'1. This Final Award fully incorporates the Partial Award on Ownership Issues ("the Partial Award") rendered by the Arbitral Tribunal, dated 4 June 2009.

I. Introduction

2. This arbitration is conducted under the auspices and supervision of the International Court of Arbitration of the International Chamber of Commerce ("ICC Court"). ...

I.A. Parties to arbitration and their representatives

3. The Claimant is ...

4. Claimant was initially represented in this arbitration by ... Claimant's representation was then transferred to ... On 13 December 2010, [counsel] notified the Arbitral Tribunal, Respondents, and the ICC Secretariat that his firm would no longer represent Claimant in this arbitration. After that, no new counsel was appointed by Claimant.

5. The Respondents are ...

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

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

I.B. Contract, alleged Novation and Parties' Agreement to arbitrate

I.B.(1) Contract and arbitration agreement contained therein

8. On 20 August 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".

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.

I.B.(2) Alleged novation and submission agreement of 12 May 2008 conferring jurisdiction to decide disputes arising out of the alleged novation

10. It is alleged by Respondents that First Respondent, Second Respondent and Claimant executed a Tripartite Agreement dated 21 April 2007 ("Tripartite Agreement"); and that by this agreement all rights, duties, obligations and entitlements were transferred from First Respondent to Second Respondent, consisting in a novation of the Contract.

11. Claimant denies the validity of the alleged Tripartite Agreement and denies that any such novation occurred.

12. On 12 May 2008, the Parties jointly executed a Submission Agreement providing that: "all disputes between [Claimant] and [Second Respondent] will be finally settled in the Arbitration", and thereby conferring jurisdiction upon this Arbitral Tribunal to decide the issues as to the validity and effect of the alleged Tripartite Agreement.

I.C. Constitution of the Arbitral Tribunal

13. In its Request for Arbitration dated 14 February 2008, Claimant nominated as co-arbitrator ...

14. In a Request for Extension of Time for filing its Answer, dated 19 March 2008, Respondents nominated as co-arbitrator ...

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

16. By the execution of the Terms of Reference (see paragraphs 26 and 29 below), the Arbitrators confirmed the acceptance of their appointment and the Parties confirmed that they had no grounds for objecting to the Arbitrators.

II. The arbitration procedure

17. The proceedings have been conducted in accordance with the ICC Rules of Arbitration, in force since January 1998.

18. This arbitration procedure was bifurcated into two Phases. In the first phase the Arbitral Tribunal dealt with ownership issues and the Partial Award was issued, dated 4 June 2009. In the second and final phase, resulting in this Final Award, the Arbitral Tribunal has dealt with all remaining issues.

19. Set forth below is a summary of the principal procedural developments in this arbitration. This is only a summary and not intended to be exhaustive.

II.A. Phase I of the arbitration procedure

20. On 15 February 2008, the Claimant, [Claimant], filed a Request for Arbitration against [First Respondent] with the Secretariat of the International Court of Arbitration of the International Chamber of Commerce (hereinafter "ICC"). Claimant requested an award declaring it to be the rightful owner of the vessel and all its equipment; declaring the Contract terminated; and declaring [Claimant] discharged of any further obligations it might have had under the Contract. It further requested that [First Respondent] and its successors be found liable for numerous breaches of the Contract and to be ordered to pay [Claimant] no less than [amount] in damages.

21. On 19 March 2008, Respondents nominated their co-arbitrator and requested an extension of time for the filing of their Answer to the Request for Arbitration and Counterclaim. On 22 and 23 April, the Parties exchanged correspondence regarding the Submission Agreement mentioned in paragraph 12 above and the extension of time for the filing of the Answer.

22. The Request for Arbitration was amended on 14 May 2008 by Claimant to add [Second Respondent] as Second Respondent. In the same document, Claimant reported that the Parties agreed on a new time extension for Respondents to file their Answer and Counterclaim.

23. Respondents filed the Answer to the Request for Arbitration, dated 16 May 2008, requesting the bifurcation of the arbitration, in order 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. Concerning the ownership of the vessel, Respondents contended that they had already paid 4 instalments of the Contract Price for the construction of the vessel, and that the delivery of the Bill of Sale upon payment of the first instalment had transferred legal ownership of the hull to Respondents.

Respondents requested the Arbitral Tribunal to award declarations that (i) Claimant is bound by the terms of the Contract, (ii) the Tripartite Agreement is valid and enforceable, (iii) Second Respondent has replaced First Respondent under the Contract, and (iv) the Tripartite Agreement extinguished all claims that Claimant may have against First Respondent. Respondents also requested 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.

24. On the same date, Respondents filed a Counterclaim requesting the Arbitral Tribunal to award the following relief: (a) By way of Interim Relief: (i) to authorize Respondents immediately to continue the construction of the vessel provided that in the event of a final award in favour of Respondents, Claimant should be 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 should be ordered to reimburse Respondents for all amounts disbursed for the payment of the outstanding debts; (v) to order Claimant immediately to release the hull by paying the due amount, so as to ensure that it and the equipment were free from an existing court attachment; (vi) to order Claimant immediately to 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 might 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 was 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 had incurred; (iv) to order Claimant to replace all equipment and materials that Claimant had 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 had already paid or might 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 related 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 might deem necessary.

25. On 19 June 2008, Claimant requested an extension of time for the filing of its Reply to Counterclaim, which was filed on 07 July. Claimant agreed with the bifurcation of the arbitration for the issue of ownership to be addressed first, and requested the Arbitral Tribunal: (i) to reject Respondents' requests for interim relief; (ii) to dismiss Respondents' counterclaims; (iii) to direct Respondents to pay all of the costs and expenses of Claimant in connection with its Response to the Counterclaim, inclusive of attorneys' fees; (iv) to award such further relief as the Arbitral Tribunal might deem just and proper.

26. On 11 July 2008, the ICC Court transmitted the file to the Arbitral Tribunal, in accordance with Article 13 of the ICC Rules of Arbitration. In its letter of 11 August, the ICC Court informed the Arbitral Tribunal about a time extension for establishing the Terms of Reference (hereinafter "ToR") to 31 October 2008. On 25 August, the Arbitral Tribunal circulated a draft of the ToR which was commented on by the Parties on 29 August. In response to the Arbitral Tribunal's request of 01 and 02 September, the Parties presented information on the total amount of their quantified claims and a proposal for the Procedural Timetable.

27. On 09 September 2008, Respondents referred to the request for interim relief made in the Counterclaim to present a proposal for the immediate continuation of the construction of the vessel. Claimant expressed its disagreement with this proposal on 12 September.

28. On 11 September 2008, the Arbitral Tribunal invited the Parties to comment on its decision to set the hearings on ownership issues in 2008 and on the draft of the ToR, which was done by the Parties from 15 to 22 September 2008.

29. From 22 September to 30 September 2008, the Parties and Arbitrators signed the ToR. This document settled the following issues to be determined in this arbitration (paragraph F of the ToR): (a) issues as to the ownership of the hull and its equipment and other materials to be installed upon that hull; (b) whether Claimant, or Respondents or any of them, were in breach of Contract; (c) whether the Contract was novated; (d) whether the Contract was validly terminated by Claimant, or by the Respondents or any of them; (e) what if any damages are payable by any party for any breaches of Contract which may be proved.

30. On 2 October 2010, Claimant requested the Arbitral Tribunal's confirmation that Paragraph I of the ToR (stating that English law is the substantive law of the Contract) did not preclude it from raising the position that some issues are not governed by English law. This was confirmed by the Arbitral Tribunal on the following day.

31. The Parties and the Arbitral Tribunal held a conference call on 8 October 2010, to discuss the Procedural Timetable. Considering that both Parties agreed on the bifurcation of the award, so that the ownership issues could be settled before the other disputes and claims, the Arbitral Tribunal gave directions for the exchange of briefs and for a hearing on ownership issues.

32. Accordingly, Claimant filed its submission on ownership and possession on 14 November 2008, asking the Arbitral Tribunal: (i) to declare it to be the sole holder of legal title to all the property Claimant purchased for the subject of the Contract and that Respondents had 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 had validly terminated the Contract by reason of the repudiatory breach committed by Respondents; (v) to declare that, in the alternative, Claimant had 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 Arbitral Tribunal might deem appropriate.

33. Respondents' submission on ownership of the partly completed vessel was filed on 19 December 2008. Respondents requested the Arbitral Tribunal (i) to declare that Claimant was estopped from denying the title of Respondents to all of the items paid by means of the [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 had 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 amount of the first four instalments]; (iv) further or alternatively, for a declaration that Claimant was 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 were the owners of any equipment purchased for the vessel up to the value of [the amount of the first four instalments]; (vi) further or alternatively, for a declaration that Respondents were 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] had no lien over the vessel or anything in which it might 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 Arbitral Tribunal should deem appropriate.

34. On 27 October 2008, the Arbitral Tribunal asked the Parties to make the hearing arrangements, which was reiterated on 9 December. On 15 December, Claimant informed that the Parties had made the arrangements.

35. On 22 December 2008, the Arbitral Tribunal asked the Parties for the number of witnesses to be heard at the hearings, which was provided by the Parties on 29 December.

36. The hearing on ownership issues took place [in] January 2009 ... On that occasion, 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.

37. On 29 January 2009, Respondents presented a Supplemental Submission on English law cases dealing with title. On 10 February, Claimant requested additional time for the presentation of Supplementary briefs on Brazilian law, which was granted by the Arbitral Tribunal. On 12 February, Respondents presented a submission in this respect.

38. The Parties submitted their post-hearing briefs on ownership issues on 26 February 2009. On the same date, Respondents also presented a summary of the ongoing lawsuits and proceedings in Brazil, and a note on accession under English and Brazilian law (along with Prof. [2]'s opinion on that issue).

39. The Parties' submissions on ownership issues, their position and arguments presented in the hearing, as well as the post-hearing briefs submitted on 26 February 2009, were summarized in paragraphs 72 to 141 of the Partial Award. The Arbitral Tribunal refers to these paragraphs as if they were transcribed herein.

II.A.(i) Partial Award on Ownership Issues

40. The Arbitral Tribunal rendered the Partial Award on 4 June 2009, which was notified to the Parties ...

41. In its Award, the Arbitral Tribunal first held that the choice of law made by the Parties was for the substantive law of England, and not its conflict of law rules, which was clear from Article 34.1 of the Contract. It thus found it 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 (paragraphs 142 to 145 of the Partial Award).

42. In the dispositive award (para. 214), transcribed below, the Arbitral Tribunal adjudged, declared and awarded 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).

43. The Arbitral Tribunal closed the proceedings in respect of the issues dealt with in the Partial Award, and reserved the jurisdiction to hear and determine all other disputes and issues the subject of these arbitration proceedings.

II.B. Phase II of the arbitration procedure - after the issuance of the Partial Award

44. From 29 May to 10 June 2009 the Parties exchanged correspondence regarding the renewal of the drawback, a Brazilian tax regime from which the construction of the vessel benefits. ... Respondents informed the Arbitral Tribunal that the Brazilian lawyers representing [Claimant] and [Second Respondent] agreed to wait for a decision at the administrative level about the request for extension of the drawback.

45. The Arbitral Tribunal issued a Procedural Order on 26 June 2009 inviting the Parties to send proposals for the calendar of proceedings to be established after the issuance of the Partial Award. It also suggested ... the place for eventual hearings, and mentioned the issues to be contemplated by the Parties in their submissions: (1) whether the Claimant, or the Respondents or any of them, were in breach of contract; (2) whether the Contract had been novated (as alleged by the Respondents); (3) whether the Contract had been validly terminated by the Claimant, or by the Respondents or any of them; (4) what if any damages were payable by any party for any breaches of contract which may be proved; (5) what if any amounts were to be paid to Claimant regarding the works in the ship.

46. On 10 July 2009, Respondents, referring to the Partial Award, expressed their intention to remove from Brazil the hull, and other equipment to which they were entitled, to complete the construction of the vessel in [their country]. In order to discuss these issues with Claimant, Respondents suggested that the Parties agree on an extension of the period for interpretation of the Partial Award under Article 29.2 of the ICC Rules. Finally, Respondents informed the Arbitral Tribunal that they were conducting a survey on the vessel so as to identify how far construction had proceeded, what equipment had been installed on the vessel, and what equipment had not. On 15 July, Claimant disagreed with the suggested extension of the period for interpretation of the Partial Award, and suggested that all such issues be included within a broader discussion of a way forward for the arbitration.

47. On 27 July 2009, the Arbitral Tribunal asked the Parties for a response to the Procedural Order of 26 June. Following that, on 29 July Claimant informed the Arbitral Tribunal, in accordance with paragraph 212 of the Partial Award, that the Parties had engaged in discussions in order to develop an agreement upon the course of action for the arbitration. It also mentioned the dates when its attorney would be available for a further hearing.

48. Respondents confirmed on 5 August 2009 that the Parties were discussing the outstanding matters in the arbitration. Without prejudice to the ongoing negotiations, Respondents wished to continue the work on the vessel, and asked for an award for delivery up of the hull and Major Equipment (as defined in Article 1 of the Contract and in page 22 of the Partial Award). Regarding the rest of the equipment which had not been attached to the hull, the issue of a potential lien over such items had been foreshadowed in paragraphs 98 to 103 of Respondents' Outline Submission on Ownership. They suggested dates for the presentation of Claimant's submission on its claim of a lien and for their reply thereto.

49. On 6 August 2009, Claimant alleged it had a lien over all equipment (the hull, the Major Equipment and all other equipment) as security for its claims for extra work it performed under the direction of Respondents (paragraphs 67 and 68 of its Memorial). Claimant pointed out that Respondents' definition of Major Equipment corresponded to the definition in the Contract; however, it also pointed out that the Partial Award was expressly limited to Respondent's ownership of "all items of Major Equipment delivered to and installed on the Vessel" - para. 214(b). It finally clarified that the only portions of the Major Equipment delivered to and installed on the Vessel were the foundations for the Major Equipment, with the remainder of this equipment being stored in Brazil and elsewhere. It submitted that the ownership of the Major Equipment not delivered to and installed on the vessel remained with Claimant.

