'I. Introduction

1. This arbitration is conducted under the auspices and supervision of the ICC International Court of Arbitration. ...

a) Parties to arbitration

2. The Claimant is [a company from a country in the Pacific].

3. Claimant is represented in this arbitration by …

4. The Respondents are [two companies from a country in the Middle East]

5. Respondents are represented in this arbitration by ...

6. Claimant and Respondents are hereinafter also referred to individually as the "Party" and collectively as the "Parties".

b) Contract

7. On August 20, 2006, First Respondent and Claimant signed the Contract … -"Turnkey Contract for design, construction, supply and commissioning of a multipurpose support vessel with duplex dynamic positioning system", hereinafter "Contract".

c) Alleged novation

8. It is alleged by Respondents that on April 21, 2007, First Respondent, Second Respondent and Claimant signed a Tripartite Assignment Agreement (hereinafter "Alleged Tripartite Agreement"), transferring all rights, duties, obligations and entitlements of First Respondent to Second Respondent, consisting in a novation of the Contract. Claimant, however, denies the validity of the Alleged Tripartite Agreement, and denies that any such novation occurred.

d) Arbitration clause

9. The present arbitration proceeding was commenced in accordance with Article 34.2 of the Contract:

34.2. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said rules. The arbitration shall be conducted in Geneva, Switzerland, in the English language.

e) Submission Agreement of 12/05/2008 - Claimant's Exhibit C2 - conferring jurisdiction to decide disputes arising out of alleged novation

10. Further to the Arbitration clause, the Parties jointly executed a Submission Agreement on 12 May 2008, providing that "all disputes between [Claimant] and [Second Respondent] will be finally settled in the Arbitration", and thereby conferring jurisdiction upon this Arbitral Tribunal (appointed as set out below) to decide the issues as to the validity and effect of the Alleged Tripartite Agreement.

f) Summary of Parties' assertions as to the facts/disputes arising

f.1) Claimant's Request for Arbitration, filed February 15, 2008

11. In 2006, the Parties negotiated and signed the Contract regarding the conversion of a pre-existing hull into a DP2-equipped vessel by Claimant for First Respondent. Article 2.1 of the Contract provided that the vessel was to be designed and sold on the basis of general technical specifications, which included drawings, diagrams and plans for the vessel.

12. The Parties agreed that First Respondent could request alterations or modifications to the technical specifications, but any such changes were to be negotiated by the Parties and were subject to additional remuneration and possible extension of the delivery date.

13. During the course of Claimant's work, First Respondent requested a number of changes to the vessel, but refused to negotiate with Claimant regarding any additional remuneration or extension of time for delivery. [Claimant] fulfilled the requests in good faith and in mitigation of the obvious delays and other damage which would have been occasioned by a cessation of its efforts. As a result, [First Respondent] forced [Claimant] to bear the cost and time impact of the additional work, in clear violation of the Contract.

14. In the last months of 2007, Claimant was surprised by the receipt of a notice (given by a letter from [a bank], the issuer of certain guarantees which secured First Respondent's rights to Claimant's performance under the Contract) that Second Respondent had replaced First Respondent as Claimant's counterparty to the Contract pursuant to the Alleged Tripartite Agreement. However, Claimant did not have any record of having signed the Alleged Tripartite Agreement because the Alleged Tripartite Agreement was signed on behalf of Claimant by a former employee of Claimant with no authority to bind the company in any way.

15. Claimant contacted First Respondent challenging the validity of the alleged novation of the Contract, and received the answer that the Alleged Tripartite Agreement was signed by Claimant and was therefore valid. Claimant also discovered that Second Respondent was contacting Claimant's suppliers and sub-contractors trying to induce them to breach their contract with Claimant. Claimant investigated and discovered that First Respondent had transferred its assets, liabilities and business activities to Second Respondent and was no longer trading. Claimant then notified First Respondent of the repudiation and termination of the Contract.

16. Claimant asserts itself as the true owner of the vessel under construction, despite Respondents' assertion to the contrary. Claimant requests an award declaring it to be the rightful owner of the vessel and all of its equipment; declaring the Contract terminated; and declaring [Claimant] discharged of any further obligations it might have had under the Contract. [Claimant] further requests that [First Respondent] and its successors be found liable for numerous breaches of the Contract and be ordered to pay [Claimant] no less than [amount] in damages.

f.2) Respondents' Answer to Request for Arbitration, filed May 19, 2008

17. Respondents are controlled by [parent company]. In January 2007, First Respondent transferred its assets and liabilities to Second Respondent following an internal reorganization of the … Group.

18. The Alleged Tripartite Agreement was signed on behalf of Claimant by Mr [A], who was either duly authorized by Claimant (because there was an official power of attorney granting those powers) or had the apparent authority (as he was Claimant's project manager). Moreover, he had always been Claimant's key contact with First Respondent, and was held out as taking all significant decisions on its behalf. Alternatively, if Mr [A] did not have actual or apparent authority, Claimant ratified the Alleged Tripartite Agreement (by letter of October 13, 2007).

19. After some preliminary discussions, Claimant proposed a price for the Contract of [amount]. However, as First Respondent requested an extension of work, the price was increased to [amount] payable in 07 instalments, each of which was due in accordance with certain payment milestones under the Contract. This price encompassed all the costs and expenses that Claimant might incur until the delivery of the vessel and issuance of a final acceptance certificate by Respondents.

20. Immediately after the execution of the Contract, Claimant and First Respondent signed a Bill of Sale whereby the ownership of the vessel's hull passed to First Respondent. In the following months, First Respondent paid 04 instalments of the price to Claimant, in the total amount of … or 65% of the global price for the Contract.

21. Claimant failed to fulfil several of its obligations under the Contract. Respondents questioned the delays on the construction, and Claimant justified them on the basis of alterations to the technical specifications, requested by Respondents. Respondents sent a consolidated note rejecting Claimant's request for additional works and alleged Claimant's breach of Contract.

22. In January 2008, the Parties sent each other termination notices: Claimant sent it on the grounds that First Respondent was dissolved and Second Respondent based its notice on Claimant's failure to remedy the breaches of Contract.

23. Since October 2007 the construction of the vessel has been in abeyance and Second Respondent has been attempting to resume construction of the vessel and minimise its loss and damage.

24. Regarding the claimed additional works, some of them were taken into account during the negotiation of the Contract and have been accounted for by an uplift in the global Contract price. Regarding the other additional works, Respondents believe that Claimant is claiming payment for works that have not actually been performed. Respondents say Claimant alone should bear the costs relating to any extra work for which it is claiming, and should be liable for any damages which Claimant's unilateral decisions may have caused.

25. The Contract provides that even minor alterations should be agreed in writing, through the execution of a formal amendment. However, at no stage did the Parties formalise any agreement in writing, as Claimant acknowledges in the Request for Arbitration.

26. Furthermore, Claimant's allegation that Respondents refused to negotiate with Claimant, and had no intention of complying with its obligations under the Contract, is denied by Respondents.

27. Concerning the ownership of the vessel, it is not correct to presume that Claimant, as a project manager, should be entitled to ownership of the vessel. Moreover, Respondents have already paid 04 instalments tor the construction of the vessel, and have the Bill of Sale relating to the hull.

28. Pursuant to Articles 19.1 and 19.2 of the Contract, the delivery of the Bill of Sale upon payment of the first instalment would transfer legal ownership of the hull to Respondents. Pursuant to Article 19.9, the delivery of the completed vessel would transfer the legal and beneficial title to the vessel to Respondents, in addition to the previous transfer of the title in the hull and equipment.

29. Once the Contract was terminated prior to completion of the construction of the vessel, the provisions of Article 19.9 took effect immediately.

30. Respondents request the Arbitral Tribunal to order the bifurcation of this arbitration, so as to enable a partial award on the ownership of the vessel to be rendered before a decision on the claim regarding indemnification for the alleged breaches of the Contract.

31. Request for relief: Respondents request the Arbitral Tribunal to award declarations that (i) Claimant is bound by the terms of the Contract, (ii) the Alleged Tripartite Agreement is valid and enforceable, (iii) Second Respondent has replaced First Respondent under the Contract and (iv) the Alleged Tripartite Agreement extinguished all claims that Claimant may have against First Respondent. Respondents also request orders that (i) the claims made against First Respondent in the revised Request for Arbitration be dismissed; and (ii) Claimant pay all of Respondents' legal fees and disbursements of and incidental to these proceedings.

f.3) Respondents' Counterclaim, filed May 19, 2008

32. Respondents argue that Claimant breached the following provisions of the Contract: Articles 2.3, 2.4 and 2.12 (by failing to comply with requirements of the classification authority), Article 5 (by failing to meet the delivery date of the vessel), Article 2.4 and Article 7 (by preventing Counterclaimants' representative in Brazil from participating in meetings with subcontractors to discuss technical issues), Article 8 (by performing various alterations and modifications to the Technical Specifications of the vessel without Counterclaimants' approval or despite Counterclaimant's express refusal): Article 10 (by not providing in a timely manner, or providing altered versions of, progress charts/reports to Counterclaimants), Article 11 (by not complying with quality control standards of relevant equipment and material), Article 2.3 (by failing to install equipment/material for which [First Respondent] has paid), Article 2.12, Articles 3 and 16 (by failing to pay many of the suppliers and subcontractors), Articles 2.10 and 29.1 (by not submitting for the Counterclaimant's approval names of and changes of details for many of the subcontractors and equipment suppliers, specifically in relation to the shipyard chosen by Claimant), Article 24.1 (by not providing all vessel-related drawings, diagrams, plans, specifications and descriptions for the Respondents' review and approval prior to forwarding to the classification authority and, thereafter, upon approval by the classification authority).

33. The vessel to be constructed by Claimant was needed by Respondents to be involved in the … Project. The non-delivery of the vessel on the contractual delivery date caused Respondents to incur costs, expenses and loss of profit by reason of having to procure/convert an alternative vessel to perform their obligations under the … Project. Claimant should pay liquidated damages in the amount of …(Article 6.1 of the Contract) and indemnify Counterclaimants in respect of the profit that they would have made but have lost due to Claimant's breaches of Contract, and for the costs and expenses incurred by Respondents in procuring/converting another vessel to perform their obligations under … Project.

34. The Technical Specifications described in the Contract were agreed by the Parties during the Contract negotiations, and were reflected in the lump sum price of [amount]; any alterations to such Technical Specifications should have been completed by the signing of formal Amendments to the Contract by both Parties; the unilateral alterations made by Claimant (without approval or against the express refusal by Respondents) caused damages estimated at [amount] that should be borne by Claimant.

35. Claimant has failed to install certain equipment in the vessel, despite receiving payment for such equipment; Claimant should be ordered to provide the equipment and material listed or reimburse Counterclaimants for the amounts they have already paid ([amount]).

36. Claimant is in default with the classification authority, the shipyard, subcontractors and suppliers; Respondents paid [amount] as part of payment of Claimant's debts to the company responsible for releasing equipment from Customs, in order to prevent it from being deemed abandoned; the outstanding debts of Claimant owed to third parties, subcontractors and suppliers, are believed to be about [amount].

37. Article 25.6 authorises Respondents to employ another contractor for the implementation of the project upon termination of the Contract on account of Claimant's breaches; Respondents request this Arbitral Tribunal to order Claimant to reimburse Respondents for the difference between the amount that would have been paid to Claimant for the completion of the vessel and the actual costs to be incurred by them to complete the vessel with another contractor.

38. Pursuant to the first milestone payment, Claimant was obliged to deliver the Bill of Sale in respect of the hull, free from all encumbrances; Claimant represented and warranted that the hull was free from any maritime liens or encumbrances, pledges and debts to any third Party; however, there is a precautionary measure filed against Claimant in Brazil where the hull was subject to a court attachment (seizure) to secure payment of a debt owed by Claimant in the amount of …; Respondents request this Arbitral Tribunal to grant interim relief for the immediate payment of the due amount by Claimant, so as to ensure that the hull and equipment are free from existing court attachment.

39. Under the Contract, Respondents have the right to approve suppliers and subcontractors and control and supervise the whole construction of the vessel, but Claimant failed to act accordingly. Respondents ask the Arbitral Tribunal to order the Claimant to provide a list of suppliers, manufacturers, vendors and subcontractors along with information relating to current status of each and every supply order and status of payment and delivery; Respondents reaffirm their request for ex parte interim relief to continue the construction works themselves and pay the subcontractors and suppliers themselves, in order to prevent additional damages and losses being incurred, provided that in the event of a final award in favour of Respondents, Claimant is ordered to reimburse Respondents in an amount to be determined.

