ICC Awards

Partial Award in Case 17508

'The parties and their representatives

1. The Claimant … is a company incorporated and existing under the laws of [a US state] ("the Claimant"). …

2. The Claimant is represented in this arbitration by …

3. The Respondent is … a company incorporated and existing under the laws of [a European country] ("the Respondent'). …

4. The Respondent was represented in this arbitration (until notice given by letter dated …) by …

5. By letter … from [the law firm representing the Respondent] to the ICC Secretariat, [that law firm] stated:

We hereby confirm, for the avoidance of doubt, that we have no instructions to act on behalf of [the Respondent] in respect of the above Arbitration.

In the circumstances, we would be grateful if we could be removed from the record and all future correspondence on this matter be sent directly to [the Respondent].

6. From the receipt of that letter the Respondent has been without legal representation in this arbitration; and all communications by me have been sent by post to the Respondent's registered address or to the email account provided by [the law firm that formerly represented it].

7. I was informed by [the law firm formerly representing the Respondent] that [the contact for the Respondent] was the chief executive of the Respondent.

The arbitration agreement and the applicable law agreement

8. Whether I have jurisdiction is the first point that I will determine in this Award. As set out in more detail below the Respondent has not participated in this arbitration. I will make my award on jurisdiction, including the arbitration agreement and applicable law agreement, below.

9. The terms of the Arbitration Agreement and applicable laws agreement that I will consider are set out in full further in this Award.

Procedural steps up to my appointment as Sole Arbitrator

10. The Claimant's Request for Arbitration sent to the ICC is dated … October 2010. In the Request for Arbitration, the Claimant proposed the appointment of a Sole Arbitrator. The Claimant contended that the matter in dispute was properly referred to arbitration under the ICC Rules and that under Article 6(1) of the ICC Rules presently in force these are the 1998 ICC Rules.

11. By a letter dated … November 2010 from the ICC Secretariat to the Respondent directly, the Respondent was notified of the Request for Arbitration; provided with a copy of the Request for Arbitration; and invited to file its Answer to the Request within 30 days from the day following the date of receipt of the letter. The Respondent was also invited to comment on the Claimant's proposal of a Sole Arbitrator.

12. By letter dated … December 2010 from … the Respondent's then legal representatives to the ICC Secretariat, the Respondent requested an extension for the filing of the Answer to … January 2011.

13. By letter dated … December 2010 the ICC Secretariat granted the Respondent an extension of time until … January 2011 to file its Answer.

14. The Respondent did not file an Answer and does not appear to have responded to any communication by email or post from the ICC Secretariat.

15. By letter dated … February 2011 to the Parties' legal representatives the ICC Secretariat informed the Parties that the ICC Court had decided … "That this arbitration shall proceed in accordance with Article 6(2) of the Rules".

Appointment as Sole Arbitrator

16. By letters dated … February 20011 to the parties legal representatives, the ICC Secretariat informed the parties that I … had been appointed as Sole Arbitrator … by the ICC Court pursuant to Article 9(3) of the Rules.

Procedural steps following my appointment as Sole Arbitrator

17. I have applied the ICC Rules 1998 in accordance with Article 6(1) of the Rules; it not having been contended by the parties that any other Rules applied.

18. [The law firm representing the Respondent] sent a letter to the ICC Secretariat dated … February 2011 stating that they had no instructions to act on behalf of the Respondent.

19. I sent all relevant correspondence to the Parties: (a) to the Claimant via its legal representatives …; and (b) to the Respondent direct to the Respondent by post and/or email …

20. Whilst I have received correspondence and communications from the Claimant's legal representatives I have received no communications at all from the Respondent; not even to acknowledge receipt of letters or emails.

21. I convened a Preliminary Meeting [in] March 2011. The Claimant attended by its legal representatives. The Respondent was given notice and did not attend.

