'A. Applicable rules of construction of the Consultancy Agreements

1. It is appropriate first to outline the applicable rules for the construction and interpretation of contracts, to be applied in the present arbitral proceeding.

2. It was accepted in the Terms of Reference (Art. 8.1) that, since the seat of arbitration is Geneva, one of the Parties is not domiciled in Switzerland, and the Parties did not expressly exclude its application, the Swiss Private International Law Act (1989) ("PILA") applies. Art. 178(2) PILA provides that:

As regards its substance, an arbitration agreement is valid if it conforms either to the law chosen by the Parties, or to the law governing the subject matter of the dispute, in particular the law governing the main contract, or if it conforms to Swiss law.

3. Swiss jurisprudence makes clear that this provision governs also the issue as to who is subject to the agreement to arbitrate. (ATF 117 II 94, at consideration 5(b) and ATF 129 III 727 at consideration 5.3.1).

4. The Respondent accepts that under Art. 178(2) the arbitration clause will establish jurisdiction over the Respondent ratione personae, if that was the true intention of the Parties established under either Delaware law (being the law governing the Consultancy Agreements) or Swiss law.

5. The Respondent also accepts that the integration clause in each of the Consultancy Agreements (clause 10.2) does not, under either Swiss or Delaware law, preclude the Arbitral Tribunal from considering extrinsic evidence for the purpose of interpreting the disputed contractual provisions, if they are found to be ambiguous.

6. The Claimant has not sought to rely on Swiss law in order to establish the Arbitral Tribunal's jurisdiction over the Respondent. On the issue of jurisdiction, the Arbitral Tribunal therefore starts its analysis under the provisions of Delaware law as presented by the Parties and discussed in the following paragraphs of this Section ... If that is sufficient to conclude that the Respondent entered into the Consultancy Agreements as a Party to such Agreements and hence to the arbitration clause in each such Agreement, then it will not be necessary also to analyze the situation under Swiss law.

The parol evidence rule

7. It is common ground that in construing or interpreting the Consultancy Agreements under the law of Delaware, the parol evidence rule shall be applied. Normally, the clear meaning of a contract will govern its construction and interpretation, when the text of the contract establishes unambiguously and objectively what the parties reasonably understood to be the terms of their agreement. Only when a tribunal finds that there is ambiguity in the construction or text of the disputed terms of the contract, i.e. the provisions "are reasonably or fairly susceptible of different meaning…" may extrinsic evidence be introduced to clarify the proper meaning to be given to such provisions. The Premcor Refining Group, Inc. et al. v. Matrix Services Industrial Contractors, Inc. et al. (Del Supr. Ct, 07C-01-094-JOH, RL 3) and the cases cited therein; see also, Citadel Holdings v. Roven, 603 A.2d 818, 822 (D. Supr .1992) and Maria Healthcare, Inc. v. Coral SR LLC (Del.Ch. 2007, Case No. 2513-N).

8. As noted ... above ..., in the course of its decision to hold an oral hearing of the Respondent's Applications, the Arbitral Tribunal concluded that the Consultancy Agreements were ambiguous as to whether the Respondent signed those Agreements as agent or otherwise. Accordingly, the Arbitral Tribunal has considered the extrinsic evidence submitted by each of the Parties, both documentary and testimonial, as well as their respective submissions as to such evidence in order to clarify the ambiguity.

9. The Arbitral Tribunal has analyzed in particular the mutually intended rights and obligations of the Respondent under the terms of the Consultancy Agreements, objectively established, to determine whether Respondent signed such Agreements as a party, being fully bound itself by the arbitration clause, as Claimant asserts, or solely in the capacity of agent to the Associated Company, as Respondent asserts.

The rule of contra proferentem

10. Claimant asserts that, under the law of Delaware, one of the fundamental principles of contract interpretation is found in the rule of contra proferentem, which requires any ambiguous provisions of a contract to be construed against the party which drafted the contract. In this case it is accepted that the Consultancy Agreements were drafted by the Respondent (or its predecessor in the [Respondent] group). The Claimant's assertion is not contested that the text of such Agreements were presented to the Claimant as effectively a "take it or leave it" situation, with no negotiation of the terms, other than the commercial aspects, being practically speaking possible for any consultant of the [Respondent] group, including the Claimant.

11. The Claimant's Delaware Counsel, referring to Restatement (Second) Contracts s. 206, asserted that courts applying Delaware law will generally enforce the contra proferentem rule in cases of standardized contracts. They argued that such rule should be applied in the present case to establish that the Parties had not agreed that the Respondent would enter into the Consultancy Agreements solely in the capacity as agent for the Associated Company. However, in its pre-hearing submissions, the Claimant acknowledged that it would only be necessary for the Arbitral Tribunal to construe the Consultancy Agreements against the drafter (i.e. the Respondent) in the event that it had concluded that the capacity of the Respondent was still unclear after consideration of the extrinsic evidence.

12. The Respondent argues that the rule of contra proferentem is the very lowest in the hierarchy of principles of contract interpretation under the law of Delaware, and should not be used in place of the paramount rule that where possible all terms of the contract should be given effect. (citing E.I. du Pont de Nemours and Company, Inc. v. Shell Oil Company, (Del. 498 A.2d 1108, holding that the rule of contra proferentem will not be applied if a problem in construction can be resolved by applying more favoured rules of construction.)

The Arbitral Tribunal's findings regarding the applicable rules of construction

13. The Arbitral Tribunal finds, applying the Delaware law described above, that in construing and interpreting the Consultancy Agreements, it should first consider the terms of the Agreements themselves. To the extent that there are ambiguities in such terms themselves, the extrinsic evidence submitted by the Parties, including both witness testimony and documents, is to be considered in accordance with the parol evidence rule as it is incorporated in Delaware law, as described above. If that extrinsic evidence does not resolve the ambiguities, then the rule of contra proferentem can be applied.'