Claimant further argued that the issue of ownership of the two classes of property identified by the Arbitral Tribunal in paragraphs 209 and 210 of the Partial Award remained open; at least in regards to para. 210, this issue had to be resolved prior to that of the lien. Claimant was waiting for a response regarding what equipment might fall into the category identified by the Arbitral Tribunal in paragraph 210 of the Partial Award. Until then, it would not be efficient to set a briefing schedule on the lien issue as it would not resolve the issues impeding the movement of the hull.

50. In its Procedural Order of 14 August 2009, the Arbitral Tribunal invited the Parties to present submissions on lien by 1 September, and their replies by 18 September 2009; and suggested that hearings should be held on a suitable date in December 2009 or January 2010.

51. On 18 August 2009, Claimant informed the Arbitral Tribunal that it was not in a position to meet this suggested briefing schedule on the issue of [Claimant]'s lien, and suggested this matter to be deferred until a later date. It requested clarification on the scope of the next phase of the proceedings and referred to the remaining issues to be addressed. It mentioned that it was also waiting for a response regarding the items of equipment which might fall within the categories of equipment identified in paras. 209 and 210 of the Partial Award.

Claimant reiterated its allegations regarding Respondents' request for an award to deliver up the hull and the Major Equipment, noting that some of the Major Equipment had not been delivered to the shipyard and virtually none of it had been installed on the hull; the title to these undelivered, uninstalled items of Major Equipment remained, so Claimant submitted, with Claimant, and therefore its claim for a lien only applied to the items of Major Equipment as to which the Partial Award found title to have passed to Respondents.

52. The Arbitral Tribunal issued a Procedural Order on 24 August 2009 communicating that a procedural hearing by telephone would be set to define the next phase of the arbitration and to evaluate Respondents' request for delivery up of the hull and the Major Equipment and Claimant's claim of a lien. Claimant notified the Arbitral Tribunal of its availability for the hearing on 25 August.

53. On 25 August 2009, Respondents reiterated their request for delivery up of the hull and the Major Equipment, and requested the Arbitral Tribunal's confirmation that all items of the Major Equipment were their property. They submitted that the lien issue was the only issue that should hinder Respondents' request; they suggested that the Parties should present written submissions regarding these subjects and also to embark on Phase II of the arbitration. Respondents confirmed their availability for the procedural hearing via telephone.

54. On 26 August 2009, the Arbitral Tribunal set the procedural hearing for 2 September, and informed the Parties of the points to be covered by it, inviting the Parties to advance comments in writing.

55. On 31 August 2009, Claimant clarified the status of the construction of the vessel, referring to Exhibit C115, and submitted the witness statement of [Mr B]. He stated that the only item of the Major Equipment delivered to and installed on the vessel was a portion of the moon pool identified as item (k) in the definition of "Major Equipment" in Article 1 of the Contract. According to him, the remainder of the items were either at the premises of the supplier, or in storage at the shipyard pending payment of any balance due the supplier and the completion of work necessary for their delivery to and installation on the vessel. On 1 September, Respondents suggested a timetable for Phase II and submitted that the lien and delivery up issues should run in parallel with the initial stages of Phase II. Further to [Mr B's] statement, Claimant submitted that it could only deliver the items of the Major Equipment to [Second Respondent] if it had the title to them; if not, [Second Respondent] would have to deal with the original suppliers. It further stated that depending on the outcome of Phase II, a Phase III might be necessary (to deal with quantum implications of the Arbitral Tribunal's ruling on liability, and costs).

56. The procedural hearing took place, by telephone conference call, on 2 September 2009. Following that, the Arbitral Tribunal invited the Parties to present the draft of the Procedural Order reflecting the discussions therein and addressing the Phase II timetable. On 10 September, Respondents presented the agreed scope and timetable for resolution of the issue of delivery up of the hull and Major Equipment , and informed that the Parties were unable to reach an agreement on the Phase II timetable. Concerning [Mr B's] statement, Respondents confirmed that it was broadly correct in the description of the state of construction of the vessel and stated that: (i) none of the items of Major Equipment (as defined in the Contract) had been attached to the hull; (ii) a number of important items were still in possession of [two suppliers], pending outstanding payments to these suppliers; (iii) a number of other items had yet to be ordered; (iv) the moon pool was no more than 60% complete.

57. In response to the Arbitral Tribunal's communication, Claimant stated that it agreed with Respondents' suggestions on the issues to be addressed by the Parties in the submissions to bring Phase I to a close.

58. On 5 October 2009 the Arbitral Tribunal issued a Procedural Order containing the referred issues, fixing the dates for the Parties to present their submissions and asking the Parties to present their proposal for the Phase II timetable. Claimant presented its suggestion for the Phase II timetable on 9 October.

59. On 13 October 2009, Respondents referred to settlement discussions in which the Parties were then involved, in support of a request on behalf of both Parties for the suspension of the timetable for a month. The Arbitral Tribunal granted the Parties' joint request on 14 October. On 24 November, the Arbitral Tribunal asked the Parties to inform it whether they needed more time to continue with their settlement negotiations; otherwise, it asked the Parties to inform the Arbitral Tribunal of the available dates for an eventual hearing to determine the remaining Phase I issues and to present proposals for the Phase II timetable. A further extension of the suspension of the proceedings to enable the Parties to reach a final settlement was requested on 30 November and granted by the Arbitral Tribunal on 1 December.

60. On 5 January 2010, Respondents informed the Arbitral Tribunal that the settlement negotiations had come to a final stage and that the Parties had agreed to request the Arbitral Tribunal for another extension of the suspension of the proceedings. This request was granted by the Arbitral Tribunal on 6 January.

61. However, Respondents submitted on 22 January 2010 that the suspension had elapsed without the Parties agreeing on the final terms of settlement, and requested the Arbitral Tribunal to proceed with the arbitration, seeking clarification as to whether the Phase II timetable remained in force. In its Procedural Order of 1 February, the Arbitral Tribunal fixed the dates for the Parties' written submissions, and invited the Parties to agree on a date for a further Phase I oral hearing ..., and inform the Arbitral Tribunal of such date.

62. On 5 February 2010, Claimant informed the Arbitral Tribunal of its available dates for the ... hearing and on 11 February the Arbitral Tribunal requested an answer from Respondents, which was given on 12 February.

63. On 16 February 2010, Respondents apologized for a short delay in presenting their written submissions concerning the issues set out in the Procedural Order of 5 October 2009, and mentioned they would not object to an extension being granted to Claimant, considering the impact of this delay to the time afforded to it to respond the submissions.

64. Respondents' supplementary submission on ownership was presented on 17 February 2010. This contained a request for a disclosure order of Claimant's accounts connected to the Contract.

65. On 18 February 2010, the Arbitral Tribunal issued a Procedural Order informing the Parties that the further Phase I oral hearing would take place on 30 March ... and asking the Parties to inform the Arbitral Tribunal about the arrangements for the hearing by 8 March. The Arbitral Tribunal granted Claimant an extension of time for the presentation of its written submissions.

66. In its Procedural Order of 24 February 2010, the Arbitral Tribunal invited Claimant to answer to Respondents' request for a disclosure order, which was done by Claimant on 1 March. The Claimant objected to any such disclosure order being made.

67. On 11 March 2010, the Arbitral Tribunal reminded the Parties to provide it with information on the hearing arrangements, and invited Respondents to comment on Claimant's objection to the request for a disclosure order. Respondents presented their comments on that objection on 15 March. Respondents submitted that their request was directly relevant to the issue related to the items of equipment Respondents believed had been purchased by Claimant with money provided by them. Given that Claimant was a company specifically incorporated for the purposes of the Contract, payments in and out of Claimant's bank account ought, so Respondents submitted, to be attributable to the Contract.

68. On 15 March 2010, Claimant submitted its Second Post-Hearing Memorial on Ownership and Possession. Claimant submitted, among other things, that the Arbitral Tribunal had decided, in the Partial Award, that title could only pass and had only passed in equipment affixed to the hull; and that that conclusion could not be re-opened, even if it was based on an incorrect assumption by the Arbitral Tribunal as to what equipment had been affixed to the hull.

69. On 23 March 2010, Respondents reported that they had been in discussions with Claimant and it appeared that a settlement would be reached between the Parties, and in consequence requested the Arbitral Tribunal to postpone the hearing. On 24 March 2010, the Arbitral Tribunal decided to postpone the hearing and informed the Parties that it was waiting for the Parties' manifestations on the continuation of this arbitration.

70. On 27 April 2010, the Arbitral Tribunal asked the Parties for information on the negotiations and any eventual settlement. Respondents informed the Arbitral Tribunal on 3 May that ... Claimant's attorney was no longer working at [law firm] and that they were trying to find out who would be taking over the case. On 4 May Respondents informed the Arbitral Tribunal that [Claimants' counsel] continued to be the attorneys for Claimant in the arbitration and that the Parties were reviewing the final drafts of the settlement agreement.

71. On 8 June 2010, the Arbitral Tribunal asked the Parties for information on the settlement agreement; this request was reiterated on 17 June. On 18 June, Claimant clarified that an answer was provided to the Arbitral Tribunal on 16 June. In the letter of 16 June, Claimant informed the Arbitral Tribunal of its understanding that the Parties had settled the matter. It was awaiting word from Respondents on potential issues related to the implementation of the settlement agreement.

72. On 21 June 2010, Respondents stated that they were not in a position finally to execute a settlement agreement with Claimant before determining whether the resumption of the construction of the vessel itself was viable. In the meantime, while Respondents were making such a determination, they submitted that the arbitration should proceed in relation to the claim for delivery up of the hull and equipment.

73. On 23 June 2010, the Arbitral Tribunal communicated to the Parties that it would decide on the hearings and revert to them. On the same date, Claimant suggested that the Arbitral Tribunal should set a time period for Respondents to communicate whether they sought to disavow their settlement course and/or pursue a course of litigation, at which time the Arbitral Tribunal and the Parties could determine an appropriate course of action for the proceedings.

74. In the Procedural Order of 14 July 2010, the Arbitral Tribunal: (i) ordered Respondents to communicate how long they would take to determine whether a settlement would be executed; (ii) communicated to the Parties that, if a settlement was not possible shortly, a hearing covering all pending issues would be set; (iii) informed the Parties that they could submit closing arguments following the hearing. The Arbitral Tribunal finally stated its understanding that the Parties had had more than enough time to pursue their settlement negotiations and to draw a conclusion therefrom. Hence, except for exceptional circumstances, any further extension requests from the Parties would be denied.

75. On 21 July 2010, Respondents affirmed that the outcome of the investigations to assess the feasibility of a settlement would be finalised in no more than 30 days; Respondents would submit the draft settlement agreement for Claimant's comments and further approval; and the Parties were discussing possible dates for the hearing. On 26 July, Claimant mentioned it was unaware of any change in circumstance that would imply renegotiation of the settlement agreement and that it would engage with Respondents to discuss available dates for the hearing. On 28 July, Respondents reported that a revised settlement agreement had been sent to Claimant and that the Parties were still discussing possible hearing dates.

76. On 2 August 2010, Claimant informed the Arbitral Tribunal that the Parties had identified a week in March 2011 as available for the scheduling of the next hearing, and noted that Respondents' revised settlement offer constituted a radical modification from the previously agreed settlement. The matter had to be discussed by Claimant's board and these discussions could not take place until September given the summer holidays.

77. The Arbitral Tribunal issued a Procedural Order on 9 August 2010, directing the Parties to report by 20 September on whether a settlement agreement had been executed, and communicating that a hearing would be set covering all pending issues if no agreement was reached. The Parties were also directed, by 28 September, to: (i) provide their estimate(s) of the time required for such a hearing; and (ii) propose procedural directions for this hearing, to be discussed with the Arbitral Tribunal in a procedural telephone hearing.

78. In view of Claimant's communication of 20 September 2010 that no settlement had been executed, the Arbitral Tribunal invited Respondents to comment on it. On the same date, Respondents confirmed that the Parties had failed to execute a settlement agreement by 20 September; however, the Parties were still engaged in settlement negotiations and an agreement might be executed before 28 September. In the event, however, no settlement agreement was executed, whether by that date or at all.

79. On 28 September 2010, Respondents presented a timetable for Phase II and informed the Arbitral Tribunal of their intention to call 3 witnesses of fact and 2 expert witnesses; they stated that the expert evidence would be focused on the status of the construction of the vessel, and that the deposition of one expert might be enough.

80. Claimant presented its proposal for the Phase II timetable on 29 September 2010 and commented on Respondents' proposal.

81. The Arbitral Tribunal issued a Procedural Order on 18 October 2010, inviting the Parties to propose alternative dates for the hearing and suggesting dates and time for the procedural telephone hearing. Respondents commented on the Arbitral Tribunal's Order on 20 October and Claimant did so on 25 October.

82. On 28 October 2010, the Arbitral Tribunal set the telephone hearing for 10 November. It provided further clarifications on this subject on 1 November, as well as information on available dates for the substantive hearing to take place. By its Procedural Order of 9 November 2010, the Arbitral Tribunal required the Parties to present an agreed timetable for the continuation of the arbitration at the telephone hearing, mentioning that this timetable would neither be modified nor suspended. The Arbitral Tribunal set the date for the substantive hearing from 12 to 15 April 2011 ...

83. On 10 November 2010, Claimant informed the Arbitral Tribunal that 4 days would be enough for the final hearing and that 3 fact witnesses and 1 expert witness would testify on its behalf. The procedural telephone hearing was held on the same date. On 11 November, Claimant submitted a revised draft of the timetable discussed between the Arbitral Tribunal and the Parties during the conference call.

84. The Arbitral Tribunal approved the agreed timetable on 16 November 2010 and confirmed that the final hearing would take place ... from 12 to 15 April 2011. On 3 December, Claimant sent information on the hearing venue and facilities.

85. On 13 December 2010, Claimant's counsel ... informed the Arbitral Tribunal that his firm would no longer represent Claimant in this arbitration as he was unable to obtain cooperation or instructions from his client.

86. In the Arbitral Tribunal's communication of 15 December 2010, it asked Claimant to inform it whether it was Claimant's intention to appoint new counsel, advising it that Article 21(2) of the ICC Rules states that "If any of the parties, although duly summoned, fails to appear without valid excuse, the Arbitral Tribunal shall have the power to proceed with the hearing", and Article 21(4) states that "The Parties may appear in person or through duly authorized representatives. In addition, they may be assisted by advisers". Finally, it reminded the Parties about the previously agreed timetable, which would neither be modified nor suspended.

