'The Obligation for Investments is set forth in Clauses 6.1 to 6.3.

6.1. The Buyer agrees that at least the following investments will be made in the business of the Company (the Investments): US dollars fifty-five ($ 55,000,000) million within 6 years from the Date of Closing of which (i) at least US dollars twenty-five ($ 25,000,000) million will be invested within 3 years from the Date of Closing, and (ii) at least US dollars twenty-five ($ 25,000,000) million of the Investments will be invested in fixed assets and/or capital expenditure relating to the business of the Company of which at least US dollars ten ($ 10,000,000) million will be invested within three years of the Date of Closing. The parties agree that such Investments can be made by the Company directly or by the Buyer into either the Company or another Subsidiary of the Buyer that is engaged in the business of the Company. The Buyer's current intentions with respect to the nature and timing of the foregoing investments is set forth in Exhibit J.

6.2. The Buyer shall cause the Company to submit to the Seller within three months following the end of each fiscal year a statement regarding the Investments effected during such fiscal year (the Investment Declaration) including a statement of (i) the changes in fixed assets referring to each fiscal year and (ii) the changes in working capital (that is, increases in inventory and receivables) referring to each such fiscal year. The Buyer shall cause the Company to deliver promptly to the Seller such further information as the Seller may reasonably require to verify the accuracy of the statements referred to above, and shall cause the Company to afford the Seller and/or its representatives such access to the records and facilities of the Company or its Affiliates as may be necessary in connection with such verification. Unless Seller shall object in writing, specifying in reasonable detail the basis for its objection, (which objection Buyer may submit to arbitration under Clause 15) within 60 days of receipt of the Investment Declaration, the Buyer shall be deemed to have made the Investments specified in the Investments Declaration and to have satisfied its obligations under Clause 6.1 to the extent of such Investments. Any and all information made available by the Company to the Seller or its appointees shall be treated as confidential and the provisions of Clause 5.4 above shall also apply to the above statement of the Company and to any and all information obtained during the verification of such statement.

6.3. In case the Buyer shall fail to observe its obligation for investments, it shall be obliged to pay to the Seller as penalty a sum equal to the difference between the value of the Investments carried out and those which the Buyer has undertaken to implement hereunder.

........

5. The Claimant does not dispute the Respondent-cum-Counterclaimant's obligation with respect to an investment of USD 10 million in fixed assets and/or capital expenditure. But the Claimant alleges that the Respondent breached this obligation in that it invested only USD 5,211,458 and was, therefore, liable under Clause 6.3 to pay a penalty equal to the shortfall, i.e. USD 4,788,542. We shall refer to this item as "claim item I".

6. The Claimant further argues that the Buyer was obliged to invest USD 25 million in the Company's net working capital and that it breached that obligation. The Claimant argues that, since the Company's net working capital decreased during the relevant time period by USD 20,120,000, the Respondent was liable under Clause 6.3 SPA to pay a penalty of USD 45,120,000. We shall refer to this item as "claim item II".

7. The resolution of the dispute regarding claim item I requires, firstly, a determination of the meaning of the terms "fixed assets"/"capital expenditure" and, secondly, an accounting exercise.

8. The resolution of the dispute over claim item II is primarily a matter of interpreting the relevant terms of the SPA in a broader context and, depending on the outcome of that legal analysis, a matter of fact, i.e. again accurate accounting.

………

3. Claim item I

………

16. … for the Arbitral Tribunal to reach a conclusion as to whether the alleged shortfall that would trigger the penalty in fact does exist both understanding of the meaning of the terms "fixed assets" and "capital expenditure", as used by the Parties and in the party-appointed expert's report …, and the calculation of the alleged shortfall's amount are required.

17. The expert's general premises are …:

- "[A]s investment in Fixed Assets, we shall accept any proven purchase of new fixed assets and any improvement or addition which increases the productive capacity and the actual value of already existing equipment."

- "Investment we consider and the capital expenditure realized for the transfer, installation and function of the actual fixed asset with the expectation to increase the productivity or reduce the cost."