40. Respondents request the Arbitral Tribunal to grant access to all drawings, diagrams, plans, specifications and descriptions, which Claimant has not permitted; and also request delivery of spare parts for the maintenance of the vessel.

41. Respondents reaffirm that the Contract was not terminated under the grounds presented by Claimant. This is because [First Respondent] was never subject to dissolution and the Contract was assigned from [First Respondent] to [Second Respondent].

42. The Contract was terminated by Respondents, due to the several breaches committed and not remedied by Claimant;

43. Article 25 of the Contract provides for Claimant's duties which survived the termination; upon termination the title relating to all paid work and material was transferred thereunder to Respondents; Respondents have the benefit of a warranty set forth in Article 14 with regard to any defect, failure, breakdown or deterioration of the vessel.

44. Respondents reaffirm their right to be considered the sole and legitimate owner of the vessel and all the equipment installed or yet to be installed on it, as they have already paid 65% of the Contract Price for the design, construction, supply and commissioning of the partially-constructed vessel, less the [amount] paid to [First Respondent] pursuant to its call of the performance guarantees.

45. Respondents reaffirm their request for bifurcation of the arbitration.

46. Respondents request the Arbitral Tribunal to award the following relief: (a) By way of Interim Relief: (i)To authorize Respondents to immediately continue the construction of the vessel provided that in the event of a final award in favour of Respondents, Claimant is ordered to reimburse Respondents in an amount to be determined; (ii) To order Claimant to provide pending drawings, diagrams, plans, specifications and descriptions; (iii) To order Claimant to provide Respondents with a list of suppliers, manufacturers, vendors and subcontractors regarding payment and delivery for each and every supply order, including status regarding payment and delivery; (iv) To authorize Respondents to immediately pay (at their discretion) the outstanding debts owed by Claimant to third-party contractors provided that in the event of a final award in favour of Respondents, Claimant is ordered to reimburse Respondents for all amounts disbursed for the payment of the outstanding debts; (v) To order Claimant to immediately release the hull by paying the due amount, so as to ensure that it and the equipment are free from the existing court attachment; (vi) To order Claimant to immediately declare all its assets; (vii) To issue a freezing order in relation to Claimant's assets, in an amount sufficient to secure payment of the amounts claimed given that the financial difficulties of the Claimant may put the Respondents' right to indemnification at stake; (viii) To declare Respondents as the sole and legitimate owner of the hull, the equipment and the vessel; (b) In the Final Award: (i) To declare that Claimant is in breach of the Contract; (ii) To declare that the Contract was terminated due to Claimant's contractual breaches; (iii) To order Claimant to indemnify Respondents for the liquidated damages and loss and damages Respondents have incurred; (iv) To order Claimant to replace all equipment and materials that Claimant has unilaterally modified or, if not possible, to indemnify the Respondents for their respective amounts; (v) To order Claimant to provide all the outstanding equipment and material or reimburse Respondents; (vi) To order Claimant to reimburse Respondents for the amounts they already paid or may decide to pay in relation to Claimant's debts with classification authority, the shipyard, suppliers and subcontractors; (vii) To order Claimant to reimburse the difference between the amount that would have been paid to Claimant for the completion of the vessel and actual costs to be incurred for the completion of the vessel with other contractors; (viii) To order Claimant to pay interest on all sums due; (ix) To order Claimant to transfer the title of all paid work and material, including one year's supply of spares, as well as recognize the warranty rights set forth in the Contract which relate to the deterioration of the vessel and equipment; (x) To order Claimant to pay costs, including those of the Arbitral Tribunal and attorney's fees; (xi) To grant any further directions and remedies the Arbitral Tribunal may deem necessary.

f.4) Claimant's Reply to Counterclaim, filed July 07, 2008

47. Counterclaimants have no right to an ex parte order allowing Respondents to continue with the construction of the vessel; [Second Respondent] has already posed identical requests to the [local maritime authority] as well as to the local court …, which added [Second Respondent]'s name to the building licence alongside Claimant's name and although Claimant's name remained on it, [Second Respondent] and [the] Shipyard evicted Claimant's personnel and began to carry out construction work on the incomplete vessel; in February 2008 the [local] court ordered all work to cease and ordered the incomplete vessel and equipment to be preserved at the shipyard until this Arbitral Tribunal rules on the issue of ownership.

48. Claimant purchased every single item of equipment that was to become part of this vessel; has entered into countless contracts with suppliers and service providers; has financed [amount] of additional work itself; has incurred and continues to incur substantial litigation costs related to protecting its rights from claims [Second Respondent] has filed in Brazil in support of [Second Respondent]'s attempt to seize the partially constructed vessel and all equipment Claimant purchased to be installed on it; disputes with various suppliers and subcontractors as a result of [Second Respondent]'s interference with Claimant's contractual rights; and litigation in [another country] related to [First Respondent]'s demand on the above-referenced performance guarantees. The few instalment payments made by [First Respondent] do not even begin to compensate Claimant for the damages it has suffered.

49. The alleged rights of both Respondents to terminate the contract based on Claimant's breaches of it are inapposite to this case; neither Respondent ever purported to terminate the Contract for any alleged breach by Claimant before each had renounced the Contract; [First Respondent] renounced the Contract in early 2007, when it divested itself of all its material assets used in its business and its ability to perform its obligations; the agreement by which this transfer took place makes no mention of [First Respondent] continuing to do business in [its customary] sectors .

50. [Second Respondent] renounced the Contract no later than January 2008, when, together with Mr [A], it contacted Claimant's employees, subcontractors and suppliers to induce them to breach their contracts with Claimant and contract directly with [Second Respondent]; the email correspondence between [Second Respondent], Mr [A], subcontractors and suppliers leaves no doubt that [Second Respondent] undertook these solicitations in early January 2008 and had no intent of fulfilling the terms of the Contract.

51. Claimant agrees to bifurcate the arbitration so that the issue of ownership is addressed first. However, the issue of the ownership potentially includes several other issues which need to be included in the bifurcation, such as: (i) law governing the transfer of title, (ii) the effect to be given to the two different expressions of intent in the terms of the Contract (compare Article 19.9 - complete legal and beneficial title and ownership of the ship shall pass upon delivery of possession to [First Respondent] - with Article 19.1 and 19.2 inferring title to all equipment shall automatically pass upon respective payment to Claimant); (iii) whether title to any of the distinct categories of property (i.e. the hull, any equipment installed on the hull, any equipment not yet installed on the hull but purchased by Claimant) passed to either Respondent prior to delivery of a completed and commissioned vessel and upon payment of any instalment of the Price as required by the Contract.

52. According to Articles 8 and 9 of the Contract, Claimant had the right to an extension of the delivery date of the vessel in order to complete the additional work resulting from changes in the Contract's technical specifications as requested by [First Respondent] - this is a standard feature of Turnkey Contracts; the refusal of Respondents to negotiate forced Claimant to bear the time and cost impact of the additional work required to effect the changes; even if Claimant did not have a right to any extension of the delivery date, Respondents' claim to recover lost profits is foreclosed by Article 6.3 of the Contract.

53. The design, construction and commissioning of a ship is complex work and it was clear from the Contract that some changes were to be expected such that the Contract included provisions for [First Respondent] to ask for these changes and for Claimant to be compensated for the additional work and allowed for [sic] extension of time on the delivery date; there were no unilateral changes to the Technical Specifications, [First Respondent] always had relevant information, such as drawings, minutes of meetings and correspondence, and agreed with them.

54. Claimant always submitted detailed information, drawings and other material to [First Respondent]; and the request for spare parts did not make sense until the vessel was completed.

55. The management of subcontractors and suppliers is Claimant's responsibility, and there were no breaches of any of its subcontracts during the course of the work; [Second Respondent] has no legal or contractual right to insert itself into this relationship; the only allegations of breach arose as a direct result of [Second Respondent]'s interference (with the Shipyard); and even if there were breaches, there is no clause that equates a default by a subcontractor with a breach of the Contract.

56. Neither Respondent has any right to complete the vessel or has any right to the difference in costs of completion.

57. There has been no effective termination of the Contract by either Respondent; before recovering any damages, Respondents must establish that Claimant breached the Contract and that title to the incomplete vessel and the related equipment passed to Respondents before they can claim any additional costs to complete the vessel.

58. The hull is not encumbered: the last two instalments of the purchase price of the hull from … the former hull owner to Claimant are related to the delivery of a vessel to the third-party buyer, [First Respondent], which has not yet occurred; neither Respondent has immediately intervened to defend the hull from actions in Brazil, as an owner ought to have done.

59. The Contract does not force Claimant to provide, nor allow either Respondent to require, a list of Claimant's suppliers and subcontractors; the Contract simply provides for Claimant to furnish the names at [First Respondent]'s request for their approval as well as information about the equipment, which was complied with by Claimant during the course of the works.

60. Neither Respondent has any right to have Claimant transfer title to the incomplete vessel and equipment to [Second Respondent]; [Second Respondent] had no right to purport to terminate the Contract unless it had replaced [First Respondent], and such novation was never agreed by Claimant, as Mr [A] had no authority to enter into a novation nor was anyone with power to ratify it aware of its alleged existence (the power of attorney was explicitly limited to signing the original Contract on terms previously approved by the company, and was written in Arabic - Respondents cannot say they did not know this).

61. Neither Respondent has any warranty rights, as the warranties are for a period starting from the date of the delivery of the vessel, which has not yet happened.

62. Neither Respondent has any right to be considered the owner of the hull or any equipment installed or yet to be installed on it.

63. Claimant requests the Arbitral Tribunal: (i) To reject Respondents' requests for interim relief in their entirety; (ii) To dismiss Respondents' counterclaims in their entirety; (iii) To direct Respondents to pay all of the costs and expenses of Claimant in connection with its response to their counterclaims, inclusive of attorneys' fees; (iv) To award such further relief as the Tribunal may deem just and proper.

g) Appointment of Tribunal - procedural law of arbitration

64. In accordance with Article 34.2 of the Contract, an arbitration was commenced under the Rules of Arbitration of the International Chamber of Commerce.

65. In the Request for Arbitration dated 14 February 2008, Claimant nominated as its co­arbitrator …

66. In the Answer dated 16 May 2008, Respondents nominated as its co-arbitrator ...

67. The Secretary General of the International Court of Arbitration confirmed the nomination of the co-arbitrators on 23 May 2008, and. on 11 July 2008, the International Court of Arbitration appointed as Chair of the Arbitral Tribunal …

68. The present arbitration is conducted in the English language, in Geneva, Switzerland. Therefore, when the ICC Rules of Arbitration are silent, the supplementary procedural law is Swiss Law.

h) Terms of Reference

69. From September 22, 2008 to September 30, 2008, the Parties and Arbitrators signed the Terms of Reference (hereinafter "ToR"). Paragraph F of the ToR settles the issues to be determined in the arbitration, namely: (i) issues as to the ownership of the hull and its equipment and other materials to be installed upon that hull; (ii) whether Claimant, or Respondents or any of them, were in breach of Contract; (iii) whether the Contract was novated; (iv) whether the Contract was validly terminated by Claimant, or by Respondents or any of them; (v) what if any damages are payable by any party for any breaches of Contract which may be proved.

i) Decision on ownership issues

70. Both Parties agreed on the bifurcation of the award, so that the ownership issues could be settled before the other disputes and claims. Therefore, after the signing of the ToR, the Arbitral Tribunal gave directions for the exchange of briefs, and for a hearing, on ownership issues.

71. It was directed that the briefs, the hearings and the first award would be limited to the ownership issues. At this moment, the Arbitral Tribunal is not in position to decide any other issues referred in items (ii) to (v) of item "h" above. In particular, the Arbitral Tribunal is not in a position at present to decide the issues as to the validity of the Alleged Tripartite Agreement, and whether the Contract was thereby novated with the effect that Second Respondent succeeded to all the rights and obligations of First Respondent thereunder. Accordingly, save where expressly indicated otherwise below, references to "the Respondents" are to First and/or Second Respondent as appropriate, and in determining the ownership issues, the Arbitral Tribunal does not pre-judge any issue as to which of the Respondents any property in any item may have passed to, whether originally or by subsequent transfer or assignment.

j) Written submissions/briefs on ownership issues

j.1) Claimant's memorial on ownership and possession, filed November 14, 2008

72. The Contract was drafted by First Respondent and signed on Claimant's behalf by Mr [A] pursuant to a specific Power of Attorney. Although the Contract is dated 20 August 2006, First Respondent and Mr [A] continued to modify its terms and complete its Annexes after that date. On 15 September 2006, Mr [A] forwarded to First Respondent several modified pages bearing his signature.