22. At the Preliminary Meeting …:

(1) I drafted Terms of Reference. As the Respondent did not participate, the Terms of Reference required approval by the ICC Court under Article 18(3) of the Rules.

(2) I made Procedural Order No. 1, which incorporated a provisional timetable, that was to become operative and binding on the parties upon the approval of the Terms of Reference by the ICC Court; and gave general directions for the conduct of the arbitration.

23. Prior to being approved by the Court and following some minor modifications I revised the draft Terms of Reference. For the avoidance of any confusion I shall refer to these modified terms as "the draft Terms of Reference".

24. The draft Terms of Reference were sent by me to the parties by email ...

25. The draft Terms of Reference were signed by the Claimant … and by me ... The Respondent did not respond to my email and did not sign.

26. By letter … from the ICC Secretariat to the parties and to me, the Parties were informed that pursuant to Article 18(3) of the Rules … the ICC Court approved the draft Terms of Reference..

27. [In] June 2011 I made Procedural Order No.2. The purpose of that order was to vary the provisional timetable.

The Terms of Reference …

28. Paragraph 7 of the Terms of Reference … set out a summary of the dispute; a précis of the Claimant's case; and the relief sought by the Claimant. I will set out further in this Award the details of the Claimant's claim.

29. The Respondent filed no Answer; and filed no submissions. It gave no communication of its position in relation to the claims advanced against it. No objection to jurisdiction has been raised. No indication of any defence was provided to me.

The procedure adopted

30. The Procedural Orders provided for the service by the Respondent of its Defence and (if any) Counterclaim by … June 2011.

31. The Respondent did not serve its Defence by the stipulated time, or subsequently.

32. The Procedural Orders provided that: "if no Defence is served ... the Sole Arbitrator shall proceed to determine this dispute without a hearing, and on the basis of the documents and evidence filed by the parties at that time".

33. I therefore make this Award on the basis of documents and evidence filed, namely:

(1) The Request for Arbitration and attached documents. I had also directed that they stand as the Claimant's Statement of Claim.

(2) The witness statement of … and [related] exhibits ...

Closure of the Proceedings

34. I notified the Parties and the ICC Secretariat by email dated … August 2011 that in accordance with Article 22 of the Rules that I was satisfied that the parties had had reasonable opportunity to present their cases and I declared the Proceedings closed; and that no further submission could be made or evidence produced unless requested or authorised by me.

The claim and the issues in this arbitration

35. The following is a quotation of the précis of the Claimant's case (taken from the Terms of Reference, which in turn are taken in substance from the Request for Arbitration):

7.6 The Claimant is the owner of certain trademarks and service marks … (the "Marks") which are identified with hotels operated under such Marks. The Claimant also licenses a system which provides distinctive, high quality hotel service to the public using the Marks (the "System").

7.7 The Claimant franchises and licenses the use of the Marks and the System to third parties to use in the operation of their hotels. In return for such licence, the Claimant receives royalties and other fees.

7.8 Between September 1999 and March 2000 the Claimant entered into four contracts with [Company A] ("A") and three contracts with [Company B] ("[B]"), pursuant to which the Claimant agreed to grant use of the System and Marks at specified hotels in [the Respondent's country]. Copies of these seven franchise agreements (hereafter referred to as the "Agreements") have been provided with the Claimant's Request for Arbitration at Exhibits C-7 to C-13.

7.9 On 1 January 2009, a series of assignment agreements in respect of each of the seven contracts were entered into between the Claimant, [A] and [B] (together known as [C]) and the Respondent (in its previous name of [D]). The Claimant has provided copies of each of the seven assignment agreements (hereafter referred to as the "Assignments") with its Request for Arbitration at Exhibits C-14 to C-20.

7.10 Clause 2 of the Assignments provided: "Assignor hereby assigns all rights, interests and obligations in the Agreements to Assignee, whom hereby accepts the assignment of the Agreements and undertakes and covenants with Assignor and Licensor that it will perform all of the obligations of Assignor under the Agreements."