- Conversely, the party-appointed expert does "not consider investment any maintenance or repair realized for preserving the initial state or potentiality of the existing fixed asset" [emphasis added];

- And, in the same vein, he does "not consider investment the placing of spare parts owing to wear and tear".

The expert submits that, in ascertaining the investment made, he followed audit procedures and standards of the Institute of Certified Auditors Accountants in [State X] and international auditing standards.

18. The majority of the Tribunal notes that practice and academic writing offer a slightly wider or more nuanced spectrum of the relevant definitions so as to allow for margins of interpretation. For example, one standard source defines "fixed assets" as "tangible property used in the operation of a business, but not expected to be consumed or to be converted into cash in the ordinary course of events (plant, machinery, equipment, furniture, fixtures, leasehold improvements" (J. Downes, J.E. Goodman, Dictionary of Finance and Investment Terms, 5th ed., New York: Barron's, 1998, p. 210).

The same source defines "capital expenditure" as "outlay of money to acquire or improve capital assets such as buildings and machinery" (ibidem, at p. 79.)

19. Authoritative authors cited by the Claimant … also shed more light on the case at hand:

Expenditures for improvements, sometimes called betterments or capital expenditures, make an asset perform better than before. Such expenditures may increase the asset's life or reduce its operating cost or increase its rate of output. Because the expenditure improves the asset's service potential, accounting treats such an expenditure as an asset acquisition. The firm has acquired new future benefits. When the firm makes the expenditure, it can debit a new asset account or the existing asset account. (C.P. Stickney, R.L. Weil, Financial Accounting, 8th ed., Fort Worth/Philadelphia etc.: Dryden Press, p. 476)

The last sentence of the quotation makes it clear that, while there are rules and standards (subject to margins of assessment and interpretation changing in time, as well as academic discussion), there are also book-keeping related choices and habits aimed at furthering the general and principal objectives, i.e. depicting a business's economic situation in a way that guarantees clarity, momentaneous verifyability and continuity of analysis.

20. Two clarifications are in order. The first one relates to the meaning of "betterment" or "improvement" and, in that connection, whether the expert's general rejection to take "any maintenance or repair realized for preserving the initial state or potentiality" of existing assets into account ought to be followed. Before 2005, International Accounting Standard (IAS) 16 referred, for the purposes of distinguishing "capital expenditure" and "operational expenditure", to whether there was an improvement as compared to the originally envisaged use of the asset. The new IFRS-IAS 16 did away with that criterion. Instead, it refers - as it does with components of an asset - to commercial judgment (IAS 16.9, 16.13). In line with that approach, the IFRS-IAS distinguish between "normal" or "routine" maintenance and small repair (IAS 16.12), on the one hand, and "general" check-ups and re-building repairs (IAS 16.14). The latter qualify as capital expenditure. Paul J. Heuser, Carsten Theile, IFRS Handbuch - Einzel- und Konzernabschluss, 3rd ed., Köln: Verlag Dr. Otto Schmidt, 2007, p. 144 et seq.; John S. Hughes, Frances L. Ayres, Robert E. Hoskin, Financial Accounting, Hoboken, NJ: Wiley, 2005, p. 278 (on US-GAAP).

Even if the asset's value (or useful life or expected productivity) is not increased in comparison to the point in time when it was first acquired but in comparison to the point in time prior to carrying out the measure whose nature as "improvement" is under examination, accounting characterizes that as capital expenditure. In response to the - at first sight challenging - argument that the standard adopted in 2005 may not be relevant for this case, the majority of the Tribunal submits, firstly, that the obligations arising from the SPA straddle the years 1999 to 2002 and 2005, secondly, that accounting standards are continuously evolving best-practice benchmarks which are initially followed by a few, then ever more companies before eventually being adopted by the standard-setting body and, in certain cases, legislators, thirdly, that the transaction before us involved businessmen from a variety of countries and sectors which entails that, although the applicable law is undoubtedly [that of State X] …, what may be considered business "usage" assumes a broader, de-localised meaning in the transnational context. The second clarification to be made concerns the situations standard accountancy terminology, on the one hand, and use of accountancy language in a takeover transaction, on the other hand, address. This transpires where the distinguished authors cited by the Claimant say, at the same page, one paragraph further up:

Because these expenditures [i.e. repairs] restore ... benefits to originally estimated levels, accounting treats such expenditures as expenses of the period when the firm makes the expenditure. In practice, distinguishing repairs from maintenance is difficult. Because expenditures for both become immediate expenses, accountants need not devote energy to distinguish them.