87. On 6 January 2011, Respondents pointed out that Claimant had failed to file its written submissions by 30 December 2010, the date specified in the procedural timetable, and suggested that the procedural timetable could be shortened if Claimant did not indicate any further intention to participate in the arbitration. Respondents requested that the date of the hearing should be advanced, and suggested that no more than a day and a half would be required for the hearing. But on 14 January 2011, the Arbitral Tribunal informed the Parties that the hearing would take place from 12 to 15 April, as agreed by the Parties.

88. On 26 January 2011, the Arbitral Tribunal asked Claimant's former counsel to provide an updated mailing address for Claimant's correspondence, so that all correspondence could be duly forwarded to it. On 1 February, Respondents informed the Arbitral Tribunal that [an additional lawyer] would be advising them in the course of the arbitration, alongside [their previously stated representatives]. On 4 February, Respondents informed the Arbitral Tribunal that the hearing arrangements were made.

89. On the same date, the Arbitral Tribunal resent its message of 26 January to Claimant's former counsel, which was answered on 7 February 2011. Claimant's former counsel informed the Arbitral Tribunal that the only address it had for Claimant was [Mr B's] e-mail, which it gave, adding that [Mr B] had a power of attorney from Claimant. On 9 February, the Arbitral Tribunal forwarded to [Mr B] all correspondence exchanged since Claimant's former counsel's withdrawal, and informed counsel that these documents had also been mailed to Claimant's registered address in [its country of origin]. Following the Arbitral Tribunal's communication, Respondents forwarded to [Mr B] the letters sent to the Arbitral Tribunal on 1 and 4 February (referred to in paragraph 88).

90. On 14 February 2011, the Arbitral Tribunal communicated that all documents and correspondence issued after Claimant's former counsel's resignation were sent both to [Mr B's] e-mail address and Claimant's address in [its country of origin], and presented a list of these documents.

91. On 16 February 2011, Respondents requested a time extension for filing their written submissions. On 17 February, the Arbitral Tribunal issued a Procedural Order granting time extensions for both Parties. On 28 February, Respondents presented detailed written Submissions for the Final Hearing, and a First Witness Statement of [Captain C].

92. On 15 March 2011, Respondents requested the hearing to be shortened to two days, considering that Claimant was failing to participate in Phase II of the proceedings and did not indicate any intention to participate at any later stage. Respondents also asked the Arbitral Tribunal to confirm whether Captain [C's] presence at the hearing was necessary. In its response of the same date, the Arbitral Tribunal advised that it had been wondering whether it would be more convenient to change the venue for the hearing ..., and whether 2 days would be sufficient.

93. On the same date, the Arbitral Tribunal informed the Parties that all correspondence exchanged since 14 February 2011 was being sent to [Mr B's] e-mail and Claimant's registered address.

94. On 16 March 2011, Respondents stated that it would be more convenient and cost-efficient to hold the hearing in [the alternative city suggested by the Arbitral Tribunal]. It agreed that 2 days would be sufficient, and proposed 14-15 April.

95. The Arbitral Tribunal issued a Procedural Order on 17 March 2011, communicating that it had made its best efforts to reach Claimant by sending all e-mails, letters and submissions to [Mr B's] e-mail and Claimant's registered address; however, since 13 December 2010 Claimant had been ignoring this arbitration. It recorded that Claimant had neither appointed an attorney nor presented any of the submissions directed by the Procedural Order of 16 November 2010. Therefore, considering Respondents' letter of 16 March (see paragraph 94 above) and having in mind Articles 14.2 and 14.3 of ICC Rules (which provide among other things that the Arbitral Tribunal may, after consultation with the Parties, conduct hearings at any location that it considers appropriate unless otherwise agreed by the parties), and letter "H" of the ToR, it had decided, subject to any application on behalf of the Claimant received by 18 March, to determine the change of the hearing venue ... and if needed, to hear Respondents' appointed witness via videolink or any other appropriate electronic means.

96. On 23 March and 4 April 2011, Respondents (a) explained that exhibits to the Final Hearing Submission and Captain [C's] Witness Statement filed on February 28 (Phase II Exhibits) included Phase I submissions and documents; (b) requested the Arbitral Tribunal to adopt Phase II exhibits as the hearing bundle; and (c) suggested the hearing bundle should be directly sent to the hearing venue.

97. The Arbitral Tribunal issued a Procedural Order on 5 April 2011 in which it took into account Respondents' letters mentioned above and the fact Claimant had neither presented the submissions directed by the Procedural Order of 16 November 2010, nor taken any actions with regard of this arbitration since 13 December 2010. It decided, subject to any application on behalf of the Claimant received by 6 April: (i) to adopt the Respondents' Phase II Exhibits as the hearing bundle; and (ii) that the hearing bundle should be directly delivered to the hearing venue. On the same occasion, it informed the Parties that the second package of documents had been successfully delivered to Claimant's registered address.

98. Respondents' short pre-hearing skeleton was submitted on 7 April 2011. The Arbitral Tribunal issued a Procedural Order on 8 April in which it decided, subject to any application on behalf of the Claimant received by 11 April: (i) to accept the Respondents' final hearing proposed timetable; and (ii) that the hearing should start on 12 April at 10.00 ...

99. The hearing took place on 12 April 2011 ... Respondents were represented at the hearing by ..., who presented oral submissions to supplement Respondents' written Submissions for Final Hearing and Skeleton Argument, and by ... Captain [C] gave oral testimony, being questioned by [Respondents' counsel] and by the Arbitral Tribunal. A transcript of the hearing was circulated on the same day, and an amended version of the transcript was circulated on 19 April, which contained changes which had been communicated to the stenographer by the Respondents and which were confirmed to the Arbitral Tribunal in an explanatory e-mail from Respondents on 20 April.

100. On 21 April 2011, in response to requests made by the Arbitral Tribunal in the course of the hearings, Respondents clarified that the Delivery Date under the Contract was 31 July 2007, and exactly 20 weeks from that date was 18 December 2007 (for purposes of Article 6.1 of the Contract), and submitted the following documents: (i) relief sought by them; (ii) updated Schedule 1 to their written Submissions for Final Hearing; (iii) dated copy of the Tripartite Agreement; (iv) updated report on the lawsuits in Brazil; (v) word version of their Submission for Final Hearing; (vi) schedule of costs claimed and formulation of the interest claimed. On 27 April, Respondents presented a revised version of the declaratory and other relief they sought, and of their costs schedule.

101. On 19 July 2011, the Arbitral Tribunal communicated that all correspondence exchanged since 17 March 2011 was being sent to Claimant's registered address, as indeed it was.

102. On 26 July 2011, being satisfied that the Parties had each had a reasonable opportunity to present their respective cases, the Tribunal declared the proceedings closed in accordance with Article 22.1 of the ICC Rules. This Procedural Order was sent to Claimant's registered address on the following day.

103. The advance on costs, which was reconsidered by the ICC Court on 7 April 2011, when the Court decided to increase it ..., has been paid in full, as to [amount] by the Claimant, and as to [amount] by the Respondents (in part substituting for Claimant's ... share of the increase ... decided on by the Court on 7 April 2011).

104. The Court has from time to time extended the time for rendering the Final Award herein, most recently at its session on 4 August 2011, when the Court extended the time for rendering the Final Award to 30 September 2011.

III. Background of the dispute

105. This section and subsequent sections of this Award set out the facts as found by the Arbitral Tribunal, and the conclusions of the Arbitral Tribunal, based on the documentary record, which includes the contractual and other documentation placed before the Arbitral Tribunal, the witness statements of Mr [B] and Captain [C], the transcripts of the substantive hearings on 14 and 15 January 2009 and 12 April 2011, and taking full account of the Parties' respective submissions in their respective written and oral presentations. As recorded above, Claimant has not participated in this arbitration since 13 December 2010. However Respondents, in their written Submissions for Final Hearing and in their oral presentation at the 12 April 2011 hearing, addressed each of the points that Claimant had raised or appeared to raise in its previous submissions. The Arbitral Tribunal has taken full account of all those points in its fact-findings and conclusions below.

III.A. The Contract

106. As mentioned above, the Contract was concluded and signed on 20 August 2006. For Claimant, it was signed by Mr [A], who was identified (1) on the signature page, as the "Contracts Manager"; (2) at Article 36, as the person to whom contractual notices should be sent; and (3) at Annex K, as the person who was to sign any Contract Amendment Forms. Claimant has not disputed that Mr [A] was authorised to conclude the Contract on behalf of Claimant.

107. The Contract was for the conversion by Claimant (referred to in the Contract as "Contractor") of a pre-existing hull into a vessel to be used by [First Respondent] (referred to in the Contract [by the name of Second Respondent]). The Contract was described as a "Turnkey Contract" and its scope was set out 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 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.

108. Article 16 explained 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.

109. At the time of conclusion of the Contract, [First Respondent] operated a submarine cable-laying business, and the Vessel, when completed, was intended to be added to its fleet of vessels providing cable-laying and ancillary services.

110. As provided in Articles 3.2 and 3.3 of the Contract, Claimant was to provide the Vessel for a fixed Contract Price of [amount], which Price could only be varied by agreement in writing:

3.2. Unless otherwise expressly provided by this Contract or unless otherwise mutually agreed in writing between [Second Respondent] and the Contractor, the Contract Price, in all respects, shall be firm, fixed and an all-inclusive lump-sum price. ...

3.3. ... In any circumstances, the Contract Price shall not increase nor be subject to any escalation unless otherwise mutually agreed between [Second Respondent] and the Contactor in writing.

111. The Vessel was to be delivered by 31 July 2007, unless otherwise mutually agreed between the parties in writing, by virtue of the following provisions of the Contract:

a) The definitions section, Article 1, which included the following definition of Delivery Date:

xiii. "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

and

b) Article 5, which provided as follows:

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 and after successfully carrying out all necessary Tests and Sea Trials programme ...

112. Article 8 of the Contract allowed for possible changes to the specification of the Vessel, and consequential changes to the Price and the Delivery Date, but also provided that any such changes were to be agreed in writing before they were implemented:

Article 8

Design, plans, approvals and alterations

8.1. [Second Respondent] shall have the right to require any alteration/modification to the Technical Specifications from time to time, provided that all such alterations subsequent to signing this Contract by both Parties hereto shall be mutually agreed in writing in the form of Annex K prior to carrying out any such alteration/modification and may require adjustment in the Contract Price and/or extension of date of Delivery. Forthwith after the Parties have both signed a formal Amendment to this Contract in the form in accordance with Annex K hereto, the Contractor shall implement all such alterations/modifications where relevant and [Second Respondent] shall either pay the agreed increase in the Contract Price when applicable and/or arrange for the Irrevocable Letter of Credit to be amended to reflect the increase in the Contract Price.

8.2. It is understood that any alteration/modification even of a very minor nature which may or may not make any impact on the performance of the Vessel or its equipment/machinery or on the Contract Price, must be agreed between the Parties in writing and implemented accordingly following a formal Amendment to this Contract. Modification/alteration of whatsoever nature shall be duly recorded/reflected in relevant Report(s)/Document(s) to be submitted by the Contractor to [Second Respondent] for the record.

8.3. The Contractor may propose to [Second Respondent] in writing any change in the construction activities/work. The Contractor shall provide [Second Respondent] such proposed change in detail concerning all relevant information provided [Second Respondent] shall be at liberty to accept or reject such changes at its sole discretion.

8.4. In no circumstances, the Contractor shall effect any modification/alteration to the Technical Specifications without the approval of [Second Respondent] in writing.

A proforma Contract Amendment form was attached at Annex K to the Contract. Any "costs increase value" or "schedule impact" had to be recorded, and the document was to be signed by both parties to the Contract.

113. As Respondents submitted, absent agreement in writing, Claimant was thus obliged to construct the Vessel to the agreed specification and deliver it by the agreed Delivery Date for the agreed Price.

114. Article 9 of the Contract recognised that some changes might be required as result of changes to "relevant laws, rules, regulations and enactments" and provided that, in such cases, the Delivery Date would be "extended by the relevant amount of time as agreed by [Second Respondent]". There was also a Force Majeure clause at Article 26. But neither of these clauses is relevant to Claimant's case, as Claimant has not asserted that any delays were caused by changes to rules or regulations or by force majeure.

115. Article 25 of the Contract provided for termination by First Respondent ... It specifically provided for termination in the event of late delivery, as follows:

25.1. If the Contractor:

a) fails to perform his obligations under this Contract or

b) has failed to achieve the date of Delivery or any part thereof specified in this Contract within the time or times specified in this Contract

...

then [Second Respondent] may give written notice to the Contractor requiring him to remedy such breach or failure within (14) days or such longer period of time as may be agreed by [Second Respondent].

25.2. If the Contractor:

...

b) fails to remedy a breach or failure as to which [Second Respondent] has given notice as above within the time specified for each case;

then [Second Respondent] may forthwith terminate this Contract in whole or in part.

116. Claimant's only express contractual right of termination was at Article 28.2, which provided as follows:

The Contractor may at any time by notice in writing summarily terminate this Contract without compensation if [Second Respondent] is declared bankrupt by a competent authority or if [Second Respondent] is declared wound up or a trustee in bankruptcy, a liquidator, a receiver, or a manager on behalf of a creditor shall be appointed ...

117. Article 34.1 of the Contract provided that "the validity, interpretation and performance of this Contract, in all respects, shall be governed by the laws of England". As the Tribunal has already ruled (in paragraph 145 of the Partial Award), the Contract was accordingly governed by English law as the substantive law chosen by the Parties thereto.

118. As Respondents submitted, there was nothing personal about the contractual obligations undertaken by [First Respondent]. Indeed, its principal obligation was the obligation to pay. It could not matter to Claimant whether it was paid directly by [First Respondent] or by some other company on behalf of [First Respondent].

119. In contrast, many of Claimant's obligations were personal. It was required to design, construct, test and commission the Vessel. These were all services that required special skills and where, in the normal course of events, a buyer would expect to have the services provided either by the company it had chosen or identified sub-contractors.

