power generation at Paka would also be fixed at RM6.40/mmbtu without YTL deriving the discount of RM 1.00.
(ii) The regularisation of all earlier payments made between TNB,YTL and Petronas must be carried out to reflect the Cabinet’s decision on the said gas price. The meeting agreed that TNB would immediately refund to Petronas all payment made to TNB amounting to RM64 million and Petronas would thereafter refund to YTL all payments over and above the price of gas as per the Cabinet’s decision and YTL would refund to TNB the excess payment for electricity if the electricity paid by TNB to YTL had incorporated the gas price which exceeded RM6.40/mmbtu.
(iii) The issue of whether the discount of RMl.0/mmbtu respecting gas to power generation in the East Coast of Peninsular Malaysia would be continued or not would be brought to the consideration of the Cabinet as soon as possible by the EPU. In the meantime Petronas and YTL are entitled to raise their respective stands immediately on the issue of the said discount to the EPU and the KTKM."
a. in regard to YTL's claim for restitution of the amount of the Paka Discount element of sums paid by it on the invoices delivered to it by Petronas since 1 April 2008:
(i) whether, on a true interpretation of Article X of the GSA, the effect of the departure by Petronas from the formula for determining the "Price" of dry gas supplied to Pasir Gudang under Article 10.1 was to deprive YTL of its entitlement to the Paka Discount under Article 10.9 ("the interpretation issue");
(ii) if not. whether YTL agreed at the meeting on 17 July 1999 that the issue as to its entitlement to the Paka Discount was to be decided by the Cabinet and that it would give effect to that decision ("the agreement issue");
(iii) if it did not so agree, whether YTL is barred by estoppel by reason of its conduct since 17 July 1999 from recovering the Paka Discount element of the sums paid by it on those invoices ("the estoppel issue").
Mr Abraham accepted that, if points (i) to (iii) were to be decided against Petronas, YTL was entitled to restitution of the Paka Discount element on those invoices (Transcript, 6 March, pp 15. 18).
b. in regard to YTL's claim for restitution of the sum paid by it to Petronas under protest on 3 December 2008, whether its claim to recover that sum is barred to any extent by limitation under section 6 of the Limitation Act 1953 ("the limitation issue").
Mr Abraham accepted that, if points (i) to (iii) were to be decided against Petronas, YTL was entitled to restitution of this sum also, subject only to his limitation argument (Transcript, 5 March, p 122).
c. whether Petronas is entitled to any relief under its Counterclaim ("the Counterclaim issue").
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