73. Pursuant to the Contract, [Claimant] retained the right and the risk associated with identifying, designing and procuring the multitude of component parts that comprise the vessel, identifying and retaining the various skilled and unskilled labour, importing all the various components, and providing the project direction and supervision. The nature of the Parties' relationship, together with the terms of the Contract, specified [Claimant] as the only party entitled to enter into contractual relationships with the various suppliers and subcontractors, retaining, thus, all such contractual risk to itself. In addition to this contractual risk, all risks of liability to third parties remained with [Claimant] until the vessel was completed and delivered to First Respondent. The risk of loss for the equipment remained with its owner, [Claimant]. It was only after the delivery date that this risk of loss and the obligation to insure against it would be transferred to First Respondent.

74. Although the Contract contains both an initial price and delivery date, it left open the possibility for escalation of the former and extension of the latter if First Respondent requested alterations to the Technical Specifications. The modifications should then be subject to a contractual amendment.

75. First Respondent was to pay Claimant for its work on the vessel by an irrevocable letter of credit, to release the total amount in 07 (seven) instalment payments upon Claimant's satisfaction of 07 (seven) milestones, each one being premised on compensating for the blend of labour, equipment and project management, as provided under the Contract. The Contract also contained provisions for the transfer of legal title.

76. Claimant's and Respondents' representatives had a series of meetings on March 2007 to discuss the changes to the Technical Specifications. Even if Respondents were correct that the Alleged Tripartite Agreement was presented to Mr [A] at the meeting … on March 21, 2007, the minutes do not mention any corporate restructuring of First Respondent.

77. First Respondent consistently refused to discuss with Claimant the impact of any of the modifications to the Technical Specifications. Claimant could either stop the project and thereby delay it even further than had occurred due to First Respondent's modifications, or it could continue with the work mitigating any damage and hope to persuade First Respondent to honour its contractual obligations at a later date. Claimant chose the latter option, and continued its effort to engage First Respondent in the contractually-required negotiation.

78. On October 28, 2007, Claimant received a fax from its bank … consisting of a letter from Second Respondent to [the bank] dated October 21, 2007 and referencing the Alleged Tripartite Agreement. This document was executed by [a person] on behalf of both Respondents, but the signature on behalf of [Claimant] was illegible. Although it had a space for the date, the document was, at this time, undated. This correspondence surprised Claimant, who considered the novation invalid because it was unauthorized and suspect. Thus, the consent sought by [the bank] was not granted.

79. Also at this time, … the Brazilian company which had sold the hull to [Claimant], filed a legal action in Brazil seeking payment for the hull and applying for a temporary restraining order to arrest the vessel under construction. None of Respondents defended the action, as one would expect an owner to do. Claimant, however, filed a defence.

80. On December 04, 2007, Claimant received a letter … requesting Claimant to endorse a change on the performance guarantees to make them in favour of Second Respondent. Attached to this letter was another copy of the Alleged Tripartite Agreement, but it was different from the previous version because it was dated April 21, 2007 and the signature of Mr [A] was different.

81. On December 10, 2007, [the author of the above-mentioned letter] sent to [Claimant's legal representative] a cover letter from Mr [A] to First Respondent, stating: "As per your request, please find enclosed herewith your Agreement between [First Respondent¹] and [Second Respondent] duly signed by [Claimant]". The cover letter was dated March 26, 2007, which was almost a month before the date indicated on the Alleged Tripartite Agreement. Also, unlike regular [Claimant] correspondence, this one did not bear a Claimant's reference number.

82. On December 18, 2007, Second Respondent's lawyer wrote to Claimant rejecting Claimant's claims for extra-works and asking Claimant to renegotiate the Contract. On December 24, 2007, Second Respondent wrote again requesting Claimant to cure its breaches of Contract. However, Claimant found out that at the same time Respondents were inducing Claimant's suppliers to breach their contracts with Claimant.

83. Meanwhile, Claimant discovered that First Respondent had been listed as "no longer trading" in the official [local] corporate registry … and had been removed from the corporate registry entirely. Claimant terminated the Contract on January 16, 2008 based on the fact that First Respondent was no longer trading, its letter of credit securing payment under the Contract had expired, and it had been wound up.

84. In response, Second Respondent sent its own purported termination notice on January 17, 2008, alleging Claimant's failure to remedy the alleged breaches of the Contract. That same day, a letter, bearing the name of First Respondent, directed [Claimant's bank]'s corresponding bank to call the two performance guarantees that Claimant had issued in First Respondent's favour. Although [Claimant] initially obtained ex parte interim injunctive relief in [country X] to prevent [its bank] from paying out on the guarantees, the [local] court subsequently declined to continue the injunction given the presence of an arbitration clause and the fact that the funds secured by the performance guarantees were paid to First Respondent.

85. On January 24, 2008, Second Respondent filed an ex parte application with the … local court asking for an interim order by which the court would inter alia identify Second Respondent as the owner of all the equipment, delete Claimant's name from the building licence and replace it with the name of Second Respondent and to allow it to continue the work in place of [Claimant]. This request was granted in part, and Second Respondent's name was added to the building licence on February 11, 2008; but the court declined to decide the issue of ownership and instead ordered the equipment to remain at the shipyard until an arbitration was initiated to determine its ownership. Second Respondent then sought to evict Claimant's personnel from the shipyard, whose labourers were photographed installing Claimant's equipment onto the hull. Once it became aware of these acts, Claimant applied to the court for an order requiring all work to cease and that the incomplete work be preserved at the shipyard until the Tribunal ruled on the issue of ownership. Even after this arbitration was filed, Respondents have continued their attempts to seize the uncompleted vessel and all related equipment.

86. Claimant argues that !he law chosen to determine the contractual rights of the Parties is English law, which states that the lex situs of the property determines whether legal effect is given to the intention of when title should transfer as expressed in the Contract. The lex situs for the property at issue is Brazil. Under Brazilian law, title to chattels cannot be transferred except upon their physical delivery. According to Brazilian law, Claimant owns the hull and its equipment. Even if one were to apply English law, the results would be the same.

87. Claimant asks the Tribunal: (i) to declare Claimant to be the sole holder of legal title to all the property Claimant purchased for the subject of the Contract and that Respondents have no legal right to undertake construction work involving the Property; (ii) to direct First Respondent to dismiss all actions in Brazil in relation to the Property; (iii) to direct both Respondents to take all necessary acts to have their name removed from the shipbuilding licence … issued initially to [Claimant]; (iv) to declare that Claimant validly terminated the Contract by reason of the repudiatory breach committed by Respondents; (v) to declare that, in the alternative, Claimant has a lien on the property; (vi) to award [Claimant] all of the costs and legal fees it has incurred in defending its ownership interests in these proceedings; and (vii) to award such other and further relief as the Tribunal may deem appropriate.

j.2) Respondents' memorial on ownership and possession, filed December 19, 2008

88. On August 20, 2006 the Parties executed the Contract. Mr [A] continued to represent Claimant and to be Respondents' main point of contact until he left Claimant's employment on August 31, 2007.

89. On August 29, 2006 Claimant delivered to Respondents a duly authenticated Bill of Sale, together with a statement that the vessel under construction had never been registered with any port or flag. Respondents then registered the vessel with [their home country] and [that country's] flag was hoisted. Respondents also registered the vessel with the International Maritime Organization and forwarded the ID number to [Claimant] in January 2007.

90. In October 2007 [the former hull owner] filed a collection lawsuit in Brazil against Claimant because it had not paid the full purchase price of the hull. Contrary to the assertions of Claimant, Respondents filed a third party motion alleging that the hull was no longer the property of Claimant and therefore could not be used to secure payment of its debts.

91. Claimant requested the [local] Authorities to issue a construction licence for the vessel identifying [Claimant] as owner and [the] shipyard as constructor. [Second Respondent] was not informed of this and became aware only in late 2007 through independent research.

92. Respondents have released the payment of 04 (four) instalments to [Claimant]. Regarding the fourth instalment, the payment was made in advance in good faith so as to avoid delays in the construction, although not all the requirements of Article 4 (D) of the Contract had been fully satisfied. Claimant requested Respondents to release the fifth instalment in advance as well, claiming lack of funds, but Respondents refused to do so, as the construction progress was very far from dock trials. Subsequently, Claimant started arguing about advance payments due for "additional works" which were neither required nor formally approved by Respondents, and which were, therefore, all rejected by Respondents. On the other hand, Respondents requested compensation and/or corrective action for the deviations by Claimant from the agreed specifications, as well as the delay incurred during the construct ion.

93. The Parties have agreed that the applicable law of the Contract is English law. Contrary to the assertions of Claimant, pursuant to English law, the ownership of the hull and its equipment belongs to Respondents. Even if Brazilian law was applicable, the result would be the same.

94. Respondents request the Arbitral Tribunal (i) to declare that Claimant is estopped from denying the title of Respondents to all of the items paid by means of the [total amount of the first four instalments]; (ii) to issue a consequential order that, within 28 days of such an award, Claimant give an account of all the equipment for the vessel in relation to which Claimant has entered into any contractual engagement;(iii) for an order for delivery by Claimant of the hull in its present state and all the equipment identified up to the purchase price of [the total amount of the first four instalments]; (iv) further or alternatively, for a declaration that Claimant is estopped from denying the title of Respondents to the hull, everything affixed to it, the 2 main engines, the 2 generators and the major equipment; and an order for the delivery of all such equipment; (v) further or alternatively, for a declaration that Respondents are the owners of any equipment purchased for the vessel up to the value of [the total amount of the first four instalments]; (vi) further or alternatively, for a declaration that Respondents are the owners of the hull, everything affixed to it, the 2 main engines, the 2 generators and the major equipment; and an order for the delivery of all such equipment; (vii) for a declaration that [Claimant] has no lien over the vessel or anything in which it may have any interest that is destined for the vessel; (viii) for an award in the Respondents' favour of their legal and other costs and expenses; (ix) for an order for such further or other relief as the Tribunal shall deem appropriate.

95. Respondents do not consider that the effect of the Alleged Tripartite Agreement falls for determination in this phase of the arbitration. That does not prevent the Tribunal from making an award in favour of Respondents.

k) Hearings on ownership issues …

The Hearings on the ownership issues were conducted in … January ... 2009. The Arbitral Tribunal questioned and the Parties cross-examined the Parties' experts on Brazilian law, Professor [1] and Professor [2], and this was followed by statements of each Party's position and arguments, summarized as follows:

k.1) Claimant

96. Introduction. Claimant argues that First Respondent contracted with [Claimant], a small … company [from a country in the Pacific], to design, build and commission a complex vessel; it did not contract with a big ship building company, and the difference between the size and structure of Claimant and Respondents should be considered.

97. Claimant submits that the Contract provides Respondents with a reasonable amount of security because, as long as First Respondent participates in the process, which it was entitled to do under the Contract, and as long as Claimant does not have pre­existing liabilities, Claimant as a Special Purpose Vehicle (SPV) cannot generate additional liabilities from other projects. Moreover, there were two performance bonds issued for a total of [amount], and First Respondent was entitled to a builder's risk insurance policy in which, even though the hull was to be purchased by [Claimant], First Respondent could participate, being a named beneficiary. Therefore, should there be a loss caused by an insurable event, First Respondent had security for that as well.

98. If First Respondent took on more risk than it might have wanted to, in return it was going to get the vessel faster. Besides, First Respondent had very efficient ways to manage the risk throughout the progress of the works, as long as it was living up to its contractual obligations.

99. Conflict of laws. Claimant agrees that with regard to First Respondent, there is no mandatory provision of Swiss law which requires the application of Brazilian law, and that it is up to the discretion of the Tribunal to decide whether or not Brazilian law is applicable to the transfer of title. However, in respect of Second Respondent, whether or not the Contract chose English law with or without its conflict of laws rules is rather irrelevant. The Submission Agreement does not have a choice-of-laws clause in it. Therefore, Swiss law applies to Second Respondent, and provides for the laws of the situs. It is provided in the Swiss Federal Act on International Private Law, article 100, that: "the acquisition and loss of rights in rem to chattels shall be subject to the law of the state in which the property is located at the time of events from the acquisition to when the loss was derived". This is a mandatory rule of Swiss law, which results in the application of Brazilian law, at least so far as Second Respondent is concerned.

100. It is important to underline that Claimant submits that Second Respondent is not the successor by law to First Respondent, but it simply bought some assets. It cannot be a successor because they are incorporated in two different jurisdictions.