120. This distinction was reflected in the terms of the Contract. Article 29.1 provided that

The Contractor shall not give, bargain, assign, sublet or otherwise dispose of or transfer this Contract or any part thereof of [recte: or] the benefit or advantage of this Contract or any part thereof to another party without the prior written consent of [Second Respondent].

But there was no similar restriction placed on [First Respondent]. [First Respondent] was thus free to assign or subcontract its obligations under the Contract to the fullest extent permitted by law.

121. Because the obligations undertaken by [First Respondent] were of a non-personal nature, it was also, as submitted by Respondents, entitled to perform its obligations under the Contract vicariously:

a) English law on this topic is summarised in Chitty on Contracts, 13th Ed, 2008, at 19-081:

A contracting party can in the case of many contracts enter into an arrangement by which some other person may perform for him, as far as he is concerned, the obligations of the contract, and the other contracting party will be obliged to accept that performance if it is performance in accordance with the terms of the contract.

b) And at 19-082, quoting from Davies v. Collins [1945] 1 All E.R. 247:

Whether or not in any given contract, performance can properly be carried out by the employment of a subcontractor, must depend on the proper inference to be drawn from the contract itself, the subject-matter of it, and the other material surrounding circumstances.

c) The test (summarised in 19-082) is: "Did the contracting party promise personal performance, or did he merely promise a result?" Or put another way, are the contractual obligations "too personal to admit to performance by anyone other than the original contracting part[y]".

122. Accordingly, as submitted by Respondents, [First Respondent] was free to assign or subcontract its obligations under the Contract to the fullest extent permitted by law. As appears below, this is significant when one comes to consider the effect of the SPA referred to in the next section.

123. Other provisions of the Contract, including the provisions of Article 4 specifying payment milestones and including provisions as to passing of property in the hull and items of Major Equipment (as defined in Article 1), are set out or summarised in paragraphs 146-156 of the Partial Award.

III.B. The SPA

124. In early 2007, [First Respondent]'s ultimate parent ... restructured part of its operations. As part of this restructuring, [First Respondent]'s submarine cable business was to be transferred from [First Respondent] to another subsidiary, [Second Respondent]. This transfer was effected by a sale and purchase agreement in writing dated 6 March 2007 (the "SPA"). By the SPA, [Second Respondent] agreed to buy and [First Respondent] agreed to sell the submarine cable business.

125. Clause 1.1 of the SPA provided for the sale and purchase of assets and liabilities. The assets sold pursuant to clause 1.1 specifically included the Vessel, equipment and rights under the Contract. These were identified at item 9 of Annex A to the SPA as "Capital Work in progress (Ship)".

126. As the Respondents submitted, this operated as a sale of the hull and of any other equipment to which [First Respondent] had acquired title prior to 6 March 2007. There was no provision in the Contract that required [First Respondent] to obtain the consent of Claimant before any such sale, nor was there any other legal obstacle which prevented [First Respondent] from selling property to which it had title.

127. As the Respondents further submitted, the SPA also operated as an assignment of [First Respondent]'s rights under the Contract:

a) As a matter of English law, parties to commercial contracts are (subject to any contractual prohibition) generally free to assign the rights that arise under such contracts. The consent of the other party to the contract is not required. An assignment can take effect (1) at law, pursuant to section 136 of the Law of Property Act 1925, or (2) in equity. This is true of shipbuilding contracts as much as any other type of commercial contract. See, for example Curtis, The Law of Shipbuilding Contracts, 3rd Ed, 2002, at page 218: "In the absence of an express or implied prohibition, it is open to either party to an agreement to assign to a third party the benefits accruing thereunder."

b) As set out above, the Contract contained no prohibition on the freedom of [First Respondent] to assign its rights.

c) There is no reason why the word "assets", in Clause 1.1 of the SPA, should not be given its ordinary broad meaning. It therefore included, not just the physical property identified in Annex A to the SPA, but also the contractual rights and liabilities relating to such property, as is clear from the words used in Clause 1.1 and from the SPA as a whole. In particular:

i) The preamble of the SPA made it clear that the Business (as defined) was being sold, not just the physical property owned by [First Respondent].

ii) Clause 3.4 acknowledged that some of the contracts were not capable of complete assignment without the consent of the other party. This clause would, as Respondents pointed out, have been irrelevant and misleading if contractual rights were not being assigned.

iii) Clause 4.1 provided that "The Seller shall fully cooperate with the Purchaser and use its best efforts to obtain any and all consents, approvals and waivers of principals, lessors, suppliers, customers, creditors and such other third parties and governmental agencies and entities as may be necessary to fully consummate the sale, assignment and transfer of the Assets and Liabilities to the Purchaser". This provision is likewise only consistent with a broad interpretation of "assets" in clause 1.1.

128. In contrast, as a matter of English law, contractual obligations cannot be assigned without the consent of the other party to the contract. However (as set out above) performance of contractual obligations can be sub-contracted. This was done by Clause 1.2 of the SPA, which provided as follows:

From the date of signing of this agreement, the Seller shall not be liable/responsible for any type of liabilities or responsibilities related to this agreement. Therefore upon signature of this Agreement, the liabilities and responsibilities related to the Seller shall per se be passed on to the Purchaser as per the terms and conditions of this agreement.

The Arbitral Tribunal concludes that this was an effective agreement, as between [First Respondent] and [Second Respondent], that (as from the date of the SPA, i.e. 6 March 2007) the obligations of [First Respondent] under the Contract (and other agreements) would be performed by [Second Respondent]. Claimant had no legal right (as a matter of English law or under the terms of the Contract) to object to this.

129. The Tribunal therefore concludes, in summary, that the SPA operated:

a) As a sale by [First Respondent] to [Second Respondent] of the hull and any other equipment then owned by [First Respondent];

b) As an assignment by [First Respondent] to [Second Respondent] of [First Respondent]'s rights under the Contract; and

c) As a sub-contract by [First Respondent] to [Second Respondent] of the performance of [First Respondent]'s obligations under the Contract.

130. All that was required to enable [First Respondent] to drop completely out of the picture, was the consent of Claimant to the transfer of the obligations under the Contract. It was the Respondents' contention that such consent was provided when Claimant signed the Tripartite Agreement, to which the Arbitral Tribunal now turns.

III.C. The Tripartite Agreement

131. By letter dated 15 March 2007, [First Respondent] explained to Claimant that, as part of its growth and expansion strategy, the business of [First Respondent] was being transferred to [Second Respondent]. [First Respondent] explained that as "this expansion process required transfer of all existing assets and liabilities of [First Respondent] to [Second Respondent]... [this] would include transfer of [the Contract]". [First Respondent] asked Claimant to consent to this, and to formalise the position by signing the Tripartite Agreement.

132. It is clear from the documentary record that Mr [A] was either sent or given this letter together with 3 copies of the Tripartite Agreement before or during a meeting ... on 21 March 2007. Upon his return to Brazil following the 21 March 2007 meeting, Mr [A] signed the 3 copies of the Tripartite Agreement on behalf of Claimant. He then sent them back to [Second Respondent] under cover of a letter dated 26 March 2007.

133. The following features of the Tripartite Agreement are of relevance:

a) [First Respondent] was defined as the "Assignor"; [Second Respondent] as the "Assignee"; and Claimant as the "Contractor". The Contract was defined as the "Principal Agreement".

b) Clause 2 provided that "All rights, duties, obligations and entitlements, whatsoever of the Assignor under the Principal Agreement are hereby assigned and transferred (hereinafter referred to as "Transfer") in their entirety to and in favour of the Assignee".

c) Clause 5 provided that "The transfer shall be effective from the date of signature by all the parties hereto ...".

134. Claimant has asserted that Mr [A] was not authorised to sign this agreement on behalf of Claimant. This assertion is considered below. However, subject to this, Claimant has not disputed that the Tripartite Agreement (if binding on it) was effective to substitute [Second Respondent] for [First Respondent] as its counterparty to the Contract.

III.D. Claimant's alleged failure to perform

135. As Respondents contended, by March 2007, it had become clear that Claimant was constructing the Vessel to a specification that was, in many respects, materially different from the specification agreed in the Contract. There is a dispute between the Parties as to why this was the case. This is considered below. However, there is no dispute that the Vessel was not ready for delivery by the Delivery Date specified in the Contract, 31 July 2007. Indeed, more than 7 months later, on 7 March 2008, the Vessel was inspected by [a firm of marine consultants]. It is clear from their report that a very substantial amount of work still remained to be done.

136. This delay led to a string of correspondence which resulted, ultimately, in the Contract being terminated.

III.E. Termination

137. On 7 October 2007, [Second Respondent] wrote to Claimant pointing out that the Delivery Date had passed, and that no action had been taken by Claimant to rectify or minimise this alleged breach. [Second Respondent] asked Claimant to provide a plan for minimising delay within 7 days, and gave notice that Claimant was to "show cause within 14 days hereof, as to why [Second Respondent] should not take necessary action to enforce its remedies under the Contract".

138. In its reply, dated 13 October 2007, Claimant made allegations blaming [Second Respondent] for the delay and demanding [an amount] for unspecified "additional work". Respondents have submitted that Claimant's allegations against [Second Respondent] were unfounded (as more fully described below), and that the sum claimed for the unspecified works was a product of invention and exaggeration. They have submitted that there was no basis for that sum, and observed that Claimant has not sought to pursue it or substantiate it in this arbitration. Nowhere in its letter of 13 October 2007 did Claimant address the points raised in [Second Respondent]'s letter of 7 October. Accordingly, [Second Respondent] wrote again, on 16 October, asking for a plan and reserving its rights.

139. Following this, Capt. [C] on behalf of [Second Respondent] attended a meeting in Brazil to discuss progress with the Vessel. Following this meeting, Claimant delivered to Capt. [C] requests for 14 contract amendments, seeking to increase the Price by [amount] (an increase of about 35%) and to extend the Delivery Date by 731 days - i.e. 2 years (an increase to the scheduled time of about 200%). Capt. [C] refused to sign these requests.

140. On 21 October 2007, [Second Respondent] wrote to the bank that had issued the performance bonds ... informing the bank that the rights under the Contract had been transferred to [Second Respondent] and that, consequently, [Second Respondent] was the entity that had sole authority to issue a Certificate of Delivery and Acceptance pursuant to the Contract. [The bank] sent Claimant a copy of this letter, together with a copy of the Tripartite Agreement, on 28 October 2007.

Claimant has claimed that this letter from [the bank] "took [Claimant] completely by surprise". However, Claimant said nothing to either [First Respondent] or [Second Respondent] at the time. Instead, on 1 November 2007, Claimant formally submitted the 14 requests for contract amendments by letter of the same date.

141. On 4 December 2007, [Second Respondent] wrote to Claimant asking it to "arrange with [the bank] to issue an endorsement for the subject guarantees amending the name from [First Respondent] to [Second Respondent]". In its response, dated 6 December 2007, Claimant referred to the letter of 4 December and said "we are unaware of your company having entered into any relationship with [Second Respondent] or any assignment ...". Respondents submitted that this was not true, because:

a) Mr [A] had signed the Tripartite Agreement on behalf of Claimant. Furthermore he had done so with the knowledge and approval of others at Claimant, including Claimant's Board-appointed legal representative ...

b) Even if Claimant had "forgotten" about this or lost its copies of the Tripartite Agreement, it had received further copies from [the bank] more than a month previously. To say that Claimant was "unaware" of the relationship or the assignment, was, so Respondents submitted, plainly untrue.

142. On 18 December 2007, [Second Respondent], through its Brazilian counsel, responded to Claimant's letter of 1 November 2007 (seeking to increase the Contract Price by about 35% and to extend the project period by 200%). [Second Respondent] rejected Claimant's claims (but indicated that it would consider discussing items 1 to 3 of the requested amendments).

143. On 24 December 2007, [Second Respondent] wrote to Claimant, asserting that it was in breach of contract by reason of the non-delivery of the Vessel, and gave Claimant notice in the following terms:

[Claimant] is hereby notified to remedy this breach of contract within 14 (fourteen) days from the receipt of this notice by providing [Second Respondent] with an alternative schedule for the delivery of the Vessel as well as with a comprehensive list of [Claimant]'s debts with the shipyard and the subcontractors, so that [Second Respondent] can better evaluate whether [Claimant] is still able to carry out the construction work.

144. Claimant did not deliver the Vessel. Nor did it offer any alternative delivery schedule. Instead, on 16 January 2008, Claimant (through [its counsel]) wrote to Respondents (through [their counsel]) in the following terms:

As you know, my client [Claimant] was engaged by [First Respondent] ... We have learned recently that [Second Respondent] is no longer trading, its letter of credit securing payment under the Contract has expired and it has been wound up as that term is used in the Contract. Accordingly, [Claimant] has sent a termination letter to [Second Respondent] pursuant to Article 28 of the Contract".

145. Respondents submitted that there were 3 points to note in relation to this letter, as follows:

a) The only alleged basis for termination was termination under Article 28 of the Contract.

b) Whilst reference was made to [First Respondent] "no longer trading" and the letter of credit having expired, the only allegation that had any correlation with Article 28 is the allegation that [First Respondent] has been "wound up". Respondents contended that this allegation was incorrect, for the reasons set out and considered below.

c) This letter did not in fact purport to be Claimant's "notice in writing" under Article 28. Instead, it stated that "[Claimant] has sent a termination letter to [Second Respondent]" (emphasis added). In fact Claimant has not produced any such prior termination notice and does not (now) claim to have sent one.

146. [Second Respondent] responded on 17 January 2008. In this letter:

a) [Second Respondent] stated "we understand from your notice that [Claimant] would have sent a termination letter" (sic), but rejected any purported termination by Claimant, pointing out that "[First Respondent] is still an active company and has not been declared bankrupt or been wound-up".

b) [Second Respondent] stated that Claimant's purported termination was groundless for the additional reason that [First Respondent] had been replaced by [Second Respondent] as the party to the Contract.

c. [Second Respondent] gave notice that the Contract was terminated pursuant to Article 25.2 for Claimant's failure to remedy breaches. Specific reference was made to the notice of 24 December 2007.