The repair policy a firm adopts will affect the depreciation rate for its assets.

This quotation shows, firstly, that how repairs and maintenance are treated in accountancy depends on the policy a company adopts and, secondly, that the source quoted does not distinguish between ordinary and major repairs. The quotation, moreover, reflects the continuity-over-periods perspective, where originally estimated levels, individual company policies as well as tax implications feature prominently, if not exclusively. Conversely, in the case at hand the Contract's language is drafted in the watershed situation of a business being handed over to a new owner who, rather than approaching expenditures against the background of having made historical investments for which he follows applicable depreciation rules, is confronted with the need for massive asset- and operation-related expenditures across the board. Saddling an agreement concluded in view of that "zero-hour" situation ex post with an overly narrow and static interpretation not even required under - but only convenient for - accounting theory would in the majority's view upset the principles of interpretation according to [State X law].

21. We shall now proceed to analyse, on an item-by-item basis, those items not accepted by the claimant-appointed expert as fixed assets/capital expenditure and determine whether and, if so, why we believe - or the majority believes - they ought to be characterized as such. The Arbitral Tribunal is guided by the universally accepted principle that, ordinarily, each party has the burden to prove all the material facts that are the basis of that party's case. This places, generally speaking, the burden of proof as regards the non-performance of the Respondent's contractual obligations on the Claimant. The standard of proof, i.e. the answer to the question whether the Tribunal may conclude to be reasonably convinced of the asserted facts, is however influenced by, firstly, the intensity and the quality of the opponent's contesting those facts in a sufficiently substantiated manner and, secondly, the opponent's control of relevant evidence. Cfr. Principle 21 ALI/UNIDROIT Principles of Transnational Civil Procedure, Cambridge: Cambridge University Press, 2006.

As regards the latter, not all conceivable and possibly effective probative efforts have been deployed by the Respondent, cfr. also infra, paras. 26 and 29.

22. …: "Building partial roof damps insulation" … Roof damp insulation is an addition. It increases the asset's useful life and reduces its operating cost.

23. … "Fire protection for warehouses" … is an improvement and potentially increases the asset's life. The same logic which induces the expert to accept the upgrading that avoided purchase of a new cylinder ... must apply here.

24. … "Replacement of old economizer on the boiler at … plant" … 'Purchase of Grooved Roll for machine No. 9 in replacement of existing roll' … and "Purchase of spare driving gear wheels for drying drums of paper" … These are major spare parts which - unlike ordinary ones used for consumption (IAS 16.8) -, following the component approach, are capitalized as was the aforementioned purchase of a new cylinder. In all cases, the result is new-for-old equipment, improvement of efficiency, increase of the asset's life, reduction of operating costs, potentially also increase of rate of output. At the Hearing, the Chairman of the Tribunal drew the expert's attention to these, as he saw it, inherent inconsistencies and somewhat blurred dividing lines of text-book accounting theory as compared to evolving standards. The expert however asserted his view that his criteria were "science based on logic" …

25. … "Purchase of spare parts for the repair of the vacuum pump" …; "Purchase of spare parts for the packing machine" …; "Purchase of spare parts and installation machine …" … In all three cases crucial pieces of equipment (fixed assets) were improved and their service potential was in all likelihood enhanced and extended in time. Moreover, in the absence of any indications to the contrary these spare parts would appear to fall into the category of "major" ones (cfr. supra paras. 20, 24). At the Hearing, the party-appointed expert answered the Chairman's question as to the circumstances in which spare parts had to be considered fixed assets:

In circumstances where the spare parts concern fixed assets … If these items are followed under separate accounts under the current assets along with their consumption and wearing out, and as long as they provide to the machinery useful life beyond the expected one, only then in this circumstance can they be considered as additional increase to the asset …

The majority of the Tribunal concurs and draws the conclusion that the expenses had to be accepted.