101. Possessory covenant and turnkey contract. Article 5 of the Contract includes a reference to the filling out of a Certificate of Delivery and Acceptance. In Articles 19.3 and 19.7 Claimant agrees that it shall bear and remain liable throughout the course of the works, until the date of the Final Acceptance Certificate, for any risks and liabilities in relation to the Vessel.

102. Article 20 of the Contract puts the onus on Claimant to insure the Vessel during the course of construction before Delivery. Again, Delivery is defined in the Contract as physical delivery.

103. Article 32.1 provides that the Contractor shall be solely responsible for all taxes, including income tax, duties, levies, fines, demurrages, port charges, customs duties, class fees, whatsoever, which may be chargeable or payable in respect of the Vessel until Final Acceptance Certificate issued by [Second Respondent]. That clause is more consistent with Claimant owning the works than it is with First Respondent owning the works, otherwise First Respondent should be paying the taxes.

104. Article 32.2 incorporates the definition of Transfer of Title. That means the passing of title to the hull to [Second Respondent] pursuant to the Bill of Sale and, conjunctive, subsequent passing of all legal and beneficial right, title and interest on the vessel to [Second Respondent] upon delivery.

105. Brazilian law. Claimant submits that the doctrine in Brazil is that two simultaneous acts are required for the application of the exception to physical delivery of an asset: one by which power over the property is given from the former owner to the new owner, and a second act by which the new owner gives a right to possess back to the former owner. But, in Claimant's submission, the documents in the case at hand do not contain these acts.

106. Professor [2] agreed that there is no court precedent in Brazil that confirmed that two contractual terms operating on the trigger of a payment could constitute a constituto possessório.

107. Claimant also submits that the title to the equipment has not passed to Respondents, because there is no way, under Brazilian Law, to determine how it could have passed.

108. Estoppel. The second representation that is identified is the Bill of Sale. However, Claimant submits there is no reference in the Bill of Sale saying title has passed. Claimant submits that the Bill of Sale could not constitute a statement or representation of fact because the person allegedly making the representation should have the knowledge that it was indeed a fact, and there is no evidence that Claimant had that knowledge.

109. The third representation that was referred to in Respondents' submission is related to the third milestone payment (Exhibit R-22). The assertion of estoppel is being made that this document was given to induce payment of the third milestone. But, if one looks at exhibit R-23, First Respondent knew quite well that Claimant itself still had not received the engines, which were still being tested. So, clearly, this document did not induce payment of third milestone.

110. As to the fourth alleged representation of fact, it refers to the fourth milestone, and, again, is being suggested as having been a representation made by Claimant to secure payment of the fourth milestone. Claimant submits that although payment was made in response to several letters authored by other companies, there were none authored by [Claimant]. Therefore, there is no representation by the Claimant which could form the basis of an estoppel there.

111. Claimant agrees with [one of the co-arbitrators] that First Respondent has paid the Claimant [amount] net, taking account of the claw back on the performance guarantees. However, Claimant has not profited out of this amount.

112. Claimant asserts that the payments were made from Respondents to Claimant for the services performed on the vessel, because it had satisfied the milestones that were met. Therefore, the payments cannot be considered enough for transferring the title to the vessel or the equipment to Respondents.

k.2) Respondents

113. Introduction. Respondents submit that Claimant's case involved the proposition that the structure of the Contract was such that [Second Respondent] would have no security in respect of the payments it made, other than two performance bonds each in the amount of ... And [the amount of the two bonds] would be swallowed up by the first instalment payment, which was [amount]. Claimant would have received and in large part spent [Second Respondent]'s money. But, if anything went wrong with the contract, it was Claimant's case that [Claimant] could keep both the cash and everything bought with the cash, while Respondents were simply unsecured creditors. Respondents allege that it would be an absolutely extraordinary way to go about a shipbuilding contract for the buyer to proceed, and have to make substantial payments, with absolutely no security whatsoever.

114. Conflict of laws. An international arbitral tribunal is not a national court, so there are no laws which are its own and there are no laws which are foreign to it: hence it does not have its own conflict of law rules. Second, there are no mandatory rules of the seat of this Arbitral Tribunal that require the application of English conflict of law rules in a situation in which the parties have chosen English law to govern the contract, which is the case at hand. Third, the choice by the Parties of English law to govern the Contract does not require this Arbitral Tribunal to apply English conflict of law rules as part of the law chosen by the Parties - it is English contractual law which this Arbitral Tribunal is required to apply. To confirm this argument is the fact that English law is neutral between the Parties: it can be inferred that Respondents would not have accepted Brazilian law and Claimant would not have accepted the law of the [First Respondent], thus they chose English law. They would not have thought this imported a choice of English conflict of law rules. Finally, article 28.1 of the UNCITRAL Model Law provides that where the parties choose the law of a given State to govern their agreement, they are not taken to have chosen its conflict of law rules. The same provision is found in section 46 of the English Arbitration Act 1996, in article 16 of the introductory law to the Brazilian civil code and in article 187 of the Swiss Private International Law. When parties choose a substantive law, they are not choosing conflict of law rules of that substantive law.

115. Possessory covenant. In respect of the Bill of Sale, Respondents state that either Claimant made the statements therein and believed them to be true, or Claimant made those statements but did not believe them to be true. In the second case that would mean that the statements were made fraudulently by Claimant, but if Claimant believed them to be true, then at some time since August 30, 2006 it has had something of a change of heart as to whether these statements are true or not.

116. What Article 19.5 of the Contract means is that, if money paid by Respondents under the milestone payments is used to purchase equipment, then that equipment is the property of Respondents. That is the security which Respondents bargained for, and that is the security that Respondents received by virtue of Article 19.5.

117. The Contract does not need to provide expressly for the passing of property in each and every item of equipment. In so far as equipment has been affixed to the vessel, it comes into Respondents' ownership by "accession", as a matter of both English law and Brazilian law.

118. The language of Article 19.6 makes it plain that it is talking about the period effectively from the passing of title in the hull from [Claimant] to [Second Respondent], until the delivery date: Following the passing of title to the hull from the contractor to [Second Respondent], the Contractor shall remain in physical possession of the Vessel until the Delivery Date.

119. Articles 19.6 and 19.5 are two very different things. Article 19.5 provides that, upon respective payment by Respondents, as security for the money they are advancing for construction of this Vessel, Respondents automatically acquire title to the equipment bought with that money, and title remains with them. However, clause 19.6 provides that the Contractor remains in physical possession of the Vessel, the hull and everything to be added to it, until the delivery date, so that the Contractor can carry out his work. That is what these two clauses mean when properly read together.

120. Estoppel. The better view under English law is that, while the doctrine of estoppel by representation started as a rule of evidence, it is now a rule of law, and therefore must be applied as part of the rules of English substantive law as chosen by the parties. Claimant's pre-contractual statement that no additional bank guarantee is required because any item paid for becomes the property of Respondents, is capable of founding an estoppel by representation. Respondents are not precluded from relying on such representation by the entire agreement clause in the Contract, because such clauses are intended to operate so as to prevent either party relying upon "prior negotiations, representations, undertakings and agreements" which have or are said to have an effect upon the contract. An estoppel does not change or affect in any way the terms of the contract. Estoppel by representation operates outside of the contract to preclude a party from relying upon a construction of the contract inconsistent with the representation made.

121. Respondents ask for a declaration that they have title to the hull and everything that is affixed to it; to the items specifically identified in the milestone payments; and to all of the other property that has been purchased with the [amount of the first four instalments] provided by Respondents. They also ask for an order for delivery up in relation to the hull and to the material identified in the milestone payments, and for an order for disclosure of exactly what has been purchased with the funds advanced by them.

l) Post-hearing briefs on ownership issues, filed February 26, 2009

On February 26 the Parties submitted their post-hearing briefs on ownership issues, summarised by the Tribunal as follows:

1.1. Claimant

122. Introduction. Claimant responded to three specific enquiries: (1) it provided information regarding its expenses on the project as well as the current state of construction; (2) it advised the Tribunal as to the various items of pending or anticipated litigation in connection with the project; (3) it provided a post-hearing submission on Brazilian law.

123. Claimant's expenses and the current state of construction. Claimant's expenses on the project include out-of-pocket expenses for both equipment and service suppliers (Section A, [amount]), outstanding liabilities to third party suppliers and sub-contractors (Section 8, [amount]), and expenses for maintenance of the equipment, insurance and litigation expenses (Section C, [amount]).

124. From these amounts totalling more than …, Claimant has received only [an amount corresponding to 65% of the total] (net) in compensation under the Contract.

125. Claimant has contracted for more equipment and services than it ultimately received in instalment payments, and all money received from Respondents was used to pay for labour engineering, design, general overhead and other incurred costs. In many cases it is impossible to determine if the price paid (or owed) to the supplier was referring to the equipment or to its services.

126. Property in the equipment. Even if title to the hull passed to either Respondent, and it were possible to identify which equipment was purchased with the instalment payments, title to the equipment does not pass from [Claimant] as a matter of English law unless it was affixed to the hull. Affixation means permanent and irreversible physical attachment, a concept broadly accepted in England, as can be noticed in Curtis on Shipbuilding Contracts and in the cases Wood v. Bell, Seath v. Moore, Reid v. Macbeth and Gray and Re Blyth Shipbuilding and Dry Docks Co.

127. It can be concluded from these cases that "appropriation" is an independent legal test that must be satisfied for there to be any deemed intent to transfer equipment in the course of a shipbuilding contract, notwithstanding the existence of a continuous transfer of title provision. Therefore, continuous transfer of title provisions, such as Article 19.5 of the Contract, are irrelevant as a matter of English law, because if such affixture does not occur, the doctrine of appropriation will prevent title from passing.

128. Current state of construction and pending or anticipated satellite litigations. Claimant attached Exhibit C-115 and C-116 on these matters.

129. Post-hearings submissions on Brazilian law. Claimant argues that there was no transfer of title or possession from [Claimant] to Respondents after [Claimant] had acquired title and possession to the hull and equipment.

130. With respect to the hull, there was no transfer of title because there was no physical delivery, and the Parties did not satisfy any of the exceptions set forth in Article 1.267 of the Brazilian civil code: the requirements of the doctrine of the constituto possessório were not satisfied, according to the expert witnesses' written submissions and testimonials during the Hearings. Therefore, the ownership of the hull belongs to [Claimant]. Regarding the equipment, the situation is the same.

131. In conclusion, Claimant submits that there was no transfer of title of the hull or any of the equipment from Claimant to Respondents, and this should be recognized by the Arbitral Tribunal.

1.2. Respondents

132. Introduction. Respondents summarise herein their arguments in support of the claim that they have title to the hull and equipment under Brazilian law.

133. General rule on passing of movable property. Brazilian civil law provides that title in movable property usually passes upon delivery, but in some circumstances the delivery is implied, as, for instance, under Article 1.267, sole paragraph, of the Brazilian civil code. Moreover, there is no mandatory provision in Brazilian law nor any public policy rule obliging the Parties to observe one specific method of passing title of movables under turnkey agreements. Parties are therefore free to agree on a gradual passing of property, as happened in this case, via both fictional and symbolic delivery.

134. Delivery by fictional delivery via constituto possessório . Prof. [1] suggested that fictional delivery would require two simultaneous and bilateral acts of will. However, this understanding was based on a single court precedent with no further authority provided before or during the hearing. An analysis of the above­ mentioned case reveals that the facts of this arbitration are compatible with the essence of the constituto possessório described in that judgment, as there was a mutual consent that Claimant would remain in possession of the hull and equipment after the respective payments. Besides, Prof. [1] confirmed that the constituto possessório is not defined in the Brazilian civil code, meaning that there are no legal requirements to be met before constituto possessório can be established.

135. Although it can be stated that the agreement (that said Claimant would remain in possession of the hull and equipment after the respective payments, to conclude the works) was made in advance, these two acts of will entered into effect simultaneously at the moment of the respective payments. The provisions governing the Bill of Sale and the certificates reinforce the fact that the acts were simultaneous.

136. Delivery by symbolic delivery. The passing of title of the hull and of some equipment has also operated through symbolic delivery. There is no formal requirement under Brazilian law as regards the manner in which symbolic delivery of property shall occur. Thus, delivery of the Bill of Sale can represent the passing of title to the hull. What matters is the Parties' intention under the Contract and the circumstances surrounding the delivery.