7.11 In return for the grant of the licence, clause 6.1 of the Agreements requires the payment to the Claimant of various fees, being:

(a) a royalty percentage of the gross rooms revenue (as defined);

(b) a marketing and reservation contribution;

(d) a reservations and operations system fee for the use of various technology and systems such as the … reservations system;

(e) fees due for travel agent commission programs or other programs sponsored by hotel marketing associations in relation to the hotel; and

(f) any amounts necessary to compensate for withholding tax.

7.12 Clause 6.5 of the Agreements provides that "failure to pay amounts when due shall constitute a breach of this Agreement".

7.13 The Claimant asserts that the Assignments operated to novate the Agreements as between the Claimant and the Respondent, and that, accordingly, as of 1 January 2009, the Respondent assumed all obligations under the Agreements, including the obligation to pay the fees due to the Claimant pursuant to clause 6.1.

7.14 Accordingly, invoices were sent regularly to the Respondent in respect of fees payable pursuant to clause 6.1 in respect of each of the Agreements. The Agreements came to an end on 30 June 2010 but the Claimant asserts that a number of these invoices remain outstanding.

7.15 The Claimant contends that the Respondent is in breach of its obligations under clause 6.1 of the Agreements as it has not made payment of the outstanding invoices.

7.16 The Claimant contends that the following sums are owing …

7.17 The Claimant seeks payment in full of the outstanding sums it claims to be owing in the amount of ...

7.18 The Claimant also claims interest on all amounts awarded, as appropriate. Clause 6.5 of the Agreements provides that overdue amounts shall accrue interest from the due date at the rate of one and one half percent (1.5%) per month ...

7.19 The Claimant also claims post-award interest on all amounts awarded ...

7.20 The Claimant also claims all costs incurred as a result of the Respondent's breaches of the Agreements, including but not limited to all legal fees incurred and the costs of arbitration (both the administrative fees of the ICC and the fees and expenses of the Arbitral Tribunal) ...

36. I am required to determine the issues necessary to resolve the claims or reliefs identified in the claim by the Claimant. In order to determine the claim the issues were identified in paragraph 10 of the Terms of Reference as follows:

10.1.1 Is there in existence an arbitration agreement under the ICC Rules; and does the Arbitrator have jurisdiction to make an award?

10.1.2 Is the Respondent under an obligation to pay the Claimant the fees referred to in clause 6.1 of the Agreements?

10.1.3 Is the Respondent in breach of the Agreements in failing to pay the amounts claimed to be outstanding?

10.1.4 Is the Respondent liable to pay the amounts claimed or any other amounts that the Arbitrator may determine?

10.1.5 Is interest payable and, if so, at what rate and for what period?

10.1.6 Should post-award interest be awarded and, if so, at what rate?

10.1.7 What are the costs of this Arbitration, who should pay them and in what proportion?

Issue 1: Is there in existence an arbitration agreement under the ICC Rules; and does the Arbitrator have jurisdiction to make an award?

37. I am satisfied that the Respondent has been properly notified of the arbitration by reason of the following:

(1) Prior to my appointment the Respondent instructed [a law firm] to communicate with the ICC Secretariat and request an extension of time for the service of an Answer; and then disinstructed them prior to my appointment.

(2) I have sent to the Respondent letters by post and sent communications by email. None have been returned as "undeliverable".

(3) I requested [counsel for the Claimant] to let me know whether they were in communication with the Respondent. In an email … to me and copied to relevant persons [counsel for the Claimant] stated:

we have had no communication directly from [the Respondent] since [the law firm representing it] ceased to act. We have sent a letter by fax and by post to [the Respondent], and we have also emailed [its chief executive]. We have to date received no response to any of our communications.

[Counsel to the Claimant] then set out the following;

it is clear to us that having instructed (and disinstructed) three separate sets of lawyers over the past few months, [the Respondent] is fully aware of this reference.