26. … The party-appointed expert contests the characterization of a great number of spare parts … as relating to fixed assets. Since no figures are given nor any supporting documentation was attached and referred to by either party, it is assumed that the reference is to the account shown in the Company's attachment to the Investment Declaration … In that document, the account designated "Spare Parts" is sub-divided into "Spare Parts (Fixed Assets)" and "Spare Parts (Expenses)". The former shows a total of …, the latter a total of … The expert's non-acceptance of the grand total at first sight may appear whole-sale. However, he did examine the stock by viewing and pointing to samples that clearly do neither qualify as "major" spare parts nor are they prima facie related to fixed assets. Following the rule regarding burden and standard of proof set forth supra para. 21 the Tribunal notes that, since alleged yet scarcely documented expenses were contested in a clearly more substantiated fashion, this would have been an instance where it was for the Respondent to provide further explanation and evidence so as to comply with its part in the process leading to the Tribunal's reasonable conviction. For these reasons we concur with the expert's opinion and exclude those items.

27. … "Fall of value of land acquisition cost owing to alienation for the … construction" …; and "owing to alienation of a plot" … The Buyer's contractual undertaking to invest certain amounts does not include a covenant to freeze the Company's assets or an obligation to maintain its "value" (subjective value? market value? book value?) at any given point in time. Also, as was discussed taking an example of plant modernization …, investment in either fixed assets or capital expenditure are not alternatives that lead necessarily both to "additions". Rather, they may be communicating glass tubes in that effected capital expenditure results in a reduction of fixed assets. Indeed, as is well known, companies with heavy investments in research and development tend to have higher market-to-book ratios than comparable companies which invest in physical assets (John S. Hughes, Frances L. Ayres, Robert E. Hoskin, op. cit., p. 286 et seq.).

More generally, investment does neither necessarily lead to increased value of assets nor does … increased value equal increased assets or working capital - on the contrary. The general proposition that, under the contract, the Buyer was not obliged to refrain from any dispositions of assets holds true even more where external factors … rather than its free business judgement conditioned management's choices, as was apparently the case in this instance.

28. … For the same reasons, the Tribunal does not concur with the Claimant's expert that objectively decreased value of buildings … is to be taken into account as a negative post and to be deducted from additions.

29. Since, as we pointed out supra para. 27, "capital expenditure" is a much broader and less precise term than "fixed assets" - encompassing e.g. development, (not research) in accordance with IAS 38.59 or IAS 38.20 - Paul J. Heuser, Carsten Theile, op. cit., p. 126 et seq. (who also stress that whether such investments are capitalized depends on company-specific policy considerations; only 50% of companies in certain jurisdictions do capitalize them), we cannot exclude that the Buyer actually met or even surpassed its investment commitments. However, whereas for the reporting procedure under Clause 6.2 the Buyer's declaration was sufficient, in this arbitration proceeding the Respondent was clearly in a better position than the Claimant, who has now - unlike during the ongoing Clause 6.2 procedures - no means to verify investment statements, to supply tangible and verifiable evidence … that would have substantiated its plausible, yet contested assessment of the facts. One would have expected the Respondent to do so rather than conducting its defence in line with the simplest and most basic of burden-of-proof principles.