137. Regarding the equipment, the declaration of March 27, 2007, whereby [Claimant] declared that [Second Respondent] "is the sole, absolute, legal and beneficial owner" of 04 (four) engines and 02 (two) generators, is further evidence of the delivery of that Major Equipment. Claimant should have provided [Second Respondent] with a similar declaration as regards the other items of Major Equipment in compliance with the requirements for payment of the fourth milestone.

138. Specification. Respondents submit that specification does not apply to this case, because there was a Contract providing for specific rules on how title should be transferred. Besides, according to Prof. [2], specification would not apply if the construction of the new thing was "on demand" and retained by a third party, as in this case. It only applies when the party who creates the new thing from raw material creates it for its own benefit, which is not the case here.

139. Nature of the contract. As the Contract is governed by English law, any Brazilian law provisions relating to the interpretation of turnkey contracts would be irrelevant. In any event, Brazilian legal provisions do not provide for any peculiarities concerning passing of title under a turnkey contract. Therefore, the discussions on passing of title should be limited to the general rules provided for in Article 1.267 of the Brazilian civil code.

140. Good faith. The Parties intended that passing of title was to be a continuous process in the construction of the vessel, and this should be borne in mind by the Tribunal.

141. In conclusion, Respondents submit that there was a transfer of title of both the hull and of all the equipment paid for by Respondents from Claimant to Respondents, and this should be recognized by the Arbitral Tribunal.

II. Applicable substantive rules of law

142. According to Article 17.1 of the ICC Rules of Arbitration: "The Parties shall be free to agree upon the rules of law to be applied by the Arbitral Tribunal to the merits of the dispute."

143. Article 34.1 of the Contract provides that: "The validity interpretation and performance of this Contract, in all respects, shall be governed by the laws of England."

144. This provision constitutes a choice of the substantive law of England, and not its conflict of law rules. We can see, by analogy, Article 28 of the UNCITRAL Model Law on International Commercial Arbitration and Section 46 (2) of the English Arbitration Act 1996:

Article 28. Rules applicable to substance of dispute

(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.

(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so.

(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.

Section 46. Rules applicable to substance of dispute

(1) The arbitral tribunal shall decide the dispute:

(a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or

(b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal.

(2) For this purpose the choice of the laws of a country shall be understood to refer to the substantive laws of that country and not its conflict of laws rules.

(3) If or to the extent that there is no such choice or agreement, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

145. Hence, the arbitral tribunal concludes that it is clear from Article 34.1 of the Contract that the choice of law made by the Parties is for the substantive law of England, and not its conflict of law rules; and it is therefore unnecessary to refer to Brazilian law, as the law of situs of the vessel, to determine whether and when property in the hull and equipment passed.

III. Relevant provisions of the contract

146. The Contract is described as a "Turnkey Contract": and the relevant definitions (which apply "unless repugnant to the context or otherwise") are set out in Article 1:

(…)

Bill of Sale: means a bill of sale to be executed by the Contractor in favour of [Second Respondent] in the form set out in Annex I.

(...)

Delivery: means the delivery of the Vessel by the Contractor to [Second Respondent] within the delivery window as specified under Article 5 at such place as specified under this Contract or otherwise mutually agreed between [Second Respondent] and the Contractor in writing and fully in accordance with the Technical Specifications and after having successfully carried out necessary trials including Sea Trials the acceptance of which are to be acknowledged by Classification Society and such third party as appointed by [Second Respondent] in writing after fulfilling all respective obligations of the Contractor including handing over of necessary Certifications/Approvals as well as other relevant documentations as required under this Contract.

Delivery Date: means the date of Delivery which shall be on or before the Thirty First Day of July 2007, unless otherwise mutually agreed between the parties in writing, and as evidenced by the date of the Certificate of Delivery and Acceptance.

(...)

Final Acceptance/ Final Acceptance Certificate: means the final acceptance of fulfilment of all respective obligations of the Contractor under this Contract as evidenced by issuance of a Final Acceptance Certificate in the form set out in Annex H by [Second Respondent] upon expiry of 12 calendar months after the date of the Certificate of Delivery and Acceptance.

(...)

Major Equipment: means (a) 4 (four) main alternators, (b) one Port Generator,

(c) one Emergency Generator, (d) 4 (four) thrusters electrical motors, (e) 2 (two) air conditioning units, (f) 2 (two) air compressors, (g) 2 (two) water maker vacuum type, (h) 2 (two) deck 5T metre provision cranes, (i) main deck 60T metre crane,

(j) helicopter platform and (k) moon pool.

Major Steel works: means (a) hull, (b) accommodation, (c) compartments, (d) Major Equipment foundations and piping, steel works.

(...)

Payment Milestone: means respective milestone payment(s) of the total 7 (Seven) different payment milestones as detailed in Article 4 and to be settled against respective invoice(s) of the Contractor upon fulfilment of Contractor's respective obligations and in accordance with the terms and conditions of the Irrevocable Letter of Credit established by [Second Respondent] in favour of the Contractor.

(...)

Transfer of Title: means the passing of the title of the hull to [Second Respondent] pursuant to the Bill of Sale and subsequent passing of all legal and beneficial right, title and interest on the Vessel to [Second Respondent] upon Delivery

(...)

Vessel: means the multipurpose support vessel with duplex dynamic positioning system to be designed, completed construction, commissioned and handed over to [Second Respondent] by the Contractor in full compliance of respective requirements under this Contract.

(...)

147. The scope of the Contract is described in Article 2.1:

2.1. The Contractor shall design, complete construction, supply, test and commission for proper operation, a Multi-purpose Ship with Duplex Dynamic Positioning System (the "Vessel"), in accordance with the Technical Specifications attached hereto as Annex A, at the Price as mentioned under Article 3 herebelow, within the Delivery Period as specified under Article 4 and in accordance with the other terms and conditions of this Contract.

148. Article 4 specifies the Payment Milestones. Regarding the passing of property, the important provisions are:

A. Payment no. 1: [Second Respondent] shall pay to the Contractor an amount equal to 15% (fifteen per cent) of the Contract Price, i.e. [amount] subject to, and immediately after, the fulfilment by the Contractor of the following:

a) Delivery of an original Bill of Sale of the hull, duly authenticated by the concerned Authorities and the Embassy of the [Respondents' home country]/concerned authority of [Respondents' home country]. The parties agree that the delivery of such original Bill of Sale will be in the form of Bill of Sale as set out in Annex I whereby the complete legal and beneficial title in the hull, free from all Encumbrances, shall pass to [Second Respondent].

(...)

C. Payment no. 3: [Second Respondent] shall pay to the Contractor an amount equal to 18% (Eighteen Per Cent) of the Contract Price, i.e. [amount] subject to, and immediately after, the fulfilment by the Contractor of the following:

(...)

c) Delivery by the Contractor to [Second Respondent] of certifications by such third party(ies) manufacturers, suppliers, agents or Classification Society/Authority and confirmed by such third party as appointed by [Second Respondent] that 4 (four) main engines and 2 (two) generators (i.e. Emergency Generator and Harbour Generator) have been delivered, ex-works respective factory and tested, in accordance with B. V. Applicable, Rules of the Classification Authority/Society and the approved Technical Specifications of the Vessel and the complete legal and beneficial title in these engines and generators has unconditionally passed to [Second Respondent].

(...)

D. Payment no. 4: [Second Respondent] shall pay to the Contractor an amount equal to 15% (fifteen per cent) of the Contract Price, i.e. [amount] subject to fulfilment by the Contractor of the following:

Delivery by the Contractor to [Second Respondent] of all necessary certification(s) by such third party(ies) manufacturers, suppliers, agents or Classification Society/Authority and/or confirmed by the third party as appointed by [Second Respondent] that the "Major Equipment" are shipped to be delivered to the Vessel in accordance with the Contract and the complete legal and beneficial title in the Major Equipment has unconditionally passed to [Second Respondent].

(…)

149. Article 5 makes provision for the delivery of the Vessel:

Delivery of the Vessel: The Contractor shall complete all the works and deliver the vessel in Brazil on or before 31st July 2007 in all respects fully meeting the Technical Specifications and other respective requirements of this Contract after successfully carrying out all necessary Tests and Sea Trials programme the adequacy of which shall be verified by the classification society and confirmed by the third party as appointed by [Second Respondent] showing that the vessel has acquired the class at a port in [Brazil/a European country/Respondents' home country], unless otherwise mutually agreed in writing between [Second Respondent] and the Contractor. At the time of such Delivery, the Contractor and [Second Respondent] shall sign a Certificate of Delivery and Acceptance and which shall record the fact that the Contractor shall have physically delivered the Vessel to [Second Respondent] and that [Second Respondent] has accepted delivery of the Vessel subject to any guarantee deficiency(ies). The Contractor shall deliver to [Second Respondent] one true model of the Vessel at scale clearly showing respective equipment/machineries including the heli-deck prior to the Delivery of the Vessel. The Vessel shall be transported from Brazil shipyard/port to [a] port in [a European country] at the Contractors Costs/expenses. [Second Respondent] may request the Contractor to Deliver the Vessel to any other Port at its discretion according to mutual agreement between the parties in writing.

150. Article 16 explains the turnkey basis of the Contract:

16.1. The Contractor hereby confirms and acknowledges that the Contractor's obligations, under this Contract, in all respects, whatsoever, shall be on full and turnkey basis and hence the Contractor shall have the complete and overall responsibilities for carrying out all respective works/activities during all stages of the construction of the Vessel in accordance with this Contract.

16.2. It is understood that the construction of the Vessel may require involvement of different Shipyards and different Subcontractors, including, but not limited to the, towage of the hull from one Shipyard to other Shipyard. The Contractor hereby guarantees, confirms and acknowledges that involvement of such different Shipyards or Subcontractors shall not, in any way, reduce or exonerate the Contractor from any of the Contractor's obligations under this Contract nor shall any of the Contractor's Subcontractors or Shipyards involved in the construction of the Vessel shall have any direct relation or claim against [Second Respondent] for whatsoever reasons. The Contractor shall ensure that in all the Sub-Contracts required for implementation of this Contract, the Contractor shall expressly make it clear that such sub-contractor(s) shall raise/address any of their concern or claims only directly to the Contractor and [Second Respondent] shall always be held free and harmless against any claim from the Contractor's sub-contractor(s) as well as any of the Shipyards. [Second Respondent] acknowledges that the performance of any of the obligations of the Contractor under this Contract that are performed by any Shipyards and/or Sub-Contractors shall be treated as being performed by the Contractor under this Contract. The Contractor shall be solely responsible for the design, plans, drawings, specification and in general, responsible for all aspects and details of the Vessel and shall be deemed to have satisfied himself that he has obtained complete and proper information to construct the Vessel in accordance with the requirements under this Contract and in particular the operational requirements of the Vessel by [Second Respondent].

16.3. Where facilities are stated to be provided by [Second Respondent], it shall be the responsibility of the Contractor to advise [Second Respondent] of all details necessary to enable [Second Respondent] to provide such facilities.

151. Article 19 deals with issues as to title, risk and possession:

19.1. Upon receipt of the original Bill of Sale of the hull, duly authenticated by the concerned Authorities and concerned representative/authority of [Respondents' home country], the hull shall become the absolute property of [Second Respondent].

19.2. When the Contractor delivers the Bill of Sale in respect of the hull to [Second Respondent], [Second Respondent] shall have the sole legal and beneficial title in and to the hull pursuant to the Bill of Sale free from all Encumbrances. Passing of the title on the hull to [Second Respondent] shall not, in any way, relieve the Contractor from fulfilling any of his obligations under this Contract.

19.3. Notwithstanding anything to the contrary, until the Delivery of the Vessel to [Second Respondent] by the Contractor, all risks and liabilities, whatsoever, in respect of the Vessel either before its construction or at any stage of the construction, shall be to the Contractor and [Second Respondent] shall be held fully harmless and free from any such risks for whatsoever reasons.

19.4. Save the express provisions of this Contract otherwise, particularly, the Contractor's guarantee/warranty obligations, with effect from the date of Final Acceptance Certificate the Contractor shall be held fully harmless and free from any risks or any liabilities in respect of the Vessel after the Delivery Date.

19.5. Title to all equipment and other items of the Vessel shall automatically pass to and remain with [Second Respondent] upon respective payment to the Contractor.

19.6. Following the passing of title to the hull from the Contractor to [Second Respondent], the Contractor shall remain in physical possession of the Vessel until the Delivery Date.

19.7. Save the express provisions of this Contract otherwise, particularly, the Contractor's guarantee/warranty obligations, with effect from the date of Final Acceptance Certificate, [Second Respondent] shall assume all risks and liabilities whatsoever with respect to the Vessel and the Contractor shall be held fully harmless and free from any risks or any liabilities in respect of the Vessel.