147. On the same day, [First Respondent] called on the performance bonds.

148. Claimant responded to the letter from [Second Respondent] later on 17 January 2008. In this letter, Claimant denied that the Tripartite Agreement had any legal effect; said that it could not "recognise any transfer of rights"; and continued as follows:

Finally, insofar as the continued existence of [First Respondent] is concerned, we have in hand evidence that it is no longer trading and has been stripped of all its assets. Further, it has let expire the letter of credit by which payment under the Contract is made. [First Respondent] has thus already renounced the Contract and rendered its own performance impossible. Should [First Respondent] now be an operating entity and in good-standing, with assets exceeding its liabilities and wish to enter into a new contract with [Claimant], we request that you provide us with duly-authenticated corporate and bank records establishing these facts. Until then, [Claimant] unfortunately has no choice but to consider that the contract has been renounced by [First Respondent], discharged by [First Respondent]'s impossibility to perform and that the termination notice is valid as the evidence in [Claimant]'s possession shows that its contractual counterparty has gone out of business.

149. Respondents submitted that there are 2 points to note in relation to this letter:

a) First, whilst various matters were raised in support of the termination notice which [Claimant's counsel] clearly believed had been sent, the letter did not itself purport to be a (new) notice of termination.

b) In particular, Claimant did not claim to be terminating the Contract other that pursuant to Article 28. Specifically, at this time, Claimant did not claim that it was "accepting" a "repudiation" by either Respondent.

150. Neither side relies on any of the correspondence that post-dated this exchange as bringing the Contract to an end.

IV. The Arbitral Tribunal's analysis of the issues and its determinations in respect thereof

IV.A. Alleged novation of the Contract - The Tripartite Agreement

IV.A(1) Introduction

151. It is convenient first to deal with the issue as to whether, as alleged by Respondents, the Tripartite Agreement was valid and binding upon Claimant and had the effect of novating the Contract by substituting [Second Respondent] for [First Respondent] as Claimant's contracting counterparty under the Contract.

152. Before addressing this issue, however, it is important to note that, as submitted by Respondents, whether or not Claimant was bound by the Tripartite Agreement:

a) As concluded in Section III.B above, the SPA operated as a sub-contract by [First Respondent] to [Second Respondent] of the performance of [First Respondent]'s obligations under the Contract, and [First Respondent] had been entitled so to sub-contract performance of its obligations, such that, when the time for performance arrived, Claimant would not have been entitled to reject performance by [Second Respondent]. In particular, Claimant would not have been entitled to reject payment by [Second Respondent].

b) The Tripartite Agreement is irrelevant to Claimant's allegation that it was entitled to and did terminate the Contract because [First Respondent] had been "wound up".

153. Notwithstanding these limitations to the relevance of the issue as to the validity and effect of the Tripartite Agreement, in its filings in this arbitration Claimant has placed substantial reliance on the alleged invalidity of the Tripartite Agreement. Claimant has raised three points in relation thereto:

a) Claimant has asserted that it had "never seen, much less authorized the signature of any "Tripartite Assignment Agreement".

b) Claimant has pointed out that, on the different copies thereof, the signatures are not identical and stamps are oriented differently.

c) Claimant has further pointed out that the covering letter from Mr [A] pre-dated the date of the Tripartite Agreement by a month.

154. These points are all addressed below. First, however, it is necessary to consider what is the applicable law by which the issue of whether Claimant is bound by the Tripartite Agreement is to be determined.

IV.A(2) The applicable law

155. The parties have agreed, both at clause 34.2 of the Contract and at paragraph J(1) of the ToR, that the arbitration is subject to the ICC Rules. The seat of the arbitration is Geneva, Switzerland.

156. Both the ICC Rules and Swiss rules of private international law give effect to a choice of law made by the parties:

a) Article 17(1) of the ICC Rules provides as follows:

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. In the absence of any such agreement, the Arbitral Tribunal shall apply the rules of law which it determines to be appropriate.

b) Article 187 of the Swiss Private International Law provides as follows:

The arbitral tribunal shall rule according to the law chosen by the parties or, in the absence of such choice, according to the law with which the action is most closely connected.

157. Accordingly, whether the Arbitral Tribunal starts with the ICC Rules or Swiss Private International Law:

a) The first stage of any analysis is to ascertain whether or not the parties have chosen the law that is to apply to the issue as to the validity and effect of the Tripartite Agreement.

b) In the absence of choice, the Arbitral Tribunal must apply "the rules of law which it determines to be appropriate" (per ICC Article 17(1)).

158. As regards choice:

a) The Tripartite Agreement itself is silent as to the question of applicable law. However, its function was to change the parties to an existing contract: the Contract. Clause 4 provided that, with effect from the date of the transfer, the Principal Agreement - the Contract - was to be "fully enforceable between the Assignee and [Claimant] as if the Principal Agreement has originally been concluded between them". Clause 6 provided that, upon signature, "the Assignor shall have no liability or obligation, whatsoever, in respect of the Principal Agreement". If the Tripartite Agreement was effective, the result was therefore that there was a binding contract between Claimant and [Second Respondent]. If it was not effective, the original Contract remained, with the parties unaltered. Accordingly, it is, as Respondents submitted, appropriate to look at the choice of law clause in the Contract in order to determine whether or not it is of sufficient scope to cover the dispute in relation to the Tripartite Agreement.

b) 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". The Arbitral Tribunal has concluded that (as submitted by Respondents) this choice of law clause is, for the following reasons, broad enough to encompass the dispute in relation to the Tripartite Agreement:

i) The word "validity" is broad enough to cover a dispute as to the identity of the parties to the Contract.

ii) In this context it is necessary to bear in mind that, as a matter of English law, where all rights and obligations are consensually transferred from one party to another, such that the original party is relieved of any further obligation, this "novation" operates as the extinction of the original contract and its replacement by a new contract on identical terms but with the new party. This is clearly what the Tripartite Agreement was intended to achieve. Accordingly, in this arbitration, Respondents' case is that there is a valid and binding contract between [Second Respondent] and Claimant. Claimant's case is that there is not. There is therefore a dispute as to the "validity" of the Contract alleged by Respondents.

iii) In particular, the agreement that the "validity" be governed by English law is sufficiently broad to cover any dispute as to the authority of Mr [A], as it is Claimant's case that the there is no valid agreement between Claimant and [Second Respondent] because Mr [A] was not authorised to sign the Tripartite Agreement.

iv) Similarly, the word "performance" applies, as the validity (or otherwise) of the Tripartite Agreement determines which party (as between [First Respondent] and [Second Respondent]) is entitled to the benefit and bears the burden of performance under the Contract.

v) The words "in all respects" indicate that a broad purposive interpretation (rather than a narrow linguistic interpretation) should be adopted. The parties clearly intended that all disputes between them in relation to the Contract should be governed by English law.

c) For these reasons, the Arbitral Tribunal has concluded that the choice of law clause in the Contract, properly construed, covers any dispute as to the validity and effect of the Tripartite Agreement, including any dispute as to the authority of Mr [A]. Accordingly, all relevant issues are governed by English law.

159. Even if, however, contrary to the foregoing the choice of law in the Contract does not, on a proper construction, encompass disputes in relation to the Tripartite Agreement, the Arbitral Tribunal has concluded that (as submitted by Respondents) English law would still have been applicable because, for the following reasons, it is the "appropriate" law to apply:

a) The sole purpose of the Tripartite Agreement was to replace the original English-law Contract between [First Respondent] and Claimant with a new English-law Contract between [Second Respondent] and Claimant. The Tripartite Agreement has no function or vitality that is independent of these contracts. It has no substantial connection with any system of law other than English law.

b) Whilst the actual authority of a representative of a company is frequently determined by the law of the place of incorporation ..., this is not the most appropriate law in the present case. Mr [A]'s authority stemmed (in part) from an English law contract, the Contract, where he was identified by Claimant as the person authorised to sign Contract Amendment Forms.

c) In these circumstances, English law is the most appropriate law for the determination of any issue as to Mr [A]'s actual authority. It should be noted, however, that in the present case, it is does not appear to matter whether English law or the law of [the country of incorporation of Claimant] is applied, as [the latter] law, in common with English law, imposes no formal requirements for the creation of an agency.

160. As regards apparent authority and/or estoppel, English law is clearly the most appropriate law, for the following reasons:

a) Mr [A] unquestionably had authority to conclude the Contract on behalf of Claimant. This was expressly governed by English law. He then signed the Tripartite Agreement which (for the reasons set out above) is also governed by English law.

b) In these circumstances, the issue of apparent authority is most closely connected with English law. Apparent authority and estoppel (unlike actual authority) does not turn on the relationship between the principal and agent. It turns on representations made by or on behalf of the principal to the third party about agent's authority to enter into a contract. Where the contract is expressly governed by English law, the effect of that representation (i.e. whether or not it leads to the principal being bound by the contract) is most closely connected with English law.

c) This is reflected in the conflicts rules of many jurisdictions. For example, in England the position is summarised as follows in Dicey, Morris & Collins, The Conflict of Laws, 14th Ed, 2006 at 33-432 [R-75]:

Where A [the agent] lacks actual authority from P [the principal], it seems right, in principle, that the law applicable to the contract between A and T [the third party] should determine whether P is bound (or entitled). In effect in this situation, one is asking whether A had apparent or ostensible authority to bind P. ...

Again, the extent to which A must be deemed to be authorised by P to sell property on his behalf or enter into other contracts, i.e. the definition of A's ostensible authority, is a matter for the law applicable to the contract which he concludes, as are the consequences of lack of authority, and the effect of later ratification.

161. In conclusion, the Arbitral Tribunal has concluded that English law should be applied to all disputes in relation to the Tripartite Agreement, including the dispute as to the authority of Mr [A].

IV.A(3) The authority of Mr [A]

162. The Arbitral Tribunal has concluded that, as submitted by Respondents, the evidence establishes that Mr [A] did indeed have actual authority to sign the Tripartite Agreement.

163. First, Mr [A] had authority to sign the Contract which, in turn, included authority to agree amendments to the Contract: in Annex K of the Contract, Claimant specifically identified Mr [A] as the person authorised to sign Contract Amendment Forms on behalf of Claimant.

164. Secondly, it is clear from the evidence that Mr [A] was given further specific authority to sign the Tripartite Agreement:

a) Claimant's legal representative ... (who had been appointed as such by a resolution of the Board of Directors made on 18 July 2006), was either personally involved in, or personally aware of, the authority that had been granted by Claimant. This is apparent from the fact that he was copied in on all relevant correspondence, but did not suggest (at the time) that [Mr A] was not authorised. If Claimant had not authorised the signing of the Tripartite Agreement it seems inconceivable that [Claimant's legal representative] would not have said something at the time.

b) The fact that Claimant's company stamps were used both on the Tripartite Agreement and on the letter of 26 March 2007 (by which the signed agreements were sent back to [Second Respondent]) is further evidence of actual authority.

165. Claimant's subsequent conduct provides further evidence that Claimant was aware of and considered itself bound by the Tripartite Agreement. For example, whilst much of the correspondence and documentation generated by Claimant refers to [Second Respondent] without being specific as to which corporate entity is referred to:

a) The correspondence generated on Respondents' side was clear. All letters were written on the paper of the Second Respondent ... Claimant did not query this.

b) Where Claimant took care to accurately identify the correct legal entity, Claimant also addressed correspondence to the Second Respondent. For example:

i) Claimant's notice of completion of steel works dated 25 March 2007 was addressed to [Second Respondent]. This was a contractual document which was (together with other documents) designed to trigger and did trigger payment of the third instalment of the Contract Price.

ii) In response to a letter to [Claimant's legal representative] dated 7 October 2007, Claimant's Commercial and Planning Manager ... wrote back to the Second Respondent accusing the Second Respondent of being "the party that has not lived up to its contractual obligations". There was no room here for confusion as to the identity of the party addressed. The letter is addressed to "[Second Respondent]" (not "[First Respondent]") and sent to the Second Respondent's PO Box number.

166. The Arbitral Tribunal has therefore concluded that the assertion by Claimant at paragraph 10 of its Request for Arbitration that "the first inkling" of [Second Respondent] 's involvement "came to [Claimant] on November 7, 2007" is not true.

167. In any event, even if, contrary to the foregoing conclusion Mr [A] did not have actual authority, the Arbitral Tribunal has concluded that (as submitted by Respondents) he clearly had apparent authority:

a) The first requirement of apparent authority is that the principal "by words or conduct, represents or permits it to be represented that another has authority to act on his behalf" (per Bowstead & Reynolds on Agency, 19th Ed, 8-013).

b) As regards this requirement, from the outset, it seems clear that Mr [A] was held out by Claimant as being the person (a) who had authority to conclude agreements on behalf of Claimant and/or (b) through whom Claimant's agreement would be communicated, in each case by Mr [A] putting his signature onto documents. Examples of this include the following:

i) Mr. [A] signed the Contract on behalf of Claimant.

ii) Article 36 of the Contract specifically identified Mr [A] as the individual to whom contractual notices should be sent.

iii) Annex K of the Contract identified Mr [A] as the individual who was to sign Contract Amendment Forms on behalf of Claimant.

iv) Mr [A] also signed the Bill of Sale on behalf of Claimant.

v) In a "Company Background and Experience" document provided by Claimant to [Second Respondent], Claimant stated "The director is [Mr A]".

168. The Arbitral Tribunal has concluded that by holding Mr [A] out in this way, the Claimant represented (1) that he had authority to conclude contracts on behalf of Claimant by adding his signature; and (2) that he had authority to communicate Claimant's agreement by adding his signature.

169. Consistent with this, having taken the copies of the Tripartite Agreement back to Brazil, the Arbitral Tribunal finds that Mr [A] signed the copies of the Tripartite Agreement and sent them back to Respondents. After this was done, ... a Production Assistant at Claimant on 26 March 2007 informed Respondents [Claimant's legal representative] (amongst others) that "on behalf of Mr [A], please be informed that the 'Tripartite Assignment Agreement for Contract No. ...' was sent today to [Second Respondent] by courier ..." (emphasis added). This e-mail left no room for any doubt or confusion as to what had been done:

a) Contract No. ... [cited above], is the Contract. Accordingly, it is clear that, whatever document had been sent, it related to the Contract.

b) The title ("tripartite assignment agreement") made it clear that one party to the Contract was assigning its interest to another party. As [Claimant's legal representative] knew that Claimant was not assigning its interest, he must have known that [First Respondent] was assigning its interest to another party.