………

4. Claim item II

31. As to the promised volume of Investment, the Respondent maintains that it invested USD 73,650,000 and, more specifically, USD 53,500,000 as capital increase and USD 20,150,000 as shareholders' loans. The Claimant, on whom the burden of proof rests, contests that the latter qualify as Investment in the sense of Clause 6.1. The Claimant does not contest that there was a capital increase in the amount indicated by the Respondent (as would, indeed, be impossible given that such capital increase must be ascertainable from public records). The Claimant does not contest, moreover, that the Company's working capital (inventory and receivables) increased during the relevant period by USD 28 million, albeit pointing out that liabilities increased in an amount exceeding that figure and that, consequently, the net working capital had decreased …

32. The thrust of the Claimant's argument is that the Respondent did not live up to a commitment to invest at least USD 25 million in working capital and that failure to do so constituted a breach of the Respondent's obligation under Clause 6. Indeed, both written submissions and the claimant-appointed expert's report … as well as oral testimony were exclusively focused on the issue as to whether sufficient investments were made in working capital. The Arbitral Tribunal's task is, therefore, primarily one of interpreting the SPA's content and precise meaning in this respect. The Claimant's contention that "[the auditor] reconfirmed that his reading of Article 6 of the Agreement established a two-fold obligation of the Buyer for Investments in Fixed Assets/Capital expenditure and Investments in Working Capital" … runs idle. The interpretation of this contract is a matter of law and legal method. The party-appointed expert himself identifies the very reason why his testimony on this point is of no assistance when he states: "I operate as an economist and based on my experience after 33, 34 years of practice in this profession this is what guides me and what I base my opinion on. … So when we [sic] say 55 million we [sic] mean investment in working capital and fixed assets; there is nothing else to be meant by this amount or this phrase" … The reason is that what "we" (i.e. either he personally or his profession) "mean" is based on long experience as accountant, i.e. assumed general accounting standards. The Tribunal's task, on the contrary, is to interpret one specific contract, to wit this concrete share purchase agreement entered into by these parties.

33. Examining first of all the plain language of Clause 6.1, it is apparent that the term "working capital" is not used. While it is not correct to say, as the Respondent does …, that the wording of the provision gives the Buyer full freedom and discretion regarding the form of investments, it is equally true that no reference to working capital or any other constituent element of that term other than fixed assets and capital expenditure is made.

34. As regards the context of the Clause entitled "Obligations for Investments", each sub-clause has its specific role: 6.1 spells out the definition and the specifications as to types and envisaged magnitude of investment, time frames and sources. 6.2 prescribes the procedure and the content regarding reporting (Investment Declaration) and verification. 6.3 sets forth the consequences in case of the Buyer's failure to abide by the agreement. It is true that the three sub-clauses constitute an organic whole and have to be read together. … However, the fact that only Clause 6.1 addresses the specifics of the substantive undertaking whereas Clause 6.2 is specifically designed to hold the Buyer accountable cannot be denied. Only in the latter, the accountability-securing rule, do we find a reference to the concept of working capital. The Investment Declaration must include a statement of "changes" (as opposed to the investment as such) and only "increases in inventory and receivables" have to be declared (although, as the Claimant's expert pointed out, supra para. 31, those items alone do not reflect the true measure of investments in working capital).

35. As regards a systematic interpretation, the Claimant suggests … to look to the Seller's, in the Claimant's view, similar obligation under Clause 2.1.14 (as amended) to ensure identified levels of working capital prior to the transfer of the Company's shares. The Claimant correctly assumes that the Seller's interests mirrored the Buyer's interest in this respect. However, since that other provision explicitly and elaborately does make reference to the (defined) term "Net Working Capital", the absence of any such reference from Clause 6.1 opens the way to the argumentum e contrario.

36. Seeking guidance in our endeavour to look beyond the plain language and the provision in its systematic context, we now turn to [the provisions of State X law] where the fundamental principles for the interpretation of all contracts are enshrined

… When interpreting a declaration of will the true intention shall be sought without sticking to (the literal meaning of) the words.