38. I was appointed on … February 2011 as Sole Arbitrator following a decision by the Court on … February 2011: "That this arbitration shall proceed in accordance with Article 6(2) of the Rules".

39. Article 6(2) of the Rules provides:

If the Respondent does not file an Answer, as provided by Article 5 ... the Court may decide, without prejudice to the admissibility or merits of the plea or pleas, that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may exist. In such a case, any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself. ...

40. Section 30 of the English Arbitration Act 1996 (competence of tribunal to rule on its own jurisdiction) provides:

(1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to -

(a) whether there is a valid arbitration agreement,

(b) whether the tribunal is properly constituted, and

41. I am entitled to (and required to) rule on whether I have substantive jurisdiction both by reason of Article 6(2) of the Rules and section 30 of the English Arbitration Act 1996.

42. I must therefore satisfy myself whether I have jurisdiction. If I have no jurisdiction I will decline to consider the substantive merits of the claim.

43. The Claimant's case in respect of the arbitration agreement is set out in paragraphs 14 to 20, 28 and 29 of the Request for Arbitration and noted in précis in paragraph 5 of the Terms of Reference:

5.1 The Claimant entered into four franchise agreements with [A] dated … September 1999, two franchise agreements with [B] dated … September 1999 and one franchise agreement with [B] dated … March 2000 (together, the "Franchise Agreements").

5.2 Each of the Franchise Agreements provided by clause 19.10 the following clause:

Binding Effect: Governing Law and Forum. This Agreement shall become valid when executed by Licensor and shall be governed by and construed under and in accordance with the internal laws of England without regard to its conflict of laws principles. The parties agree that any disputes arising in connection with this Agreement shall be finally settled by arbitration in London, United Kingdom under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, provided that such choice of forum shall not affect or impair:

19.10.1 Licensor's right to seek injunctive relief at any time in any jurisdiction; and

19.10.2 the right of either party to enforce any award of the above-mentioned arbitrators in the courts of any jurisdiction.

The official language of arbitration shall be English.

5.3 The Franchise Agreements were assigned/novated to the Respondent on 1 January 2009 (in circumstances set out in more detail below).

44. As the Respondent has not participated in this reference I will deal with each of the points referred to in section 30 of the Arbitration Act 1996.

(a) Is there a valid arbitration agreement?

(b) Is my appointment as Sole Arbitrator properly constituted?

45. Is there a valid arbitration agreement? From the documents and evidence I find the following facts:

(1) The Claimant was incorporated on [date] in the name of ….

(2) [The following year] the Claimant changed its name to …

(3) [Three years later] the Claimant changed its name to its current name …

(4) The Claimant … entered into seven "International Franchise Agreements":

a) dated … September 1999 with [A] - for a property [1] (exhibit C-7).

b) dated … September 1999 with [A] - for a property [2] (exhibit C-9).

c) dated … September 1999 with [A] - for a property [3] (exhibit C-10).

d) dated … September 1999 with [A] - for a property [4] (exhibit C-11).

e) dated … September 1999 with [B] - for a property [5] (exhibit C-8).

f) dated … September 1999 with [B] - for a property [6] (exhibit C-12).

g) dated … March 2000 with [B] - for a property [7] (exhibit C-13).

(collectively I will refer to these below as "the International Franchise Agreements").

(5) The International Franchisee Agreements are in substantially the same form and provided for the grant of a licence by the Claimant to [A]/[B] to use the Claimant's Trade Mark and operate hotels from the properties using the [X] brand.

(6) Each of the Agreements contained an arbitration clause in identical terms, clause 19.10:

19.10.1 Licensor's right to seek injunctive relief at any time in any jurisdiction; and

19.10.2 the right of either party to enforce any award of the above-mentioned arbitrators in the courts of any jurisdiction.

The official language of arbitration shall be English.