170. If [Claimant's legal representative] believed that Mr [A] did not have authority to conclude any such agreement, he would surely have said something at the time. The Arbitral Tribunal finds that by his silence, he represented that Mr [A] was authorised to do what he had done. This representation was compounded when the Respondents subsequently received the signed copies of the Tripartite Agreement. On 3 April 2007, [Second Respondent] sent [Claimant's legal representative] (amongst others) an e-mail stating "We acknowledge with thanks receipt of ... the Tripartite Agreement". Again, [Claimant's legal representative] said nothing. Again, by his silence, he represented that Mr [A] had authority to enter into the Tripartite Agreement.

171. The second requirement of apparent authority is that the third party acted "on the faith of any such representation" (per Bowstead & Reynolds on Agency, 19th Ed, 8-013). In other words, the principal is only bound if the third party relied on the representation. As regards the present case, it is clear that Respondents did indeed rely on the apparent authority of Mr [A]. In particular:

a) If Respondents had had any inkling that Mr [A] was not authorised, the Arbitral Tribunal is satisfied that they would have taken steps to ensure either (a) that he obtained authority; or (b) that the Tripartite Agreement was signed by somebody who did have authority. The Arbitral Tribunal concludes that it was because Mr [A] had been consistently held out by Claimant as having authority to negotiate and execute the documentations on its behalf that Respondents did not take any such action.

b) Moreover the documentary record demonstrates that Respondents were open about the existence and effect of the Tripartite Agreement. For example:

i) Respondents referred to it in the e-mail to [Claimant's legal representative] and others at Claimant dated 3 April 2007; and

ii) Subsequent correspondence from Respondents was all sent by [Second Respondent], using its own letterhead, rather than [First Respondent].

This conduct is, the Arbitral Tribunal concludes, only consistent with Respondents believing that Claimant was bound by Mr [A]'s signature on the Tripartite Agreement.

172. For completeness, the Arbitral Tribunal adds that, if it had concluded (contrary to the foregoing) that Mr [A] had had neither actual nor apparent authority to conclude the Tripartite Agreement on behalf of Claimant, the Arbitral Tribunal would have concluded that Claimant had ratified his actions in signing on its behalf and/or was estopped from denying that it was bound.

IV.A(4) The other issues raised by Claimant

173. Claimant has raised two other issues in relation to the Tripartite Agreement:

a) First, Claimant has pointed out that, on the different copies, the signatures are not identical and stamps are oriented differently. This is not surprising. Indeed, if the signatures and stamps on each of the three copies had been absolutely identical, this might itself have been cause for suspicion.

b) Secondly, Claimant has pointed out that the covering letter from Mr [A] pre-dated the date on one copy of the Tripartite Agreement by a month. On this basis, Claimant asserted that the covering letter "could not possibly have enclosed such an agreement". The Arbitral Tribunal finds, however, that the explanation for this is that Mr [A] signed three undated copies of the Tripartite Agreement and sent all three back to Respondents without dating them. The date was added later.

174. In short, the Arbitral Tribunal accepts Respondents' submission that there is nothing in the points raised by Claimant, and concludes that, for all of the foregoing reasons, Claimant is bound by the Tripartite Agreement.

IV.B. Outstanding ownership issues - including issues as to ownership of the equipment and other materials to be installed upon the hull

IV.B(1) Introduction

175. By para. 214 of the Partial Award, the Tribunal adjudged, declared and awarded, inter alia:

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

a) The 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.

....

176. In making this determination and award, the Tribunal was under the misapprehension that the 4 main engines and 2 generators which Claimant was obliged to supply and install on the Vessel, and other items of Major Equipment (as defined in Article 1 of the Contract), had already been delivered to and installed on the Vessel, following payment of the third and fourth milestone payments under the Contract - as is apparent from paras. 166-168 of the Partial Award, quoted in part below for convenience:

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 ...., 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 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 Claimant and third party suppliers, as follows: ...[as detailed in para. 167].

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 4D and 19.5, and consistently with the cases cited above and with Rule 5 of Section 18.

177. As has since become apparent, and as was common ground following publication of the Partial Award and delivery of Mr [B]'s statement referred to at para. 55 above (and contrary to the understanding of the Arbitral Tribunal as recorded in the Partial Award), the only item of Major Equipment that had been installed on the Vessel at the time of the Partial Award was a portion of the moon pool identified at item (k) of the Article 1 definition of "Major Equipment". None has since been installed.

178. Claimant contended that the Partial Award had decided that property in equipment could not and did not pass before delivery to and installation on the Vessel, notwithstanding prior payment, and that therefore the Partial Award had finally determined the issue of ownership with respect to all items of equipment, to the effect that title had only passed in the hull and in equipment affixed to the hull, and therefore the only equipment in which property could have passed (apart from the hull itself) was the portion of the moon pool that had been installed.

179. Respondents contended, to the contrary, that the Partial Award was only dispositive in relation to the hull and equipment referred to in para. 214 thereof, and that, whilst the reasoning in the Partial Award includes various observations as to the passing of property, it contains no ruling that property in other equipment which had not been affixed to the hull - and in particular the items of Major Equipment (as defined) for which Respondents had made payment by virtue of the third and fourth milestone payments under Articles 4C and 4D of the Contract, but which had not been installed on the Vessel (contrary to the Arbitral Tribunal's understanding at the time of the Partial Award) - had not passed to Respondents.

180. Respondents pointed out that the Arbitral Tribunal had not, for the purposes of the Partial Award, been asked to determine the effect of the post-termination provisions of the Contract, and in particular Article 25.5, set out and considered below.

181. Respondents also pointed out that another issue left unresolved by the Partial Award was which of the two Respondents was the owner of the hull and any equipment in which property had passed.

182. The remaining issues as to passing of property are dealt with in section IV.B(2) below. The issue of which of the two Respondents has title is dealt with in section IV.B(3) below.

IV.B(2) Passing of property in equipment and materials that has not been affixed to the hull

183. The Arbitral Tribunal accepts Respondents' submission that the Partial Award is only dispositive in relation to the hull and the equipment referred to in para. 214 of the Partial Award, and rejects Claimant's submission that the Partial Award decided that property in equipment could not pass before delivery to and installation on the Vessel. As paras. 166 and 167 of the Partial Award (quoted above) make clear, the Arbitral Tribunal believed and stated that it was unnecessary for it to decide whether property in the main engines, generators, and other items of Major Equipment had passed when various certificates were issued upon or following payment of the Third and Fourth Milestone Payments. Those paragraphs record the Arbitral Tribunal's decision that property in such items of Major Equipment passed "no later than upon installation" (para. 166) / "at the latest, upon their delivery to and installation on the Vessel" (para. 167). There is no finding that property in such items did not pass and could not have passed before delivery and installation.

184. It is convenient to set out, once again, the relevant provisions of the English Sale of Goods Act of 1979 regarding the passing of property:

Section 16

... 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

(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

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.

185. The intention of the Parties as to passing of property is be determined from the provisions of the Contract, construed as a whole, and set against the background to the Contract.

186. As Respondents submitted, in a shipbuilding context, one important general consideration is whether the contract (1) is a contract where the shipbuilder provides full refund guarantees as security; or (2) where the primary form of security is title in the hull and equipment itself. Another relevant consideration, in this case, is the fact that Claimant was a single-project SPV. Unlike a large yard (which might have numerous vessels under construction or in the pipeline), Claimant would only have been purchasing equipment for the Vessel. In circumstances such as these, it is not unlikely that equipment will be appropriated to the contract long before it is installed into the ship. This is borne out by the terms of the Contract itself.

187. In relation to the Major Equipment, the Contract specifically provided that title was to pass to [Second Respondent] immediately prior to payment of various instalments of the price:

(a) Article IV(C) ("Payment No. 3") provided that payment was to be made only after title to the 4 main engines and 2 generators has passed. This equipment was required to be "delivered, ex-works respective factory and tested", but was not required to be either (a) delivered to the yard; or (b) installed on the Vessel.

(b) Article IV(D) ("Payment No. 4") provided that payment was to be made only after title to all of the remaining Major Equipment had unconditionally passed to [Second Respondent]. This equipment was required to be "shipped to be delivered to the Vessel", but again was not required to be either (a) arrived at the yard; or (b) installed on the Vessel.

188. Payment no. 3 was made on 15 April 2007. Payment no. 4 was made on 3 June 2007. Accordingly, the Arbitral Tribunal concludes that, in accordance with the intention of the parties (and on the assumption that Claimant was in a position to pass title):

(a) Title to the 4 main engines and 2 generators passed from Claimant to Second Respondent on or before 15 April 2007.

(b) Title to the other items of Major Equipment as defined in Article 1 of the Contract passed from Claimant to Second Respondent on or before 3 June 2007.

189. The position in relation to the other items of equipment and material is different. In particular, the transfer of title is not specifically linked to payment milestones, but governed by other provisions of the Turnkey Agreement:

(a) At the January 2009 hearing, the Tribunal considered Article 19.5 of the Contract, in relation to the passing of property in equipment other than Major Equipment. Article 19.5 provided that "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". At para. 172 of the Partial Award, the Tribunal stated that, whilst it was possible that the Respondents had paid for such equipment that had not been incorporated in the Vessel "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 19.5".

(b) The Respondents did not seek to interfere with this conclusion. However, at the time of the Partial Award (as recorded in paragraph 174) the Tribunal was not able to determine whether the Contract had been terminated by [Second Respondent] exercising a contractual right or by Claimant accepting a repudiation. For the reasons set out in Section IV.D below, the Arbitral Tribunal has concluded that the (novated) Contract was lawfully terminated by [Second Respondent] in exercise of its contractual rights under Articles 25.1 and 25.2.

(c) Accordingly, the Tribunal must now consider the effect of the post-termination provisions in Article 25 of the Contract.

190. In the Counterclaim, at Section IV ("Duties Surviving Termination"), para. 66, the Respondents pleaded a right to have all work and material transferred to them pursuant to Article 25.5 of the Contract. Article 25 included the following provisions:

(a) Clause 25.3 provided that "termination of this Contract for these reasons shall not invalidate this Contract but shall operate to terminate the Contractor's right to proceed with the performance of Contractor's obligations and discharge [Second Respondent] from any further obligation under this Contract".

(b) Clause 25.5 provided as follows:

[Second Respondent] has the right to require the Contractor to transfer title and deliver to [Second Respondent] in the manner and to the extent directed by [Second Respondent], any completed and paid for, works material or information hereinafter referred to as "the Material" as the Contractor has had specifically produced or specifically acquired for the performance of such part of this Contract as has been terminated and which if this Contract were completed would have been required to be furnished to [Second Respondent] ...

191. The Arbitral Tribunal accepts Respondents' submission that the effect of clause 25.5 is that, where the Contract has been terminated by [Second Respondent] under Article 25, [Second Respondent] is entitled to demand the transfer of title to all material that Claimant has had specifically produced or specifically acquired for the performance of the Contract, title to which has not already passed under clause 19.5 (or any other clause). It is similar to clause 19.9, but operates upon Termination rather than Delivery:

(a) Clause 19.9 was (as the Arbitral Tribunal stated in para. 173 of the Partial Award) "a sweep-up provision to ensure that insofar as there is anything in which title has not passed at the time of Delivery ... title in such items passes on Delivery".

(b) Clause 25.5 is similarly a sweep-up provision. Insofar as title had not already passed, it obliged Claimant to transfer title upon Termination. The only requirements are that the material has been "paid for" and that it was "specifically produced or specifically acquired for the performance of such part of this Contract as has been terminated and which if this Contract were completed would have been required to be furnished to [Second Respondent]".

192. This, the Arbitral Tribunal finds, is true of all equipment purchased by Claimant, and all other materials produced or acquired by Claimant, during and for the purposes of the construction of the Vessel. Claimant was a one-project SPV that was entirely dependent on funding from Respondents to purchase such equipment and other material. In short, all equipment and other material produced or acquired for the purposes of the Contract will have been "paid for" by Respondents; and it would all have been furnished to Respondents if the Contract had been completed.

193. Because (as discussed below) the Contract was terminated by [Second Respondent] exercising its contractual right of termination under Article 25 (rather than by Claimant for repudiation by Respondents or either of them), [Second Respondent] was entitled to exercise its rights under clause 25.5. It did so in its termination letter of 17 January 2008: "As a consequent [sic] of this termination, [Claimant] is also obliged under Section 25.5 of the Contract to immediately deliver to [Second Respondent] all material and information acquired for the performance of the Contract ..."

194. Accordingly, the Arbitral Tribunal concludes that Claimant is obliged to transfer title and deliver to [Second Respondent], in the manner and to the extent directed by [Second Respondent], any completed and paid for works and materials (including drawings, manuals and certificates) that Claimant has had specifically produced or specifically acquired for the performance of the Contract.

195. Attached as Schedule 1 to this Award is a list of all equipment, title to which has already passed to [Second Respondent] (the hull and - assuming that Claimant was in a position to transfer title - the Major Equipment), or which Respondents contend has been supplied or acquired by Claimant for installation on the Vessel. This list has been derived by Respondents from a document produced by Claimant in which it identified (amongst other things) the suppliers of equipment and the sums that the suppliers had been paid or were owed. Schedule 1 has been prepared by Respondents from Claimant's list as follows:

(a) The equipment suppliers identified in Claimant's document have been inserted into Schedule 1. (The suppliers of services and the overheads have been omitted.)

(b) The descriptions of the equipment in Claimant's document (e.g. "cranes") have been replaced with more detailed descriptions ... where this is practical and necessary so as to ensure that there is no confusion about the identity of the equipment being referred to.

(c) In Claimant's document, payments and part-payments are identified in Section A and outstanding amounts are identified in Section B. In Schedule 1, the paid and outstandings have been added together so as to identify the total price alleged by Claimant for each item of equipment (or group of items).

196. Attached as Schedule 2 hereto is a list, prepared by Respondents, of other materials, being manuals, drawings and certificates relating to the hull and equipment.