…Contracts shall be interpreted according to the requirements of good faith taking also into consideration business usages. …

Both provisions do not pose difficulties in applying them because they are part of the time-honoured common heritage of the legal family to which [State X] private law belongs. Apart from details in doctrinal discussion which have no bearing on our case, three characteristics have to be underscored. First, "true intention" is a reference to the so-called objective or normative meaning: the addressee of a declaration of will must actively seek to understand the other party's declaration "correctly", i.e. in a way an objective and reasonable third party would understand it. The higher the degree of sophistication of the parties and their expertise the higher the standard of objectivity the judge or arbitrator may legitimately impose on them. Second, the party formulating a declaration of will must exercise care so as to make himself understood. It follows that expectations or hopes a party may have harboured but which were not communicated are irrelevant. Third, all relevant circumstances that accompany, condition and frame the mutual declarations have to be taken into account. Prior contracts and dealings, negotiations, the declaring party's intentions provided they were known, special terminology, usages, place, time and social or professional setting etc. … merit to be mentioned. In the contractual situation, i.e. the meeting of both parties' declaration of will, the trade or business usages as well as the overarching duty to negotiate and perform in good faith assume primary importance. Cfr also supra, para. 20.

37. In establishing the starting point for the Tribunal's applying the foregoing, the Parties' legitimate interests and expectations are relevant, but only to the extent that they were made known to the other side. Moreover, if the Claimant's formulation … were to suggest that [the Seller]'s interests had - for whatever reason - to be preponderant we would need to reject that notion. Both Parties' interests must be given equal weight. The task before us is not difficult: the Seller's interest was to sell an underperforming … and overstaffed state-owned company at the highest possible price and with as many safeguards as it was able to extract from the preferred bidder in terms of maintaining levels of industrial activity, modernization and competitiveness, employment, regional development and "growth". … "Modernization", "competitiveness" and, ultimately, "growth" are, however, cloaks of many colours. The Buyer would doubtless subscribe to those objectives attaching to them at least in part quite a different meaning and starting, firstly, from the premise - confirmed in the SPA … ( that the Company was highly indebted …and overstaffed. Secondly, profitability of the Company (but also of the group as a whole) were obvious objectives in this (absolutely mainstream) leveraged buy-out by private equity of a hitherto state-owned enterprise. … As is equally common knowledge, this type of acquisition yields extraordinary results precisely due to the acquirer's taking advantage of a favourable price, a wide variety of seller-backed incentives, sometimes hidden or overt subsidies as well as the greatest flexibility in funding post-sale operation and reconstruction. These parameters and objectives as well as certain constraints and contingencies shaped the negotiation process that produced the contract we are called upon to interpret.

38. The Claimant accepts that, under the general doctrines guiding the interpretation of declarations of will and contracts, the history of the negotiations is of significant importance … Along with the insight provided by … testimony the ascertained genesis of the relevant Clause 6.1 is the clearest evidence as to the Parties' respective initial objectives, the tug-of-war negotiation process and the final outcome.

39. The drafting history of the clause is well documented. On 16 October 1998, the Seller's adviser … sent an "issues list" to the Buyer's adviser … which states the [State X] Government's desire to obtain a "business plan"/"investment schedule" from the Buyer … Under point 23, Clause 6.1 is mentioned as "commitment to USD 25 million must be for 3 years". On 19 October, the Buyer's adviser expressed surprise and provided a proposed version of Clause 6.1 that closely resembled the final text except for the specific ten-million-dollars undertaking … On 30 October, the Seller's adviser sent their proposal in the form of a mark-up version of the SPA to the Buyer's adviser … where in Clause 6.1 reference to "Net Working Capital" is made for the purposes calculating investments. Apparently the Buyer did not accept this proposal as is evidenced by the fact that, on 5 November 1998, the Seller's adviser informed its counterpart that "you will note that a number of significant concessions have been made" and "The Seller agrees to the deletion of the 'working capital' investment language" … That deletion is again reflected in the Buyer's last draft sent the Seller on 7 December 1998 …, the last but one draft on record in this proceeding. A final mark-up submitted on 14 December by the Seller … seems to have taken out the clause.

