“(a) CONTRACTOR acknowledges that a delay in completion of the WORK will cause damage to COMPANY, the amount of such damage being difficult to calculate with great precision. Therefore if any UNIT OF WORK has not achieved MECHANICAL COMPLETION on or before the relevant COMPLETION DATES, and may be extended pursuant to Article 3.5 CONTRACTOR shall pay COMPANY liquidated damages for each full calendar day of delay from 30 calendar days after the COMPLETION DATE until MECHANICAL COMPLETION in respect of each UNIT OF WORK is actually achieved, in the following per diem amounts: UNIT OF WORK PER DIEM AMOUNT CCR Platformer Complex US$ 90,000 New 66kV/12kV Substation US$ 15,000 (b) Any such liquidated damages may be recovered by COMPANY against the irrevocable performance bank guarantee provided by CONTRACTOR in accordance with Article 7.4 hereof or by taking credit against payments otherwise due to CONTRACTOR, or by some other method mutually agreed. (c) In the event that CONTRACTOR does not attain the COMPLETION DATE set for each UNIT OF WORK then as the remedy for late completion COMPANY shall recover liquidated damages from CONTRACTOR at the applicable per diem amounts for each day until completion is attained as evidenced by MECHANICAL COMPLETION for each UNIT OF WORK, up to a maximum liability of ten percent (10%) of the CONTRACT PRICE.”
“The following summaries of the claims of the Parties, and of the relief sought by each Party, are not intended to be exhaustive but are intended to satisfy the requirements of Article 23(1) of the ICC Rules and are subject to Article 23(4). The parties’ respective cases will be set out in appropriate detail in such pleadings or memorials as may be provided for by agreement of the parties or by order of the Arbitral Tribunal.”
“In so far as may be relevant [Petrotrin] reserves the right to contend that it is entitled to rely upon the provisions of the Linkage Agreement made between the Claimant, the Respondent and [SECL] on15 December 2006 and/or the Offshore Agreement made between the Respondent and [SECL] on15 December 2006 .”
“The Claimant’s case on the cap 18.11 The Claimant deals with this issue in its Reply and Defence to Counterclaim at paragraphs 188-192, in Section 13 of its Closing Submissions, and in Section 13 of its Responsive Closing Submissions. It argues that the provisions of Article 5.2-5.3 of the Linkage Agreement can be effective only where a claim is made for liquidated damages and is referred to arbitration in respect of both Contracts, between the parties to both Contracts, and under the Linkage Agreement between the parties to the Linkage Agreement. However the present dispute and this arbitration arise only under the provisions of the Onshore Agreement, and concern only the parties to the Onshore Agreement. The provisions of the Onshore Agreement apply exclusively. Hence, the limit on the liquidated damages is defined in Article 3.6(c) of the Onshore Contract, and is 10% of the Contract Price of that Onshore Agreement. Petrotrin construes Article 5.2 of the Linkage Agreement in a manner which contradicts the provisions of both the Onshore and Offshore Contracts instead of in a manner which is consistent with them. The Respondent’s case on the cap 18.12 Petrotrin deals with the cap on liquidated damages In its Counterclaim at paragraph 15.1, in its Reply to Defence to Counterclaim at paragraph 94, and in its Closing Submissions at Section 13. It says that, given the way in which the agreements were set up, it should not be a matter of surprise that there is a contradiction to be resolved by reliance on Article 10 of the Linkage Agreement. It characterizes the Claimant’s argument as relying only on a jurisdictional point, namely, that the matter referred to arbitration by the Claimant is purportedly brought pursuant to the Onshore Contract alone. However, Petrotrin has validly brought its counterclaim under all three agreements: Onshore, Offshore and Linkage: see paragraph 16 of the Terms of Reference, paragraph 2.1 of the Respondent’s Statement of Case and Counterclaim and paragraph 94 of the Reply to the Defence to Counterclaim. Moreover, even if Petrotrin were jurisdictionally confined to a counterclaim under the Onshore Contract, Articles 2 and 3 of the Linkage Agreement require the Tribunal to treat the Onshore and Offshore Contracts as a single contract, and the Linkage Agreement at Article 5.2 overrides and amends the cap. As to practicalities, the Respondent observes that the On and Offshore Contracts both have the same Mechanical Completion date and in reality the counterclaim spans both the On and Offshore Contracts in that the work which was late was carried out under both Contracts.”