46. I am satisfied that clause 19.10 of the International Franchise Agreements is an arbitration agreement as between (1) the Claimant and (2) [A]/[B].

47. I am satisfied that the Respondent was not an original party to the International Franchise Agreements.

48. The Claimant's case as to how the Respondent is bound by clause 19.10 of the International Franchise Agreements is set out in paragraphs 17 to 20 of the Request for Arbitration:

17. On 1 January 2009, a series of assignment agreements in respect of each of the seven contracts were entered into between [the Claimant] as "Licensor", [C] as "Assignor" and [D] as "Assignee". Copies of each of the seven assignment agreements (hereafter referred to as the "Assignments") are attached to this Request for Arbitration at Exhibits C-14 to C-20.

18. Each of the Assignments recorded that the original parties of [A] and [B] were now known as [C], who wished to assign the Agreements to its newly created subsidiary, [D]. As set out above, [D] was a previous name of the Respondent.

19. Clause 2 of the Assignments provided: "Assignor hereby assigns all rights, interests and obligations in the Agreements to Assignee, who hereby accepts the assignment of the Agreements and undertakes and covenants with Assignor and Licensor that it will perform all of the obligations of Assignor under the Agreements."

20. As such, the Assignments effectively operated to novate the Agreements as between [the Claimant] and the Respondent. Accordingly, as of 1 January 2009, the Respondent assumed all obligations under the Agreements, including the obligation to pay the fees due to [the Claimant] pursuant to clause 6.1.

21. Invoices were sent regularly to the Respondent in respect of fees payable pursuant to clause 6.1 in respect of each of the Agreements. A number of these invoices, however, remain outstanding.

49. From the documents and evidence I find the following facts:

(1) The Respondent was incorporated on [date] under the name [D].

(2) The Respondent changed its name as follows:

a) [The following year] the Respondent changed its name to ...

b) [The following year] the Respondent changed its name to its current name, …

(3) On 1 January 2009 the Claimant … entered into a series of documents (7 in total) headed "Assignment Agreements" in respect of each of the International Franchise Agreements (exhibits C14 to C20).

(4) The parties to each of the Assignment Agreements were:

a) The Claimant, described as "Licensor".

b) [B], described as "Assignor"

c) The Respondent … described as "Assignee".

(5) The Assignment Agreements are in substantially the same form.

(6) Each of the Assignment Agreements:

a) refers in its recital to a specific International Franchisee Agreement (being one of the seven International Franchise Agreements);

b) identifies in the recital where appropriate [A] (as a prior name of [C]) or [B] (as another prior name of [C]);

c) includes the following further recitals:

C. Assignor has informed Licensor of the creation of a subsidiary of Assignor ("Assignee")

D. From the creation of Assignee, Assignor made a contribution in kind of the Hotel assets into the Assignee. Following this transaction, Assignee became the owner of the Hotel.

E. Assignor has therefore requested that the Agreement be assigned to the Assignee.

F. Licensor has been provided with legal documentation evidencing (1) the incorporation of Assignee and (2) the Assignor's Hotel asset contribution.

F. Following satisfactory review of the documentation listed in F above, Licensor has agreed to the assignment of the Agreements from Assignor to Assignee.

H. The parties to this Assignment Agreement now wish to confirm the assignment of the Agreement in a written document.

(7) Each of the Assignment Agreements further provides:

1. The term of this Assignment Agreement starts effective as from 1 January 2009.

2. Assignor hereby assigns all rights interest and obligations in the Agreements to Assignee, whom hereby accepts the assignment of the Agreements and undertakes and covenants with Assignor and Licensor that it will perform all the obligations of Assignor under the Agreements.

50. It is a well-established principle of English law that an assignment, properly so-called, causes rights to be transferred to a party other than the parties to the original contract, but not future performance obligations.

51. The proper approach to interpretation and effect of the Assignment Agreements is to construe the intention of the parties from the documents and the factual matrix.