40. Finally, the question as to whether Exhibit J, the document entitled "Investment Plan Summary" and referred to in Clause 6.1, imposes a different result needs to be answered. The concluding sentence in Clause 6.1 reads "The Buyer's current intentions with respect to the nature and timing of the foregoing investments is [sic] set forth in Exhibit J." On the other hand, that document opens stating "The …Consortium intends to raise the actual level of production at …significantly … Our investment plan is primarily focused on achieving this objective." While there is no doubt that this plan is integral part of the Parties' overall understanding, it is equally clear that it was excorporated from the body of the SPA where it would, indeed, be in open contrast with the Parties' agreement that no language referring to "working capital" was capable of finding the Buyer's consent. It is incorrect to say, as the Claimant does …, that the Seller had, at the time of signing, "a totally different picture and idea about what Investment was supposed to occur". The Seller consciously conceded that the term "working capital" be relegated to an appendix. Moreover, the texture of unity of the documents would appear to be loosened already on its face. The referenced overall investment amounts as well as the time periods are different. Furthermore, the Investment Plan Summary itself indicates in the words chosen and in its composition that it is not "hard contract law" but something different. There are declarations of intent (e.g. "investment in state-of-the-art equipment in the near term"; "upgrading of equipment and refurbishment of facilities would begin immediately upon closing"; "critical that we immediately establish the appropriate levels of raw materials and inventory"; "[t]he upgrading and refurbishment expenditure is projected to be at an average annual rate of $ 2 million"). But there are, at the same time, words of cautioning, contingencies and conditionals ("… must develop export markets"; "essential that … manufacturing costs be as low as possible"; "we have estimated"; "we believe"; "… has suffered from underinvestment"; "timing of investment in building and new equipment is dependent on the securing of the appropriate licenses"). And, turning again to the text of Clause 6.1 as such, the use of the word "current" to qualify the noun "intention" is noteworthy. In the considered opinion of the majority of the Tribunal, the adjective cannot have any other purpose but opening up, in favour of the declaring party, the possibility to change its intentions at any future point in time. In summing up, Exhibit J would at the very most (and not dissimilar from so-called "soft" letters of intent in other commercial law contexts) - be characterized as a best effort undertaking but not a promise capable of giving rise to a claim.

41. The drafting history suggests that the plain language (supra, para. 33) reflects the outcome of a give-and-take negotiation where both Parties obtained and made concessions … and where the wording of the clause as it currently stands - i.e. an investment undertaking without any reference to the concept of "working capital" - is the final result of a fierce and conscious bargaining in which the Buyer's interests prevailed on this point. One may even go as far as suggesting that combining the language of Clause 6.1 with the vehicle of Exhibit J reflects the acceptance, on the part of both Parties, that there be some ambiguity - both, obviously, hoping that no dispute would arise or, if it were to arise, that the tribunal seised of the matter would decide in their favour or, at least, find a way to make the other side "share the damage". However, the Tribunal does not see a normative basis for such "corrective" action. Also, even if the Contract or the law gave us authorization to embark on such venture we would have no criterion to measure how the "damage" ought to be "shared". The Parties did not wish to give us the power to act as amiable compositeur or to decide ex aequo et bono (cfr. Terms of Reference Section VII 3 …). Moreover, on another point of the bargain the Seller's interest may have prevailed yet we do not know on which one - a state of ignorance which cautions against "filling gaps" or "reducing ambiguity" lest we might break a delicate equilibrium. Both Parties being sophisticated organizations with significant in-house resources and having been expertly advised by first-rate local and international law firms there is, obviously, no question of unequal bargaining power or other factual situation where an adjudicator can legitimately intervene ex post. The Arbitral Tribunal cannot re-write the Parties' contract. Interpreting contracts guided by the principle of good faith … does not mean a licence for us to release a party from its promise to perform the contract as it was concluded, nor are we allowed to impose duties and obligations on a party which the other party was unable to have included in the course of their negotiations. In a situation such as the one at hand party autonomy only is the guarantee for "just" or, better, "correct" content of the contract. It must stand and be performed as agreed upon when it was signed.

42. Having determined that, in the Majority's considered opinion, the contract undoubtedly did not oblige the Buyer to make investments in any specific form other than fixed assets and/or capital expenditure, we do not have to enquire into any details regarding investments in working capital.