19.8. Subject to the provisions of Article 8 hereabove, following the transfer of title, [Second Respondent] shall be entitled (but shall not be bound) to register the hull in a shipping registry of [Second Respondent]'s choice.

19.9. Notwithstanding anything to the contrary, upon Delivery of the Vessel to [Second Respondent], the complete legal and beneficial title and ownership of the Vessel as a whole including all equipment and inventories thereto shall pass to [Second Respondent] and [Second Respondent] shall have the absolute ownership of the Vessel. Such passing of title and ownership of the Vessel to [Second Respondent] shall be in addition to the title and ownership to the hull of the Vessel which shall pass to [Second Respondent] as mentioned hereabove. In addition to the Bill of Sale in respect of the hull, the Contractor shall deliver all necessary documentations/ certifications to [Second Respondent] at the time of delivery of the Vessel in order to prove in all respects and to comply with all applicable laws/rules/regulations that [Second Respondent] is the absolute owner and has full legal and beneficial title, rights and interests on the Vessel free from any and all encumbrances.

152. Article 20 deals with matters of insurance. Of relevance are the following

provisions:

(…)

20.2. From the date of this Contract until the Delivery Date, the Contractor shall at his own cost arrange and obtain necessary and adequate insurance coverage in respect of the Vessel from internationally reputable insurance companies to insure the Vessel and all equipment/machineries/materials whatsoever belonging to the Vessel or part of the Vessel against all risks and liabilities which are customarily insured in the ship-building industry, including insurances in respect of the Trials and the Sea Trials. The amount of such insurances shall be decided by the Contractor but must not be less than the amount that [Second Respondent] shall have paid to the Contractor from time to time under this Contract.

20.3. As [Second Respondent] will have an insurable interest in the Vessel and all equipment/machineries/materials whatsoever belonging to the Vessel from Title Transfer, [Second Respondent] shall be a co-assured on such insurances to the extent of [Second Respondent]'s interest. However, if it is not possible for the Contractor to arrange and obtain necessary and adequate insurances from Title Transfer due to the fact that [Second Respondent] will have received title in the hull, the Contractor and [Second Respondent] shall co-operate with the view to [Second Respondent] effecting, at the Contractor's cost, the necessary and adequate insurance cover referred to above and the Contractor shall be a co-assured on the insurances and, if required by the Contractor, the Contractor will have the benefit of any insurances in respect of builders risks.

(...)

20.6. If before Delivery, the Vessel shall become a Total Loss, then any monies received in respect of any insurance claim in respect of any Total Loss shall be paid to the Contractor. The Contractor shall pay to [Second Respondent] the amount of any Payment received by the Contractor from [Second Respondent] as of date and thereupon this Contract shall terminate and neither Party shall have any further obligations to the other in respect of this Contract. Upon such payment received from the Contract, [Second Respondent] shall return the bank guarantee to the Contractor. Without prejudice to the generality of the foregoing and for the avoidance of any doubt, if the Vessel shall suffer a Total Loss before Delivery, the Contractor will not have any obligation to provide a replacement vessel to [Second Respondent].

(…)

153. The tax obligations are divided between the Parties according to Article 32 of the Contract:

32.1. The Contractor shall be solely responsible for all taxes including income tax, duties, levies, fines, demurrages, port charges, customs duties, class fees, whatsoever, which may be chargeable or payable in respect of the Vessel until Final Acceptance Certificate issued by [Second Respondent].

32.2. Any taxes, fees and expenses arising in [Respondents' home country] in connection with the Transfer of Title to the hull pursuant to the Bill of Sale in respect of the hull including any costs and expenses incurred in connection with the registration of the hull shall be borne by [Second Respondent].

154. The only other Article which it is necessary to cite is Article 40:

This Contract, including the Technical Specifications and Annexes hereto which are incorporated herein and made part of this Contract, contains the entire agreement and understanding between the parties hereto and supersedes all prior negotiations, representations, undertakings and agreements on any subject of this Contract.

155. Annex G to the Contract gives a breakdown of prices. Item 11 relates to the extra items agreed during negotiation meetings. Item 11.1 relates to the Extra Works requested by [Second Respondent] during a meeting … on May 29, 2006, which were provided at no cost and without any schedule impact.

156. Annex I to the Contract prescribes the form of the Bill of Sale to be issued in respect of the hull.

IV. The Bill of Sale

157. A Bill of Sale in the form prescribed by Annex I to the Contract was duly signed on behalf of the Claimant, and delivered to the First Respondent, on August 29, 2006, as can be seen from the Exhibit C-83. It reads (in material part) as follows:

(...)

1. The seller ([Claimant]) represents that it has in its absolute and undisputed ownership, use and possession a new built vessel known as hull …, which is consisted from [sic] a steel hull of approx. 1.050 t purported to operate as ship after the completion of certain works and the fixing and installation of certain machinery, fittings, and equipment so that to become a complete vessel, (which is called herein after collectively the hull).

2. The seller sells hereby and transfers the full ownership, use and possession of the hull unto the buyer ([Second Respondent]) under the following terms and conditions.

3. The price of the hull in premises has been agreed to the sum of [amount] which is considered to be the fair value of the hull.

The aforementioned amount of … will be paid as said in [an irrevocable letter of credit].

4. The seller represents and guarantees that the hull is free from any maritime liens encumbrances whatsoever, including and not limited to mortgages, pledges, dues, taxes, and debts to any third party, to the Brazilian government any authority, organization and legal entity of the public or private sector, and in general free from any claim whatsoever attachment, vindication and legal dispute.

5. By virtue of this present the buyer becomes the absolute and undisputed owner, user, and possessor of the hull, being entitled to dispose of and transfer its rights for any cause unto a third party.

6. In witness thereof this present was drafted, perused and signed in 3 (three) originals by the parties mentioned herein.

The seller undertakes to produce one of the originals to any authority for registration.

This Bill of Sale was duly authenticated by the concerned Authorities, and by the Embassy of [Respondents' home country], and was in all respects fully compliant with Article 4A (a) of the Contract.

V. Position under English law

158. The English Sales of Goods Act of 1979 provides, by sections 16-18, so far as material, that:

Section 16. Goods must be ascertained.

(...) Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.

Section 17. Property passes when intended to pass.

(1) Where there is a contract for the sale of specific or ascertained goods the

property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.

Section 18. Rules for ascertaining intention.

Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.

(...)

Rule 5.

(1) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods then passes to the buyer; and the assent may be express or implied, and may be given either before or after the appropriation is made.

159. The intention of the Parties is [to] be determined from the provisions of the Contract, construed as a whole, and set against the background to the Contract.

160. The Parties referred to what were said to be four English law cases dealing with title (in fact, two of them were Scottish law cases), as follows:

• Wood v. Bell [1856] 6 E. & B. 355: in this case, it was held that property did not pass in materials that were intended tor the ship under construction, unless and until they were fitted to the ship and thereby became part of it.

• Seath & Co. v. Moore (1886) L. R. 11 App. Cas. 350: this is a Scottish law case. At the time of this case, Scottish law on sale of goods and passing of property was different from English law, the rules regarding the passing of property being based on Civil Law principles - one reason why the case cannot be considered a precedent for this arbitration. Nor do there appear to have been any provisions in the contracts in question specifying when property was to pass in the machinery being manufactured by sub-contractors for the shipbuilders. The machinery in question had not in any event been completed, let alone delivered to the shipbuilders, when seized by the trustees in bankruptcy of the contractors. The shipbuilders' claim to the machinery was unsuccessful.

• Reid v. Macbeth & Gray [1904] A. C. 223: this is also a Scottish law case, but by the time of this case the English Sale of Goods Act of 1893 had been extended to be applied also in Scotland, so that it can be considered a precedent in English law. The shipbuilding contract in question contained a clause which purported to transfer title in all materials intended for the ship under construction, wherever situate. The buyers claimed title to some steel plates marked as intended for the ship, although at the material time they were lying at railway stations awaiting despatch. It was held that there was a single contract, for the sale and purchase of a "complete ship", and that the materials in question could not be regarded as having been appropriated to the ship, or "sold", so as to pass property in them.

• In Re Blyth Shipbuilding & Dry Docks Company Ltd. [1926] 24 Ll. L. Rep. 139: a clause in the shipbuilding contract in question provided that "from and after payment by the purchasers to the builders of the first instalment on account of the purchase price the vessel and all materials and things appropriated for her should thenceforth, subject to the lien of the builders for unpaid purchase money including extras, become and remain the absolute property of the purchasers". The issue was as to whether worked material lying in the yard ready to be incorporated into the hull of the vessel and approved by the purchasers' surveyor, had been "appropriated for her" within the meaning of cl. 6 so as to become the property of the purchasers. It was held that it had not, and that materials were only appropriated within the meaning of this clause where they "have been fitted into the vessel, or if they have not been completely fixed upon the vessel are substantially in situ, so that the removal of them would involve a going back upon the work to be done upon the vessel" (per Pollock M.R., p.515).

VI. Conclusions as to passing of property, as a matter of English law

161. In the present case, Claimant is a Special Purpose Vehicle (SPV) or Special Purpose Company (SPC), constituted especially to purchase an already constructed hull and transform it into a multi-purposed vessel according to the specifications of Respondents. The Contract does not establish advance payment guarantees, and the performance bonds provided for therein are limited and of relatively small amount. We accept Respondents' submission that it would be extraordinary, in these circumstances, if the Contract gave them no other security, whether by provision for the passing of property or otherwise, for the very substantial payments they were obliged to make thereunder in advance of Delivery.

162. It is clear from the Contract, construed as a whole, against the relevant background, that notwithstanding its description as Turnkey Contract and the turnkey basis provisions therein, the Parties intended property to pass as follows:

a) Property in the hull: as per Articles 19.1 and 19.2, and Article 4A (a):

19.1. Upon receipt of the original Bill of Sale of the hull, duly authenticated by the concerned Authorities and concerned representative/authority of [Respondents' home country], the hull shall become the absolute property of [Second Respondent].

19.2. When the Contractor delivers the Bill of Sale in respect of the hull to [Second Respondent], [Second Respondent] shall have the sole legal and beneficial title in and to the hull pursuant to the Bill of Sale free from all Encumbrances. Passing of the title on the hull to [Second Respondent] shall not, in any way, relieve the Contractor from fulfilling any of his obligations under this Contract.

4A (a) Delivery of an original Bill of Sale of the hull, duly authenticated by the concerned Authorities and the Embassy of [Respondents' home country]/concerned authority of [Respondent's home country]. The parties agree that the delivery of such original Bill of Sale will be in the form of Bill of Sale as set out in Annex I whereby the complete legal and beneficial title in the hull, free from all Encumbrances, shall pass to [Second Respondent].

b) Property in the Major Equipment: as per Articles 4C(c) and (D):

C. Payment no. 3: [Second Respondent] shall pay to the Contractor an amount equal to 18% (Eighteen Per Cent) of the Contract Price, i.e. [amount] subject to, and immediately after, the fulfilment by the Contractor of the following:

(...)

c) Delivery by the Contractor to [Second Respondent] of certifications by such third party(ies) manufacturers, suppliers, agents or Classification Society/Authority and confirmed by such third party as appointed by [Second Respondent] that 4 (four) main engines and 2 (two) generators (i.e. Emergency Generator and Harbour Generator) have been delivered, ex-works respective factory and tested, in accordance with … Rules of the Classification Authority/Society and the approved Technical Specifications of the Vessel and the complete legal and beneficial title in these engines and generators has unconditionally passed to [Second Respondent].

(...)

D. Payment no. 4: [Second Respondent] shall pay to the Contractor an amount equal to 15% (fifteen per cent) of the Contract Price, i.e. [amount] subject to fulfilment by the Contractor of the following:

Delivery by the Contractor to [Second Respondent] of all necessary certification(s) by such third party(ies) manufacturers, suppliers, agents or Classification Society/Authority and/or confirmed by the third party as appointed by [Second Respondent] that the "Major Equipment" are shipped to be delivered to the Vessel in accordance with the Contract and the complete legal and beneficial title in the Major Equipment has unconditionally passed to [Second Respondent] .

(c) Property in "all [other/ equipment items of the Vessel": upon "respective payment" to Claimant, which means payment for such equipment/items and not payment of the full Contract Price, according to Article 19.5 of the Contract.