52. I find that notwithstanding that the agreements are headed "Assignment Agreements" they were not intended by the 3 parties, namely (1) the Claimant; (2) [C]; and (3) the Respondent) to be merely assignments but to novate each of the International Franchise Agreements to the Claimant and the Respondent with effect from 1 January 2009 and to impose direct obligations on the Claimant and the Respondent in the terms of each of the International Franchise Agreements. In coming to:

(1) The factual background set out in the recitals in the Assignment Agreements, in particular the setting up of the Respondent by the Assignor; and the transfer of ownership of the Hotels to the Respondent;

(2) The fact that the Respondent was a party and signatory to the Assignment Agreements. In mere assignment typically it is not necessary for the assignee to be a party to an assignment;

(3) The fact that the Respondent expressly undertook direct obligations to the Claimant by clause 2; and

(4) That the Respondent operated the Hotels thereafter under the Claimant's Trade Marks.

53. The effect of the Assignment Agreements (to which the Respondent was a party and signatory) was to make the International Franchise Agreements directly enforceable with direct rights and obligations between the Claimant and the Respondent including the application of clause 19.10, the arbitration agreement.

54. To consider the Assignment Agreements as not creating directly enforceable rights and obligations between the Claimant and the Respondent would flout business common sense.

55. I therefore conclude:

(1) That there was an arbitration agreement between the Claimant and the Respondent in terms of clause 19.10 (as set out above).

(2) That the applicable law to the arbitration is English law.

56. Was the Sole Arbitrator properly appointed in accordance with the ICC Rules of Arbitration 1998? The arbitration agreement expressly provides for an institutional arbitration under the ICC Rules. As set out above in this Award, my appointment was in accordance with the ICC Rules, properly reserving the issue of jurisdiction for me to determine.

57. I conclude that my appointment is properly constituted.

58. What matters have been submitted to arbitration in accordance with the arbitration agreement? The Terms of Reference set out in paragraph 7 the matters that have been submitted in accordance with the arbitration agreement are the claim for unpaid invoices totalling [amount] plus interest and costs. The claim falls within the scope of the arbitration agreement.

Issue 2: Is the Respondent under an obligation to pay the Claimant the fees referred to in clause 6.1 of the Agreements?

59. For the reasons set out in the immediately above section of this Award (issue 1) I conclude that the Respondent was under a direct obligation to pay to the Claimant fees referred to in clause 6.1 of the International Franchisee Agreements. Clause 6.1 is an extensive provision and is summarised in paragraph 15 of the Terms of Reference (5 May 2011) as follows:

15. .... in return for the grant of the licence, clause 6.1 of the Agreements requires the payment to [the Claimant] of various fees, being:

(a) a royalty percentage of the gross rooms revenue (as defined);

(b) a marketing and reservation contribution;

(d) a reservations and operations system fee for the use of various technology and systems such the … reservations system;

(e) fees due for travel agent commission programs or other programs sponsored by hotel marketing associations in relation to the hotel; and

(f) any amounts necessary to compensate for withholding tax.

Issue 3: Is the Respondent in breach of the Agreements in failing to pay the amounts claimed to be outstanding?

60. Clause 6.5 of the International Franchise Agreements provides:

6.5. ... Each payment under this section shall be accompanied by the monthly statement referred 10 in Section 11.1 below. Licensor may apply any amounts received under this Article to any amounts due under this Article. Failure to pay amounts when due shall constitute a breach of this Agreement and overdue amounts shall accrue interest from the due date at one and one half percent (1½%) per month but not in any case to exceed the maximum interest permitted by applicable law.

61. The claim by the Claimant is that the invoices totalling [amount] are outstanding and unpaid. I have had no evidence from the Respondent challenging the correctness of the invoices or disputing them.

62. At paragraph 23 of the Request for the Arbitration the Claimant sets out the amounts due and explains the amount in respect of each and verifies the same by exhibiting the invoices at exhibits C21 to C27 and that these have not been paid.

