“11. This is a complex dispute. The Agreement runs to 218 pages and cross-references nearly 60 lengthy formal and informal schedules, the "compressed" version of which fills three volumes. The parties’ pleadings, including Annexes, ran to almost 4000 pages. The tribunal received written witness statements from no fewer than 60 fact witnesses, often two and sometimes three per witness, and principal and reply expert reports from 8 expert witnesses, supplemented by joint reports from pairs of experts. The parties also delivered extensive written and oral opening and closing submissions. During the course of 8 weeks of hearing, the tribunal heard live testimony from over 50 of the factual witnesses and all 8 expert witnesses. In addition, there were several procedural hearings conducted before the final hearing, together with two days at the end devoted to oral closing argument. 12. The evidence presented to the tribunal covered almost every aspect of the interactions between the parties over a period of more than three years. Despite its complexity, however, the many points in contention turn on three principal issues: (a) Was [Y’s] termination of the…Agreement lawful? (b) If the termination was lawful, what are the financial consequences of a lawful termination by [Y]? (c) If the termination was not lawful, what are the financial consequences of [Y’s] repudiation of the…Agreement?”
"…notwithstanding the termination, the parties operated the Exit Management provisions under the Agreement, although [Z] reserved its position as to [Y’s] entitlement to do so. In summary [Y] asked certain assets…to be transferred to it."
“714…by calculating the percentage of [Z’s] costs incurred on the whole project that had been recovered and applying the unrecovered percentage to the cost of the assets transferred to [Y]. Thus [Z] maintains that it incurred costs totalling£413,021,490 . It has been paid£141,598,315 and has therefore recovered 34.3% of its costs; 65.7% are unrecovered. 715. [A witness] lists the assets included in the Asset Register and the costs allocated to those assets…He identifies the sum of£191,753,736 as attributable to the assets that were…transferred. As he explains, the assets comprise not merely hardware, software and such like, but "[a]ll of [Z’s] cost base (and its subcontractor costs) [that were] involved (directly or indirectly) in the provision of these Assets. 716. On the basis that the cost of the transferred assets is£191,753,736 and [Z] has recovered 34.3% of these costs through payments from Y, the remaining balance, 65.7% of£191,753,736 , results in [Z’s] claim of£126,013,801 … 717. It is therefore apparent that [Z] has not followed the contractual route to arrive at Unrecovered Costs and there is reason to believe that sum claimed would not approximate with the Unrecovered Costs, calculated in accordance with Agreement.”
“The state of the evidence is not satisfactory; in particular, there is considerable uncertainty as to the sums which had already been paid in relation to the transferred Assets. However since the tribunal is attempting to assess the value of the unjust enrichment, it can only proceed on the basis of the cost to [Z] of producing the relevant assets, les the sums paid. In this connection the costs forecast by the RFM is strictly irrelevant. Nevertheless the tribunal notes two matters: (a) It is common ground the payment structure under the Agreement was "sculpted” so that [Z] would be operating at a loss during the earlier part of the project. It is therefore to be expected that the costs [Z] incurred would not be matched by the payments made under the Agreement by the Authority…” (a) It is common ground the payment structure under the Agreement was "sculpted” so that [Z] would be operating at a loss during the earlier part of the project. It is therefore to be expected that the costs [Z] incurred would not be matched by the payments made under the Agreement by the Authority…”
“(1) A party to arbitral proceedings may…apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award… (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant— …(d) failure by the tribunal to deal with all the issues that were put to it; (3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may— (a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.”
“3.1 the legal consequences of the fact that [Z] did not comply with the contract provisions, as it was required by the [Agreement] to do, in order to be entitled to contend that failure to achieve contractual Milestones was other than the sole responsibility of [Z]…and 3.2 although it is common ground that the Tribunal had to judge the reasonableness and proportionality of the termination for cause pursuant to Clause 69.1.2(i) the tribunal failed to make any assessment of the nature and seriousness of any relevant Default(s) on the part of [Z] which prima facie entitled a termination for cause, in order to consider whether, in light of the same, it was objectively reasonable and proportionate to terminate the Agreement.”
“[Z’s] updated expectation loss claim [A1] ignores the fixed-price nature of the Agreement and is based upon unsupported an unstated assumptions. Instead of attempting to properly assess the position it would have been in if termination had not occurred, [Z] simply claims all its costs on a global basis (whether recoverable under the Agreement or not) and an assumed level of profit. [Z] justifies its approach on the entirely unrealistic assumption that [Y] was responsible for the preponderance of "delays and problems" encountered and that these were the sole cause of [Z’s] failure to achieve the profit that it had hoped for." (h) In Appendix E, Y addressed the quantum of Z’s Counterclaim in some detail. At Paragraph 16, it addresses Z’s A1 Claim asserting that it was a "global claim" about which there were legal objections which they had addressed in Appendix C which dealt with delay (C Paragraph 16.4 and 16.5). At Paragraph 16.7 Y says that the claim "makes no attempt to take into account the history of the performance of the parties prior to termination, does not attempt to assess any losses allegedly caused by any individual [Y] breaches but instead makes a global claim". It is clear that, in relation to Claim A1 at least, Y was challenging the quantum based on cost on grounds which included that it was objectionable on the basis that it was a global claim, which amongst other things, included costs which were attributable to Z’s own failings. (i) In Appendix E, Y addressed the Claim A3 for unjust enrichment saying that it was unjustified as being "either legally misconceived or unsupported by the evidence" and "an attempt…to avoid the consequences of the negotiated terms of the Agreement it freely entered into”