163. The Sale of Goods Act 1979, already quoted above, allows the Parties to determine the time of transfer of property in a Contract, subject to the limitation, with respect to goods that were unascertained at the time the Contract was made (such as equipment to be manufactured and/or purchased from third party suppliers for installation on the Vessel) that property in unascertained goods cannot pass unless and until the goods are ascertained. The cases referred to above indicate that property in materials and equipment intended for installation on a ship under construction is unlikely to pass to the purchaser of the ship before such materials and equipment are installed on the ship and thereby unconditionally appropriated to the contract.

164. In our judgment, the property in the hull was transferred from Claimant to the First Respondent when the duly authenticated Bill of Sale was delivered to the First Respondent against payment of the first milestone payment, in accordance with the provisions of Articles 4A(a), 19.1, and 19.2 of the Contract, and as recorded in the text of the Bill of Sale:

(...)

1) The seller ([Claimant]) represents that it has in its absolute and undisputed ownership, use and possession a new build vessel known as hull …, which is consisted from [sic] a steel hull approx. 1,050 t purported to operate as a ship after the completion of certain works and the fixing and installation of certain machinery, fittings, and equipments so that to become a complete vessel (...).

2) The seller sells hereby and transfers the full ownership, use and possession of the hull unto the buyer ([Second Respondent]) under the following terms and conditions.

3) The price of the hull in premises has been agreed to the sum of [amount] which is considered to be the fair value of the hull.

(...)

5) By virtue of this present the buyer becomes the absolute and undisputed owner, user, and possessor of the hull, being entitled to dispose of and transfer its rights for any cause unto a third party.

(...)

165. Thereafter, in accordance with Article 19.6 of the Contract, Claimant remained in possession of the Vessel (which in this context clearly means the Vessel in course of construction, and not merely the finished Vessel), as contractor but not as owner, in order that it could complete construction in accordance with the Contract.

166. Property in the 4 main engines and the 2 generators passed to the Respondents, at the latest, upon their delivery to and installation on the Vessel, following payment of the third milestone payment, in accordance with Article 19.5 of the Contract and consistently with the Certificate issued by Claimant on 27 March 2007 (Exhibit R-22), irrevocably and unconditionally acknowledging and declaring that [Second Respondent] was "the sole, absolute, legal and beneficial owner" of the 4 main engine generators and 2 auxiliary generators. It is unnecessary for us to decide whether property passed at the time this Certificate was issued, when, as Claimant pointed out, these units were said to have been still under completion of testing, because it was (we understood) common ground that these units were all delivered to and installed on the Vessel. They were thereby unconditionally appropriated to the Vessel and to performance of the Contract, and property certainly passed no later than upon installation, in accordance with the intention of the Parties as expressed in the above-cited contractual provisions and Claimant's Certificate issued pursuant thereto, and consistently with the cases cited above and with Rule 5 of Section 18.

167. Likewise, property in the other items of Major Equipment passed to the Respondents, at the latest, upon their delivery to and installation on the Vessel, following payment of the fourth milestone payment, in accordance with Article 19.5 of the Contract, and consistently with various Certificates issued by the Claimant and third party suppliers, as follows:

Certification of invoices for payment [no. 4] by [Second Respondent]: "(...) Payment # 4 is in compliance with the terms and conditions of Contract, therefore payment may be released." (On May 30, 2007)

Certification from [supplier 1]: "We, [supplier 1], in the capacity of 'Supplier', do hereby declare that the two (2) electric motors for Z-drives and the two (2) electric motors for Bow thrusters intended for installation on the DP2 Multipurpose Support Vessel … (under [Respondents' country's] flag with registration …) are ready to be shipped on the 3th of May 2007." (On May 09, 2007)

Certification from [supplier 2]: "We, [supplier 2], in the capacity of 'Supplier', do hereby acknowledge and declare that one (1) main 60tm crane and two (2) provisional 8tm cranes are being supplied to [Claimant] for being installed on to the DP2 Multipurpose Support Vessel … (under [Respondents' country's] flag with registration …) and are scheduled to be shipped on the 30th of May 2007." (On May 16, 2007)

Certification from [shipbuilder]: "We, …, in the capacity of shipbuilder, do hereby declare that have finalized and are ready to deliver the fabrication, erection and welding of all 'moon pool' steel works on board the support vessel … (under [Respondents' country's] flag with registration …) in our shipyard facilities." (On May 08, 2007)

Certification from [supplier 3]: "We, [supplier 3], in the capacity of 'Supplier', do hereby severally, irrevocably and unconditionally acknowledge and declare that all air conditioning units including 6 chiller units and 46 fan coils of various capacity are being supplied to [Claimant], for being installed on to the DP2 Multipurpose Support Vessel … (under [Respondents' country's] flag with registration …) and are ready to be shipped on the 15th of May 2007." (On May 03, 2007).

Certification from [supplier 4]: "We, [supplier 4], in the capacity of 'Supplier', do hereby acknowledge that … air compressor is being supplied to [Claimant], for being installed on to the DP2 Multipurpose Support Vessel … and is ready to be shipped on the 30th of May 2007." (undated)

Certification from [supplier 5]: "We, [supplier 5], in the capacity of 'Supplier', do hereby severally, irrevocably and unconditionally acknowledge and declare that the delivery of two (2) reverse osmosis water maker units which are being supplied to [Claimant], for being installed on to the DP2 Multipurpose Support Vessel … (under [Respondents' country's] flag with registration …) is delayed due to the following parts delay by our supplier: 1) components for Membrane Vessels, and are scheduled to be delivered … on the 5th June 2007." (On May 15, 2007)

Certification from [supplier 6]: "We, [supplier 6], in the capacity of 'Supplier', do hereby acknowledge that one (1) … Helideck is being supplied to [Claimant], for being installed on to the DP2 Multipurpose Support Vessel … and is estimated delivery date ex-works is week 23 of 2007." (undated).

168. Upon installation these other items of Major Equipment were unconditionally appropriated to the Vessel and to performance of the Contract, and property passed in accordance with the intention of the Parties as expressed in Articles 40 and 19.5, and consistently with the cases cited above and with Rule 5 of Section 18.

169. Property in any other equipment which has been paid for out of the various payments made by Respondents, and has been delivered to and installed on the hull, and has thereby been unconditionally appropriated to the Contract and to Claimant's performance of its obligations thereunder, has, we conclude, also passed to Respondents, in accordance with Article 19.5 of the Contract and Rule 5 of Section 18. We are not, however, presently in a position to identify what, if any, other equipment would be covered by this conclusion.

170. Property can also pass, as a matter of English law, by accession. Only corporeal property can be subject to accession. Accession means that property in the accessory follows the property in the principal thing. In this context, an accessory is something that is affixed on/upon something else (the principal thing), and property may pass by accession where the degree of attachment is such that the attachment process cannot be reversed without damage being done to the principal or the accessory.

171. Property in any other equipment which has been affixed to the Vessel in such a way that the attachment process cannot be reversed without damage being done to the vessel or the equipment would therefore also have passed to Respondents, by accession, irrespective of whether or not it has been paid for by Respondents. However, we are not in a position to judge whether any equipment would fall within this category. Moreover, Respondents' rights to this equipment would be subject to any claims Claimant may have for payment or otherwise in respect thereof.

172. It is at least theoretically possible that Respondents have paid for equipment that has been delivered to the quayside or dockyard, but has not been delivered to or incorporated in the Vessel itself. On the basis of the authorities cited by the Parties, such equipment would not have been unconditionally appropriated to the Contract prior to installation on the Vessel: it would not constitute "equipment and other items of the Vessel" within the meaning of Article 19.6, until installed on and thereby part of the Vessel, and so, notwithstanding payment, property in such equipment would not have passed to Respondents or either of them.

173. In reaching the above conclusions as to the passing of property, we have taken account of Article 19.9, and of the contractual provisions regarding risk and insurance (as well as all the other contractual provisions relied on by the Parties). Article 19.9 is, as Respondents submitted, a sweep-up provision to ensure that insofar as there is anything in which title has not passed at the time of Delivery (as, for example, items to be provided at no cost as specified in Annex G), title in such items passes on Delivery. It does not preclude the passing of title in the hull and equipment paid for by Respondents prior to Delivery. As to the provisions relating to risk and insurance, the fact that the Vessel was, and remains, at Claimant's risk prior to Delivery, and that Claimant was obliged to arrange insurance cover, does not preclude the passing of property, which we find occurred as set out above. Indeed, Article 20.3, part of the Article dealing with insurance, makes express reference to the fact that from "Title Transfer" - which we find to be a reference to the definition of "Transfer of Title" in Article 1, and to refer (among other things) to the transfer of title to the hull in accordance with the provisions relating thereto - "[Second Respondent] will have received title in the hull".

174. Even if [First Respondent] had been in repudiatory breach of Contract in purporting to transfer assets/the Contract to [Second Respondent] - matters that the Arbitral Tribunal is not in position to determine in this Award - any such breach had not, by the time of transfer of ownership of any property as above, been accepted as terminating the Contract, therefore it cannot have prevented the passing of property under the Contract.

VII. Position under Brazilian law

175. In the light of the foregoing, the position under Brazilian law is irrelevant to the passing of property, which we have concluded is, by virtue of the express choice of English law in the Contract, governed exclusively by English law. However, in deference to the evidence of the two Professors, and the extensive submissions made by the Parties as to the position under Brazilian law, we have thought it right to express our conclusions as to what would have been the position had Brazilian law, as the lex situs, been applicable.

176. We begin by summarizing some of the evidence and contentions of the two Professors.

a) Professor [1]

177. Introduction. Professor [1]'s evidence is that the transfer of title in the hull and all the equipment related to it only takes place at the time of delivery or handover of the Vessel. In his understanding, according to Brazilian law, until then the assets in question belong to [Claimant], firstly because there was no delivery as provided for in the Contract and, secondly, because it is a turnkey contract. Thirdly, in accordance with the doctrine of specification, between the time of the signing of the Contract and the delivery of the Vessel, in consideration of the fact that [Claimant] has been preparing the Vessel for delivery, the property belongs to [Claimant] up until delivery, even if the hull was not [Claimant]'s but belonged to the Respondent.

178. Possessory covenant. In his opinion, according to Brazilian law, a possessory covenant requires two simultaneous acts of will. The first act is the loss of ownership by the previous owner and its transfer to the new owner. Therefore, for the previous owner to continue in physical contact with the asset, there is a need for a second act, this time by the new owner, authorizing the previous owner to remain in possession of the property.

179. In Professor [1]'s view, Article 19.6 of the Contract does not represent any of the two acts required. A unilateral declaration in this regard, such as the Bill of Sale, is not sufficient. According to Brazilian law it is important that there is a bilateral declaration, by both sides, whereby the previous owner accepts that it has lost power as owner over the asset, and the new owner authorizes the previous owner to retain possession.

180. He adds that according to Brazilian law it is not possible to accept a Bill of Sale as a constituto possessório . First, because a Bill of Sale does not express these two acts of will, or these two ideas; second, because a Bill of Sale is not bilateral, it is not an agreement; it is a declaration by the constructor only; and third, because there is no concept of Bill of Sale in Brazilian law.

181. Constituto possessório must be written. Even if the sole paragraph of Article 1.267 of the Brazilian Civil Code does not require a written document, the courts and the authors all agree that constituto possessório must be written. Constituto possessório occurs when, at the moment of the tradição or tradition, the new owner divests himself of the possessory situation and passes to someone else the possession. A possessory covenant is an exception to the general rule that the passing of title occurs upon physical delivery.

182. Article 19.6 of the Contract provides for a future occurrence. For it to be regarded as a possessory covenant, it would be indispensable for the acts of will to be manifest at the time of the delivery - which is a fictional delivery. Article 19.6 makes reference to the transfer of ownership of the hull, but not to any transfer of possession of the hull, which are totally different things.

183. If we could tacitly extract from Articles 19.1, 19.6 and 19.5 the automatic and immediate transfer of property, on the date of a certain payment, this would mean, under Brazilian law, that the contract itself could transfer ownership. This is not possible, and this is not merely a formal question, it is a matter of public policy.

184. Corroborating those arguments, the agreement concluded between the Parties is a turnkey contract, which is inconsistent with the transferring of title before delivery.

185. In the Brazilian Civil Code there is no special provision for turnkey contracts. It can be considered as a type of enterprise or material and mixed enterprise. According to Brazilian Civil Code rules, in those contracts, the main obligation of the contractor is to deliver the result of his work. Therefore, the ownership is transferred when the contract is fulfilled.