63. I find that the non-payment of the invoices totalling [amount] to be a breach by the Respondent of the International Franchise Agreements.

Issue 4: Is the Respondent liable to pay the amounts claimed or any other amounts that the Arbitrator may determine?

64. The amount claimed in the Request for Arbitration is [amount]. I find for the Claimant in this sum.

65. Attached to the witness statement of [the witness] is [an exhibit in which the witness] states "since the Request for Arbitration was submitted to the ICC further small payments have become due and owing to the Claimant from the Respondent".

66. No request has been made by the Claimant to amend the claim or request for arbitration. I make no criticism of the Claimant for that, as there may well have been issues as to whether the additional invoices properly fall within the Request for Arbitration. For the avoidance of doubt I do not consider the additional invoices as falling within the Terms of Reference and therefore do not find for the Claimant in respect of the additional invoices.

Issue 5: Is interest payable and, if so, at what rate and for what period?

67. Clause 6.5 of the International Franchise Agreement provides for interest on overdue sums at 1.5% per month.

68. The interest entitlement is contractual and I also have power to award interest under section 49 of the English Arbitration Act 1996.

69. The Claimant is entitled to payment of the invoices by the Respondent and interest thereon. I award simple interest to the Claimant at 1.5% per month from the due date to the date of the Award.

70. In paragraph 6 of his witness statement [the witness] on behalf of the Claimant has calculated the interest at the contract rate from due dates up to 8 April 2011. The calculations are supported by [sic] in detail in respect of each hotel (which relates to each of the 7 International Franchise Agreements) in exhibits [1 to 8]

71. However, the interest calculated by [the witness] includes interest in respect of additional invoices (exhibited at [exhibit 8]) which do not form part of this claim; and do not form part of this Award. I accept [the witness]'s calculation of interest to 8 April 2011, subject to deducting the interest on invoices on exhibit [8]. The additional invoices are clearly identifiable in the schedules of interest calculations and easily adjusted.

72. I therefore assess the interest to 8 April 2011 as follows …

73. [The witness] calculates the daily rate from 9 April 2011 the total sum [sic] at [amount] per day. I accept that as being broadly correct, but it slightly overstates the amounts as it includes interest on the disallowed invoices ([exhibit 8]) which total [amount].

74. On my calculation I add interest (on the principal sum of [amount]) for the period 9 April 2011 to the date of this Award … as follows: 167 days at 1.5% simple (annual rate of 18%) = [amount]

75. I therefore calculate the interest to the date of the Award in as being:

[amount] + [amount] = [amount].

76. I award interest to the date of this Award in the sum of [amount].

Issue 6: Should post-award interest be awarded and, if so, at what rate?

77. Section 49 of the English Arbitration Act 1996 provides:

(4) The tribunal may award simple or compound interest from the date of the award (or any later date) until payment, at such rates and with such rests as it considers meets the justice of the case, on the outstanding amount of any award (including any award of interest under subsection (3) and any award as to costs).

78. The Claimant has been kept out of its money. I award simple interest at the contractual rate of 1.5% per month post award until payment. The post-award interest shall be applied on the principal amount of the Award, namely [amount].

Award

79. I make this partial award, reserving the following matters for a further final award:

(1) The determination of the costs of the Arbitration (including the parties costs and the costs of Arbitrator and ICC);

(2) Who should pay the costs and in what proportion?

80. In due course I will give directions as to the submissions that I require following the issue of this Award to the parties.

81. I award, declare and direct that:

(1) I have jurisdiction to hear and determine the dispute referred to arbitration by the Claimant's Request for Arbitration ...

(2) The Respondent shall forthwith pay to the Claimant the sum of [amount].

(3) The Respondent shall forthwith pay to the Claimant interest to the date of this Award in the sum [amount].

(4) The Respondent shall pay simple interest at 1.5% per month on the principal sum of [amount] post-Award until payment.'

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