IV.B(3) Which Respondent is owner?

197. For the reasons given in Section IV.A above, the Arbitral Tribunal has concluded that the Tripartite Agreement was effective to replace [Second Respondent] for [First Respondent] as Claimant's contractual counterparty to the Contract. Accordingly, [Second Respondent] (not [First Respondent]) is, as Respondents submitted, the correct party for all aspects of this dispute.

IV.B(4) Conclusion

198. For the reasons given in the Partial Award and above, title in (1) the hull; and (2) the Major Equipment as defined in Article 1 of the Contract have already passed to [Second Respondent] (insofar as Claimant had previously had, or had acquired, title thereto).

199. Further, as mentioned in paragraphs 195 and 196 above, Respondents presented Schedules 1 and 2, which are consistent with the other evidence produced in this arbitration, and to which Claimant raised no objection. Accordingly, the Tribunal considers it appropriate to accept the accuracy of these Schedules, without modification. Thus, Claimant is obliged to transfer title and deliver to [Second Respondent], in the manner and to the extent directed by [Second Respondent] and to the extent that it is in Claimant's power to do so, all of the equipment identified in Schedule 1; and all of the other manuals, drawings and certificates identified in Schedule 2. Second Respondent, having been declared the owner of the hull, is entitled to resume construction of the Vessel.

IV.C. Whether a breach of Contract occurred and, if this is the case, which party was in breach

IV.C(1) Introduction

200. Claimant's case on breach by Respondents is set out at paragraphs 7 and 8 of the Request for Arbitration. In short, Claimant asserted that [First Respondent] "directed" Claimant to make a number of changes to the Technical Specification, but that when Claimant sought to negotiate an increase in Contract Price and extension to the Delivery Date, [First Respondent] "stubbornly refused to engage [Claimant] in negotiations". Claimant alleged that, this way, [First Respondent] "forced [Claimant] to bear the cost and time consequences of the very changes which [First Respondent] itself had requested, in direct contravention of Article 8 of the Contract".

201. Respondents contended that there are two distinct ways in which Claimant breached the Contract:

a) First, Claimant failed to deliver the Vessel on time (or at all).

b) Secondly, Claimant failed to complete the Vessel according to the agreed specifications (or at all).

IV.C(2) Claimant's allegations of breach

202. The Contract clearly provided that

a) Any change to the Technical Specification had to be agreed in writing. This was true whether or not the change had an impact on the Contract Price or Delivery Date.

b) If the change had an impact on the Contract Price or Delivery Date, the change (and impact) had to be agreed in a Contract Amendment Form in the form set out at Annex K of the Contract. This had to be signed by both parties "prior to carrying out any such alteration/modification" (Article 8.1).

c) Even if the change was minor and had no impact on the Contract Price or Delivery Date, it could only be implemented following "a formal Amendment to this Contract" (Article 8.2).

d) Thus Claimant was not in any circumstances entitled to change the Technical Specification without the agreement in writing of the First or (after the Tripartite Agreement) the Second Respondent (Article 8.4).

203. In this contractual context, the Arbitral Tribunal accepts Respondents' submission that Claimant's allegations of breach must necessarily fail (even assuming that the factual allegations it makes are accurate), for the following reasons:

a) Claimant alleged that it made alterations without any agreement in writing. This is precisely what was prohibited by the Contract.

b) Claimant alleged that it made the alterations prior to any agreement as to the impact this would have on the Contract Price or Delivery Date. Again, this is in direct contradiction to what was required by the Contract.

c) Claimant sought to excuse its behaviour by asserting that Respondents "instructed" or "directed" Claimant to make these changes. Even if Respondents or either of them had done so, Claimant ought to have triggered the formal amendment process. Changes that had no impact on the Contract Price or Delivery Date would likely have been uncontroversial, but changes that were claimed to have an impact on the Contract Price or Delivery Date could then have been discussed and agreed, or not. If Claimant maintained that a proposed change would have an impact on Contract Price or Delivery Date that was unacceptable to [Second Respondent], it is likely that no agreement would have been reached, and Claimant would have been contractually obliged to continue construction according to the un-changed Technical Specification.

204. It is not clear whether Claimant's main complaint is (1) that Respondents failed to negotiate; or (2) that Claimant has borne the cost of the alleged changes. Either way, Claimant's case must necessarily fail, because:

a) There is no room for implying any obligation to negotiate alterations to the Contract Price or Delivery Date after Claimant has implemented changes to the Technical Specification. Any such implied obligation would be directly contrary to (1) the contractual scheme, which required such matters to be agreed prior to Claimant implementing changes to the Technical Specification; and (2) the express prohibition on Claimant effecting changes prior to agreement in writing. The relevant parts of Article 8 are set out above. They make it absolutely clear that "in no circumstances" were any changes to be made without [Second Respondent]'s agreement in writing.

b) Nor does the Contract impose on [Second Respondent] any obligation to pay for the changes. [Second Respondent]'s obligation is to pay the agreed Contract Price. Absent a formal Contract Amendment on the Annex K form, that price is fixed.

205. In any event, Respondents have demonstrated that the factual premise of Claimant's case is false:

a) On about 18 October 2007, Claimant handed Capt. [B] details of 14 items of work that it alleged were (1) "extra"; and (2) had been requested by [Second Respondent]. The same information was then provided under cover of Claimant's letter of 1 November. In respect of each item, Claimant included:

i) a short description of the alleged "extra works" (in some cases supported by a more detailed description);

ii) a Contract Amendment form.

b) In total, Claimant sought to increase the Price by [amount] and to extend the delivery date by 731 days (i.e. 2 years).

c) Contrary to what Claimant alleges (and notwithstanding that [Second Respondent] was under no obligation to discuss changes that had been made without its agreement) [Second Respondent] did not "stubbornly refuse to engage [Claimant] in any negotiations". On the contrary, following receipt of this formal application, [Second Respondent] considered Claimant's demands and then responded in what the Arbitral Tribunal concludes was a detailed, considered and constructive manner, on 18 December 2007. In this letter:

i) In respect of three items (Items 1, 2 and 3), [Second Respondent] did not dispute that Claimant had done some extra work, but disputed the amount of work done and the cost and schedule impact claimed by Claimant.

ii) In respect of one item (Item 7), [Second Respondent] accepted that it had suggested a change, but complained that Claimant had not submitted details of what was required, or the cost or schedule impact, prior to making modifications.

iii) The rest of Claimant's claims were rejected entirely for a variety of reasons:

1. A number of items (Items 4, 5 and 6) were not changes or "extra work" at all, but work that was required by the (un-amended) Contract.

2. Two changes (Item 8 and 12) had already been factored into the Price, when it had been increased from the original quotation of [amount] to [amount].

3. A large number of the changes (Items 9, 10, 11, and 13) had never been requested by Respondents.

4. One item (Item 14) had been suggested by Claimant and following Claimant's failure to provide the necessary paperwork requested by [Second Respondent] (including the paperwork required under the Contract) in order to consider it, was expressly rejected by [Second Respondent].

d) In the same letter, [Second Respondent] also identified a number of additional changes that Claimant had made without its consent. This included, most significantly, changing the Dynamic Positioning System and the specification of the crane.

e) [Second Respondent] also discussed changes with Claimant both before and after this exchange of correspondence.

206. Accordingly, even if [Second Respondent] had been under any obligation to discuss the impact of the 14 identified items on the Contract Price and schedule, it complied with this obligation. It was certainly under no obligation simply to agree whatever Claimant asked for, in particular in circumstances where (1) Respondents had not requested (and even objected to) a number of changes; and (2) [Second Respondent] disputed the Price increases and delays claimed by Claimant.

207. The Arbitral Tribunal therefore concludes that all of Claimant's allegations of breach fail, and must be dismissed, as must Claimant's claim that it was entitled to an increase in the Contract Price in respect of changes in the specification:

a) [Second Respondent] was not subject to any duty to negotiate or agree anything with Claimant. To the extent that Claimant made changes prior to, and without, [Second Respondent]'s agreement in writing:

i) Claimant was itself in breach of the Contract; and

ii) Any difficulties encountered by Claimant were entirely of its own making.

b) In any event, many of the changes alleged by Claimant could never have triggered any increase in Contract Price or delay to the Delivery Date. Notwithstanding that it was under no duty to do so, [Second Respondent] did engage Claimant in discussions relating to the 14 items identified by Claimant, but agreement could not be reached for the reasons identified above.

IV.C(3) Claimant's breaches

208. Respondents' case on breach was that:

a) The Vessel ought to have been delivered on 31 July 2007, but was not.

b) No extension to the Delivery Date was agreed.

c) Accordingly, Claimant was in breach.

d) Claimant remained in breach until the Contract was terminated on 17 January 2008. As at that date, the Vessel was 24 weeks late.

e) Furthermore, Claimant failed to complete the work that it was contracted to do either by 31 July 2007, 17 January 2008, or at all.

f) Claimant was also in breach for non-performance (as well as late delivery). The breach consisted in failure to perform the work required by the Contract. Claimant was thereby in breach of many different terms of the Contract. But in circumstances where (1) Claimant failed to complete the Vessel; and (2) [Second Respondent] has lawfully terminated the Contract, precise identification of the clauses breached along the way is unnecessary.

209. The Arbitral Tribunal finds that Claimant was indeed clearly in breach of Contract in failing to deliver the completed Vessel by the contractual Delivery Date of 31 July 2007 - a date which was never extended; and that Claimant remained in breach for non-delivery until the Contract was terminated on 17 January 2008, at which time the Vessel was 24 weeks late. Because, for the reasons given in the next section, the Arbitral Tribunal has concluded that [Second Respondent] was entitled to terminate the Contact on that date, as it did, it is unnecessary for it to make any findings as to the other breaches in performance alleged by Respondents.

IV.D. Whether the Contract was validly terminated by Claimant, or by Respondents or either of them

IV.D(1) Introduction

210. Claimant's case on termination was that [First Respondent] had been "wound up as that term is used in the [Contract]", and that it was entitled to and did terminate the Contract in reliance on Article 28.2. Claimant also asserted that it was not bound by the Tripartite Agreement, and that in connection with that (but on grounds that were not entirely clear), [First Respondent] had repudiated the Contract.

211. Respondents' case on termination was that:

a) The Vessel ought to have been delivered on 31 July 2007, but was not.

b) [Second Respondent] gave notice under the Contract requiring Claimant to remedy this breach.

c) Claimant failed to remedy the breach.

d) Consequently, [Second Respondent] exercised its contractual right to terminate the Contract.

212. With regard to Claimant's case on termination, Respondents submitted that that case was no more than a transparent attempt to avoid the consequences of [Second Respondent] 's termination, and is premised on two false assertions:

a) First, Claimant 's assertion that [First Respondent] had been "wound up as that term is used in the [Contract]" was wrong, as set out in more detail below.

b) Secondly, Claimant's assertion that it was not bound by the Tripartite Agreement was likewise incorrect, as indeed the Arbitral Tribunal has concluded. Claimant's assertion that [First Respondent] had somehow repudiated the Contract was, so Respondents submitted, also wrong for the reasons given below.

213. Respondents also correctly pointed out that Claimant had muddled the sequence of events in suggesting that its reliance on the SPA and Tripartite Agreement as grounds for termination pre-dated [Second Respondent] 's termination of the Contract. It did not. As can be seen from the correspondence, Claimant only sought to rely on the Tripartite Agreement and the SPA after [Second Respondent] had exercised its right of termination.

IV.D(2) Had [First Respondent] been wound up?

214. The only factual issue that arises in respect of Claimant's case on termination is whether or not, as at 16 January 2008, [First Respondent] had been "declared wound up" for the purposes of Article 28 of the Contract.

215. It is clear, on the evidence, that [First Respondent] had not been wound up:

a) As Respondents submitted, a company is only "declared wound up" if a court or other competent judicial or administrative body states that it has been wound up. In this context, "wound up", means "fully closed". It is not enough that [First Respondent] had sold its cable business to [Second Respondent]. Even if it was completely inactive, this is not the same as being "wound up". An inactive company may become active. A "wound up" company cannot.

b) In support of its claim that [First Respondent] has been "wound up", Claimant produced two single-sheet reports from a company ... Neither identifies the individual responsible for preparing the report, neither is signed, and each contains the following "Restricted Use Warning":

This report was prepared by the originator ... The recipient agrees that reports and information received from the originator are strictly confidential and intended solely for the private and intended use of the recipient. Any other use and any communication, publication, or reproduction of the reports or any portion of their contents without the written consent of the originator is strictly forbidden.

In the absence of written consent, and in the light of all the other evidence, the Arbitral Tribunal is unable to find that these reports are of any probative value.

c) Thirdly, and most significantly, the allegations in the reports that [First Respondent] was "no longer trading" and, subsequently, "de-registered" are not supported by any documentary evidence. In particular, they are not supported by any document from the [local] Commercial Registration Department. On the contrary, documents from the [local] Commercial Registration Department demonstrate that [First Respondent] was registered, licensed to trade, and still had directors:

i) A certificate issued by the Assistant Manager - Commercial Registration, dated 3 March 2008, evidences the existence of [First Respondent] as at that date, and provides details such as the registration number, the name of the sole shareholder ..., and the names of the directors.

ii) A trading licence, issued on 1 April 1998 evidences that [First Respondent] was licensed to carry on its business at the material time.

Further, the auditors of [First Respondent] ... have also confirmed, by letter dated 21 January 2008, that they were then in the process of finalising the accounts for the year ended 31 December 2007; that "[First Respondent]] is a legally registered entity operating in ... and is duly licensed by [the local authority]"; and that "to the best of our belief and knowledge, [First Respondent] is in good standing and will continue to operate in the foreseeable future".

216. The Arbitral Tribunal therefore concludes that [First Respondent] is still a valid legal entity registered [locally], and has not been "declared wound up".

IV.D(3) Conclusions

217. It follows, from the above analysis regarding the continued existence of [First Respondent], that Claimant's case that it was entitled to terminate the Contract under Article 28 necessarily fails, and that case is hereby dismissed.