186. Specification. Especifição is very near to acessão, it is the same principle. In the case of acessão, there is the adding of some equipment to something, and in the case of especifição there is the creation of something new, as in the case of a vessel. In either of these cases, the ownership between the signing of the agreement and delivery of the completed object remains with the builder (in the present case, with Claimant).

187. Registration. Articles 2, 4 and 9B of Law no. 7.652, of 1988, refer to the registration of ships. The aim of this registration is similar to that of the former system in England, just to publicise, not to transfer ownership. And, because of that, the ownership is not transferred with the registration of the ship.

b) Professor [2]

188. Possessory covenant. Professor [2] regards the provisions of the Contract as being entirely compatible with the possessory covenant under Brazilian law. In Professor [2]'s opinion, Articles 19.1 and 19.6 are the articulation of tradição ficta and constituto possessório . As a constituto possessório is clearly established, tradição ficta fits in perfectly with the sole paragraph of article 1.267 of the Civil Code.

189. Professor [2] clarifies that in Brazilian law, there is the so-called tradição real or physical delivery, in article 1.267, and there is the so-called tradição ficta or fictional delivery, in sole paragraph article 1.267. The fictional tradition has another name in Brazilian law. It is called symbolical, virtual or juridical tradition. But there is a common point among all these denominations, which is that there is not a physical delivery.

190. Fictional delivery takes place when there is not a practical situation to effect a physical movement of goods, which could occur according to contractual provisions 19.1 and 19.6. There is a Bill of Sale issued by Claimant which is regarded as an invoice. Professor [2] agrees that there was a completed sale of the hull on August 29, 2006, upon receipt of the original Bill of Sale of the hull. When the payment was made, there was a fictional tradition. The Bill of Sale is a document that states that there was a payment and a sale.

191. In Professor [2]'s opinion, the Contract was signed and the constituto possessório was possible according to its Article 19.6. Therefore, on delivery of the Bill of Sale there were two simultaneous juridical effects: one, the change of physical possession of Claimant, that remained in physical possession (forces direct in Portuguese), and two the transfer of mediate possession (or forces indirect) to the new owner. Respondents became the owner of the hull and equipments when they paid for those. According to Brazilian law, therefore, the Bill of Sale is a declaration of what took place.

192. Professor [2] understands that when clause 19.6 says physical possession it means that Claimant stays in physical possession - but not as owner: it must remain in physical possession in order to complete the construction.

193. Contract. Professor [2] considers that Articles 19.9, 25 and other provisions of the Contract mean that the Delivery is not going to transfer the property, but the delivery must be the object of acceptance on oath according with Article 615 of the Brazilian Civil Code. This acceptance or rejection concerns the understanding that it has been well constructed or a partial or total rejection for a re-doing of the work.

194. Specification. Professor [2] believes that especifição cannot apply on the facts of the present case. First, because all of the materials used came to belong to Respondents, according to Articles 19.1 and 19.5. In addition, one of the requirements of the especifição in Brazilian law is that the person invoking the doctrine shall have had the intention of working on the materials in question for itself, and in the present case there was no such intention on the part of Claimant. It is evident that Claimant cannot avail itself of the doctrine in its capacity as a contractor, where its principal (or basic) obligation was to carry out or to execute the work for Respondents.

195. Registration. Professor [2] agrees with Professor [1] that registration serves a purpose in relation to third parties. But he states that the ownership of the hull and of the equipment which was placed on it was transferred according to Articles 19.1 and 19.6 of the Contract, in the light of the delivery of the Bill of Sale.

196. Accessio. In his complementary study of February 25, 2009, Professor [2] indicates that Brazilian law recognizes the accession principle, and underlines that it is not necessary for the accessory and the principal thing to be physically connected, because the accessoryship relation is dictated by law. In the Brazilian Civil Code reference to accession can be found in Articles 92, 233, 287, 364, 384, 1932, 1712 and 1937.

197. Brazilian civil law establishes, in general terms, what is known as "property types reciprocally considered", which are nothing more than the property types that bear an accessoryship relation among themselves. According to the technical classification of this property, the effects attributed by law shall apply, to a greater or lesser extent, the principle of accessoryship.

198. In the scope of maritime law, there is a specific provision on this matter. According to Art. 468 of the Commercial Code, it is lawful to consider, regarding the ship, the hull as the principal property and the other chattels which have to be placed thereon, as accessory. All the property that confers to the hull the functionality of a ship is regarded as accessory property, regardless of affixation.

199. As far as real estate is concerned, everything that is incorporated into the soil or is permanently added thereto is accessory property. By analogy, the ship's hull should be considered, in maritime law, something equivalent to the soil. This analogy is consistent - to the extent that the hull is regarded as the principal property, with all other items likely to be added thereto for the purpose of carrying out the ship's function being accessory property - with the qualification that the hull's accessories can even be temporarily separated from the hull.

c) Tribunal's conclusions on Brazilian law

200. In light of the evidence of the two Professors, and the Parties' respective submissions on Brazilian law, we find that under Brazilian law, property in the hull, in the Major Equipment, and in any other equipment/items which have been paid for by Respondents and installed on the Vessel in course of construction, would have passed by the form of fictional delivery (tradição ficta) known as constituto possessório in accordance with Article 1.267, Sole Paragraph, of the Brazilian Civil Code:

(a) In the hull: on delivery of the Bill of Sale;

(b) In the Major Equipment: upon installation following payment of Third and Fourth stage payments;

(c) In other equipment/items, on installation following respective payment.

201. In the case of the hull, on delivery of the Bill of Sale, and given that Claimant was allowed to remain in possession, pursuant to Article 19.6 of the Contract, in order to continue the works on the Vessel, there were two simultaneous atos jurídicos, namely:

(a) Transfer of title and (indirect) possession from Claimant to Respondents, as clearly expressed in the Bill of Sale;

(b) Claimant being allowed to remain in (direct or immediate) possession to continue work - giving rise to change in character of Claimant's possession, from possession as owner to direct possession as contractor, Respondents having indirect possession as owner.

202. This seems to be a classic case of constituto possessório . The same principles apply in case of Major Equipment and other equipment/items that have been installed and paid for.

203. In the decision on the Special Appeal no. 173183-TO (REG. 98 313923) (Respondents' Exhibit 28), the honourable Chief Justice Ruy Rosado de Aguiar (reporting judge) decides:

1. The constitutum possessorium is a means of attaining possession: "Constitutum possessorium (qui constituit se possidere alieno nomine) is the conversion of possession into detention or of indirect possession into direct possession without any exterior action attesting to any change in the relationship between the person and the thing. It is a form of conventional transfer of the possession by change in the cause of the possessory relationship, phenomenon that operates upon two simultaneous legal acts: (a) a transfer of the possession of a former possession [sc., possessor] to a new possessor (sale, for instance); (b) another of conservation of possession by the former possessor in the name of a new purchaser (reserve of usufruct, lease, etc.). Possessory relationship alien to it, but lowered in terms of reality to the class of simple detention or direct possession in the legal sense. It is the acquisition of possession without tradition when a third party (if it has possession in the name of the seller) or the seller itself remains in possession of the thing by a special title) such as deposit, rent, lease, management, guardianship, not mattering whether or not the possession is direct or indirect." (quoting Tito Fugencio).

204. Brazilian law also recognizes acquisition of title by accession. In Brazil, the principle of accession means that the accessory follows the principal property. The accessory does not have a function without the main property.

205. In the present case, the equipment affixed on the hull does not have the same function if separate from the hull - they cannot perform the function for which they were designed without being affixed to it. Therefore, if any parts or items of equipment were bought to be affixed on the hull to make a complete DP2 vessel, they can be considered accessory under Brazilian law. Respondents are entitled to property in the accessory equipment already affixed on the hull and paid for by Respondents, and the same can, as a matter of Brazilian law, be concluded for the equipment already paid for by Respondents and not yet affixed on the hull. However, as a matter of Brazilian law, equipment not yet paid by Respondents, whether affixed to the hull or not, even if is considered accessory property to the hull, must be paid for by Respondents to Claimant before the property in that equipment can be transmitted to Respondents.

206. The Arbitral Tribunal rejects Claimant's argument that it acquired title by especificação. For the reasons given by Professor [2], that principle would have been inapplicable here, even if Brazilian law was applicable to the transfer of property, because the materials were incorporated in the hull, which following delivery of the Bill of Sale belonged to Respondents, and because the Claimant was working on the hull as a contractor, and not for its own benefit.

VIII. Estoppel by representation

207. In the light of the Tribunal's decisions above as to passing of property, Respondents have no need to invoke the alleged estoppels by representation with reference to the passing of property. However, for completeness the Tribunal does not accept Respondents' arguments based on estoppel by representation, for the following reasons, briefly summarized:

(a) Reliance on any pre-contractual representation of fact is excluded by Article 40 of the Contract;

(b) In any event, the representations relied on are not representations of fact;

(c) And the alleged post-contractual representations do not add anything to the contractual effect of the documents in which they are contained.

IX. Remedies

208. In the light of the above, Respondents are entitled to the Declarations they seek with regard to the passing of property in the hull and in all the Major Equipment.

209. Respondents are also entitled to a Declaration that property in any other equipment which has been paid for out of the various payments made by Respondents, and has been delivered to and installed on the Vessel, and has thereby been unconditionally appropriated to the Contract and to Claimant's performance of its obligations thereunder, has passed to Respondents.

210. Respondents are further entitled to a Declaration that items of equipment affixed to the Vessel in the course of construction, which cannot be removed without doing damage to the Vessel or to the equipment, has passed to them by accession, irrespective of whether payment has been made for such items or not, but without prejudice to any claims Claimant may have for payment or otherwise in the form of damages.

211. Neither we, nor, as we understand it, Respondents, are presently in a position to identify what, if any, other equipment would be covered by the Declarations referred to in the previous two paragraphs. Respondents may be entitled to a disclosure order to assist in the ascertainment of any such equipment. However, before attempting to formulate any such disclosure order, we consider that it is sensible to allow the Parties time to consider the implications of this Award, and whether such a disclosure order would advance matters, having regard, among other things, to the potential difficulties of ascertaining what equipment (other than the hull, the Major Steel Works, and the Major Equipment), has been purchased with the money advanced by Respondents. Respondents are, of course, nonetheless at liberty to make an application for such a disclosure order in the light of this Award, if so advised.

212. Respondents also sought an order for delivery up of the hull and the Major Equipment. We do not however, think it would be appropriate, at present, to make any such order. The Parties may (and we very much hope will) be able to agree a way forward in the light of our decisions in this Award.

Moreover, the necessity for and appropriateness of an order for delivery up has not been fully canvassed in the Parties' respective submissions, and we bear in mind also that the Parties have other claims and counterclaims, including a damages claim for at least [amount] advanced by Claimant, which we have not addressed at this stage of the arbitration proceedings. Respondents are, of course, at liberty to pursue such a claim tor delivery up if so advised, but we would expect to receive further submissions and evidence before adjudicating on any such claim. In particular, we would invite further submissions with respect to Claimant's claim for a lien, in the light of Respondents' submissions that no contractual, statutory or common law lien arises in the circumstances of this case.

213. Subject to any further submissions by the Parties on the claims for delivery up and lien, we would not expect the Vessel to be removed from the shipyard and the jurisdiction of the Brazilian courts pending issuance of our Final Award. Any Party is of course entitled to apply to this Tribunal for interim measures if deemed necessary and appropriate.

X. Dispositive award

214. Accordingly, the tribunal adjudges, declares and awards as follows:

That either the First or Second Respondent is the owner of:

a) The hull of the DP2 multipurpose support Vessel … (under [Respondents' country's] flag with registration … (and formerly designated as hull …);

b) All items of Major Equipment delivered to and installed on the Vessel;

c) All other items of equipment which have been paid for out of the various payments made by Respondents, and have been delivered to and installed on the Vessel; and

d) Any other items of equipment affixed to the Vessel in course of construction which cannot be removed without doing damage to the Vessel or the equipment, irrespective of whether payment has been made for such items or not (this Declaration being without prejudice to any claims Claimant may have for payment for such equipment or otherwise).

215. The Arbitral Tribunal closes the proceedings in respect of the issues dealt with in this Partial Award.

216. We reserve to ourselves the jurisdiction to hear and determine all other disputes and issues the subject of these arbitration proceedings (as mentioned in the Terms of Reference, and in paragraphs 87, 94 and 121, and not decided in this Award), including issues as to liability for, and the costs of, the Hearing to determine the ownership issues, and of this Award, and to issue a further Award or Awards in respect thereof.'

---

---

1
Editor's note: The original includes here the name of the Second Respondent, which would appear to be a mistake.

---