“The Tribunal’s decision on the cap 18.13 The Tribunal’s understanding of the Claimant’s position differs from the Respondent’s submission. The Tribunal understands the Claimant to rely on both a construction argument and a jurisdiction argument. 18.14 As regards jurisdiction, while it is right to say that in paragraph 16 of the Terms of Reference the Respondent reserved the right to contend that it was entitled to rely upon provisions of the Linkage Agreement, in paragraph 17 of the Terms of Reference the relevant Arbitration Agreement was identified as being contained in Article 33 of the Onshore Agreement. This reflects paragraph 3 of the Request for Arbitration which states: Although there is a network of inert-related [sic, means ‘inter related’] agreements which have a bearing on the disputes which the Claimant required to be referred to arbitration under the International Chamber of Commerce (ICC) Rules for Arbitration, 2012 edition, this Request for Arbitration is made pursuant to Article 33.4 of the On-shore Agreement … … 18.15 Moreover, paragraph 2.1 of the Respondent’s Statement of Case and Counterclaim and paragraph 94 of the Reply to the Defence to Counterclaim do not show that Petrotrin has brought its counterclaim under any agreement other than the Onshore Agreement. 18.16 In the Tribunal’s view it is plain that its jurisdiction in the present arbitration arises from Article 33.4 of the Onshore Agreement, and is limited thereby. Accordingly it is the provisions of the Onshore Agreement that govern the position. 18.17 As regards the question of construction, we accept the Claimant’s submission that a construction which interprets the three agreements as consistent with one another is to be preferred to a construction which regards them as being in conflict. The conflict relied on by the Respondent, which the Respondent resolves by reliance on the precedence of the Linkage Agreement over the other two Contracts, only arises from reading clause 5.2 of the Linkage Agreement in the way that the Respondent proposes. Clause 5.2 does not in our view require to be read as being in conflict with clause 3.6(c) of the Onshore Agreement; it can be read as a long-stop limit for the aggregate of liquidated damages under all three agreements, which sits above the lower cap applicable under a single agreement. We acknowledge the Respondent’s argument that as a matter of practicality it could never apply, but, even if that were so, this would not change our view, since there is nothing unusual in provisions being inserted in contracts out of an abundance of caution. 18.18 Accordingly, we determine that the cap on liquidated damages is 10% of the Contract Price under the Onshore Contract.”
“67. - Challenging the award: substantive jurisdiction. (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court— (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction. (3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order— (a) confirm the award, (b) vary the award, or (c) set aside the award in whole or in part. (4) The leave of the court is required for any appeal from a decision of the court under this section.” (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court— (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction. (3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order— (a) confirm the award, (b) vary the award, or (c) set aside the award in whole or in part. (4) The leave of the court is required for any appeal from a decision of the court under this section.”
“The effects of clause 4.1 inter alia for the purposes of Article 10 of the ICC rules of arbitration, is that in the event of Petrotrin having to issue a Request for Arbitration against SECL, all of the claims in that arbitration will be made under the same arbitration agreement as the instant arbitration. Further and in the alternative if (it is denied) the claims in the arbitrations are made under more than one arbitration agreement, the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship and the arbitration agreements compatible. Such arbitrations will be consolidated.” (Emphasis supplied)
“104. Drawing this line of authorities together, the following relevant principles can be derived: a) the exercise of determining whether a dispute falls within an arbitration clause is one of interpretation requiring a careful and commercially-minded construction. It is a question of determining objectively the intention of the parties as revealed by the agreement or agreements; b) in construing an arbitration clause, a broad and purposive construction should be followed; c) in general, parties to an arbitration agreement do not intend that disputes under that agreement should be determined by different tribunals (“the Fiona Trust presumption”). This presumption may apply where there are multiple related agreements between the parties. If there are inconsistent arbitration agreements, it may be necessary to identify where the centre of gravity lies and which agreement lies at the commercial centre of the transaction (or is closer to the claim), or under which series of agreements the dispute essentially arises. It is the arbitration agreement in that agreement that will cover all issues. Fragmentation may of course occur if, on its true construction, the clear wording and inherent scheme leads to that conclusion; d) the Fiona Trust presumption may not apply where there are two or more agreements with separate and distinct arbitration clauses addressing parallel but different aspects of the overall continuing relationship between the parties. A dispute rising under one contract would not be intended to be caught by an arbitration clause in another contract. But I do not accept C's broader submission that the Fiona Trust presumption does not apply where the overall contractual arrangements between two parties contain two or more differently expressed choices of jurisdiction in respect of different agreements. The position is more subtle, as a proper reading of AmTrust reveals; and e) where there is an agreement subsequently entered into by the parties for the purpose of terminating the commercial relationship created by an earlier agreement, the Fiona Trust presumption may apply with particular potency.” a) the exercise of determining whether a dispute falls within an arbitration clause is one of interpretation requiring a careful and commercially-minded construction. It is a question of determining objectively the intention of the parties as revealed by the agreement or agreements; b) in construing an arbitration clause, a broad and purposive construction should be followed; c) in general, parties to an arbitration agreement do not intend that disputes under that agreement should be determined by different tribunals (“the Fiona Trust presumption”). This presumption may apply where there are multiple related agreements between the parties. If there are inconsistent arbitration agreements, it may be necessary to identify where the centre of gravity lies and which agreement lies at the commercial centre of the transaction (or is closer to the claim), or under which series of agreements the dispute essentially arises. It is the arbitration agreement in that agreement that will cover all issues. Fragmentation may of course occur if, on its true construction, the clear wording and inherent scheme leads to that conclusion; d) the Fiona Trust presumption may not apply where there are two or more agreements with separate and distinct arbitration clauses addressing parallel but different aspects of the overall continuing relationship between the parties. A dispute rising under one contract would not be intended to be caught by an arbitration clause in another contract. But I do not accept C's broader submission that the Fiona Trust presumption does not apply where the overall contractual arrangements between two parties contain two or more differently expressed choices of jurisdiction in respect of different agreements. The position is more subtle, as a proper reading of AmTrust reveals; and e) where there is an agreement subsequently entered into by the parties for the purpose of terminating the commercial relationship created by an earlier agreement, the Fiona Trust presumption may apply with particular potency.”