218. The Arbitral Tribunal adds, for completeness, that even if [First Respondent] had been "declared wound up", this would not have provided Claimant with any basis for terminating the Contract, as [First Respondent] had been replaced as party by [Second Respondent]. Accordingly, Claimant would only have been entitled to terminate if [Second Respondent] had been wound up (which is not alleged by Claimant).

219. Likewise, Claimant's allegation that it "accepted" a "repudiation" by [First Respondent] must fail:

a) As Respondents submitted, nothing alleged by Claimant was capable of amounting to a repudiation. By entering into the SPA, [First Respondent] did not renounce the Contract, it simply sought to assign the benefit and burden to [Second Respondent]. As a matter of English law, this was effective to assign the benefit of the contract, but only operated as a sub-contract of the performance of the obligations under the Contract. This is why the parties then concluded the Tripartite Agreement.

b) The Tripartite Agreement was valid and binding on Claimant, for the reasons given above.

c) Even if personal performance by [First Respondent] had been required (which it was not), there is no credible evidence to support Claimant's case that [First Respondent] would not, personally, have been able to perform the Contract. On the contrary:

i) Until 31 December 2007, [First Respondent] had a letter of credit in place. This expiry date was 5 months after the contractual Delivery Date and at a point in time where all payment obligations would have long been performed had Claimant also performed its obligations. Accordingly, its principal obligation (namely the obligation to pay) was secured;

ii) By the terms of the SPA, [Second Respondent] had assumed all liabilities. Accordingly, in the event that [First Respondent] was obliged to perform personally, it was entitled to be indemnified by [Second Respondent]. Both companies were subsidiaries of [parent company], and there is no evidence to suggest that the parent company would not have stood behind each of its subsidiaries.

d) The Arbitral Tribunal notes, again for completeness, that Respondents were correct in their contention that even if (contrary to the foregoing) [First Respondent] had repudiated the Contract, Claimant did not purport to "accept" any such repudiation. [Claimant's counsel]'s letter of 16 January 2008 said that Claimant had exercised a contractual right of termination under Article 28. It did not say that Claimant was accepting a repudiation of the Contract by either Respondent.

220. Thus the Arbitral Tribunal has concluded that Claimant's case on termination (whether under Article 28 or based on an alleged repudiation) fails and must be dismissed.

221. The Arbitral Tribunal has further concluded that, for the reasons summarised below, [Second Respondent] was entitled to and did terminate the Contract:

a) In failing to deliver the Vessel by 31 July 2007, Claimant was in breach.

b) [Second Respondent] gave Claimant notice to remedy the breach within 14 days on 7 October 2007, and again on 24 December 2007. Either was sufficient to satisfy the requirements for such notice in Article 25.1 of the Contract.

c) Claimant failed to remedy the breach within 14 days or at all.

d) Accordingly, [Second Respondent] was entitled to terminate the Contract, and it did so by letter of 17 January 2008.

IV.E. Loss and damages

222. Respondents alleged that the loss and damage suffered by them fell into 2 categories:

a) Liquidated damages for late delivery; and

b) Damages for failure to complete and deliver a Vessel constructed to the specification demanded by the Contract.

223. As regards late delivery:

a) Article 6.1 of the Contract provided that, absent an agreed extension or force majeure, Claimant was liable to pay liquidated damages in "an amount equivalent to 0.5% (Zero Point Five Per Cent) of the Contract Price per each calendar week or pro-rata for part thereof during such period of delay until the Delivery of the Vessel subject to a maximum amount not exceeding 10% (Ten Per Cent) of the Contract Price".

b) Accordingly, [Second Respondent] submitted that it was entitled to liquidated damages for delay in delivery of the Vessel, equal to 0.5% of the Contract Price up to a maximum of 10%.

c) As the Vessel is considerably more than 20 weeks late (20 weeks from the contractual Delivery Date of 31 July 2007 having expired on 17 December 2007), [Second Respondent] submitted that it was entitled to 10% of the Contract Price (i.e. 0.5% per week for 20 weeks), which equals [amount].

224. As regards damages for other performance failures:

a) Article 6.2 provides that

[Second Respondent]'s right to Liquidated Damages under this Contract shall not affect any other rights which [Second Respondent] may have under this Contract. Payment of Liquidated Damages shall not relieve the Contractor from the obligation to carry out any of the works or from any other liability or obligation under this Contract.

This clause makes clear, as Respondents submitted, that, whilst damages for late delivery are limited by clause 6.1, damages for other breaches of the Contract are not.

b) However, Article 6.3 provides that "notwithstanding anything to the contrary, neither [Second Respondent] nor the Contractor shall be liable for any indirect or consequential damages, including loss of profit, etc.".

c) [Second Respondent] accordingly claimed only the losses alleged to have flowed directly from Claimant's alleged deviations from the agreed Technical Specifications and its failure to complete the Vessel. It did not claim any loss of earnings or other consequential loss.

225. The English law principles applicable in cases such as this, were considered by the House of Lords in Ruxley Electronics v. Forsyth [1996] 1 A.C. 344. In that case, Lord Jauncey summarised the position as follows at page 355:

The general principles applicable to the measure of damages for breach of contract are not in doubt. In a very well known passage Parke B. said in Robinson v. Harman (1848) 1 Exch. 850, 855:

"The next question is: what damages is the plaintiff entitled to recover? The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages, as if the contract had been performed."

In British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. [1912] A.C. 673, 688-689, Viscount Haldane L.C. said:

"The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases ... Subject to these observations I think that there are certain broad principles which are quite well settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach ..."

More recently in what is generally accepted as the leading authority on the measure of damages for defective building work, Lord Cohen in East Ham Corporation v. Bernard Sunley & Sons Ltd. [1966] A.C. 406, 434-435, said:

"the learned editors of Hudson's Building and Engineering Contracts, 8th ed. (1959) say at p. 319 that there are in fact three possible bases of assessing damages, namely, (a) the cost of reinstatement; (b) the difference in cost to the builder of the actual work done and work specified; or (c) the diminution in value of the work due to the breach of contract. They go on: 'There is no doubt that wherever it is reasonable for the employer to insist upon reinstatement the courts will treat the cost of reinstatement as the measure of damage.'"

226. Difficulties may arise where the cost of reinstatement is out of all proportion to the diminution in value (as was the case in Ruxley), but the Tribunal is satisfied that no such problems arise in the present case.

227. It is clear that a substantial amount of work remains to be done before the Vessel is of any use or value to anyone. The Arbitral Tribunal has concluded that the cost of the work necessary to complete the Vessel to the contractual standard is the best measure of [Second Respondent]'s loss. It is also the measure anticipated by Article 25.6 of the Contract. It is in addition the only sensible way to calculate [Second Respondent]'s loss, as there is not likely to be any true or transparent market for this Vessel, particularly in its partially-completed state.

228. [Second Respondent] has obtained quotations from the ... Shipyard, which is the yard at which the Vessel was being built. The Arbitral Tribunal is satisfied that, as submitted by Respondents, [the] Shipyard is best placed to assess the cost of completing the Vessel to the contract specification from its current state, as it is the yard that has performed the work to date and at which the Vessel remains.

229. The ... Shipyard's initial quotation for the completion of the Vessel and additional charges for mooring, security and storage, totalled [amount]. However, following negotiations in mid-2010, the ... Shipyard provided a revised quotation which it stated allowed "the highest possible price reduction". In this quote, the total for the costs going forward was reduced to [amount]. However, the ... Shipyard added the charges for the services that had already been provided (such as mooring, security and storage from October 2007 to June 2010) as separate items, bringing the total to [amount].

230. Respondents submitted that the total costs to completion were likely to exceed this figure by a considerable sum, because:

a) The ... Shipyard had already reduced its quotation considerably; it claimed to be giving the "the highest possible price reduction"; and there is no evidence that [this Shipyard] or any other yard would be willing to do the work for a lower figure.

b) Since June 2010, mooring, security, storage and other ongoing charges will have continued to accrue. In the ordinary course of things, these charges will have to be paid if [Second Respondent] is to take possession of the Vessel free of any encumbrance or risk of arrest upon completion.

c) In addition, it is not currently clear to what extent [Second Respondent] will have to pay other suppliers of equipment and services for equipment and services supplied prior to termination. There is evidence to suggest that the total liability could be substantial.

d) The figure of [amount] does not include the costs that will (as a result of the termination) now be incurred directly by [Second Respondent] in overseeing and supervising the construction of the Vessel.

231. Notwithstanding the foregoing, [Second Respondent] limited its damages claim to [amount].

232. Respondents accepted that, against these sums of [amount] liquidated damages and [amount] damages in respect of costs to complete, credit must be given for:

a) [amount] recovered under the performance guarantees; and

b) the balance of [amount] that would have been due under the Contract had it been performed.

233. This leaves a balance of [amount].

234. The Arbitral Tribunal is satisfied that [Second Respondent] is, subject to paras. 235-236 below, entitled to damages in this net sum claimed as well as liquidated damages for delay in delivery, in the sum claimed. [Second Respondent] is clearly entitled to damages in respect of Claimant's failure to complete the Vessel in accordance with the contractual specification (or at all), and the Arbitral Tribunal is satisfied that the costs to completion will (subject to paras. 235-236) be no less than the ... Shipyard's revised quotation (inclusive of additional charges) of [amount]. As claimed by Respondents, the Tribunal considers, in the exercise of its discretion with regard to awarding interest, that Claimant should pay to the Second Respondent compound interest on both the Liquidated Damages and the General Damages at US$ 3-month LIBOR plus 1 per cent, to be compounded on a quarterly basis, commencing on 18 December 2007 and running (before and after the date this Award is notified to the Parties) until the date of payment for the Liquidated Damages, and commencing on the date this Award is notified to the Parties and running until the date of payment for the General Damages.

235. However, Respondents correctly recognised that if and to the extent [Second Respondent] is able to recover any of the equipment now identified in Schedule 1 to this Award, and this leads to any saving in the cost of completion, Claimant should receive credit for any saving less the costs incurred by [Second Respondent] in recovering the equipment. This will only happen if [Second Respondent] recovers equipment the cost of which is included in the ... Shipyard quotation. The Arbitral Tribunal thus decides that if and to the extent that the cost of completing the Vessel is reduced by recovery and use, or off-set by recovery and sale, of the equipment identified in Schedule 1, Second Respondent shall credit Claimant in an amount equal to: (1) the amount of any such reduction or sale price; less (2) the costs incurred by the Second Respondent in recovering, using or selling such equipment, each such credit to operate as a partial discharge of the award related to the General Damages or, if that award has been paid in full by Claimant to Second Respondent, to be paid by Second Respondent to Claimant.

236. As Respondents submitted and as is in any event clear to the Arbitral Tribunal (not least in the light of Claimant's failure to participate in the final stages of the arbitration), it is impossible to ascertain the extent to which this will happen, if at all. However, it is right that the relief granted by the Tribunal should reflect this so as to avoid any risk of double recovery.

IV.F. Relief sought

237. Claimant has asked 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 Vessel;

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 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;

vii) to award such other and further relief as the Tribunal may deem appropriate.

238. In the light of the foregoing discussion and conclusions, it follows that all Claimant's claims, including its claim for a lien, fail and must be dismissed.

239. Respondents have asked for the following ruling and declaration in relation to the identity of the parties and termination:

i) That the Contract between Claimant and First Respondent was novated, such that First Respondent was replaced by Second Respondent as the party to the Contract;

ii) That the Contract was lawfully terminated by Second Respondent, by letter dated 17 January 2008 from [its counsel].

240. In relation to the hull, equipment and other materials, Respondents have asked for:

i) A ruling and declaration that, insofar as Claimant has acquired title to or in future acquires title to:

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

2. The equipment listed in Schedule 1 hereto; and

3. The manuals, drawings and certificates listed in Schedule 2 hereto,

such title is vested in, or immediately upon Claimant acquiring title will vest in, Second Respondent and Second Respondent is, or will become, the owner of such hull, equipment, manuals, drawings and certificates.

ii) An order that Claimant take all reasonable steps within its power and any steps reasonably requested of it by Second Respondent to enable Second Respondent to take possession of or otherwise assert its rights in respect of:

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

2. The equipment listed in Schedule 1; and

3. The manuals, drawings and certificates listed in Schedule 2.

241. In relation to loss and damage suffered, the Respondents have asked for:

i) An order that Claimant pay Second Respondent liquidated damages in the sum of [amount] (the "Liquidated Damages");

ii) An order that Claimant pay Second Respondent general damages in the sum of [amount] (the "General Damages" - being the costs to complete less total credits of [amount]);

iii) A declaration that if and to the extent that the cost of completing the Vessel is reduced by recovery and use or off-set by recovery and sale of the equipment identified in Schedule 1, Second Respondent shall credit Claimant in an amount equal to:

1. the amount of any such reduction or sale price; less

2. the costs incurred by the Second Respondent in recovering, using or selling such equipment,

each such credit to operate as a partial discharge of the proposed General Damages award or, if that award has been paid in full by Claimant to Second Respondent, to be paid by Second Respondent to Claimant.

242. Respondents have further asked for a ruling and declaration that Second Respondent is entitled to resume construction of the Vessel.

243. With regard to interest on any sums awarded, Respondents have asked for:

i) An order that the Claimant pay the Second Respondent compound interest on the Liquidated Damages at LIBOR plus 1 per cent, to be compounded on a quarterly basis, commencing on 18 December 2007 and running (before and after the date of the award) until the date of payment, such interest amounting to ... as at 17 March 2011 and continuing thereafter;

ii) An order that Claimant pay the Second Respondent compound interest on the General Damages at LIBOR plus 1 per cent, to be compounded on a quarterly basis, commencing on the date of the award and running until the date of payment of the General Damages.

244. In the light of the Arbitral Tribunal's conclusions as set out above (and in the Partial Award), Second Respondent is in the Arbitral Tribunal's judgment entitled to the declaratory and monetary relief sought by Respondents as described in paras. 239-243 above, including compound interest as claimed on both the Liquidated Damages and the General Damages.

245. Finally, Respondents have asked for an order for costs in the amount of ... as set out in a schedule of costs giving a breakdown of legal costs and disbursements for Phase I of the arbitration and up to 31 December 2010 - total [amount] (including costs of the initial stages such as such as preparation of the Answer to the Request for Arbitration, and Counterclaim, and participation in preparation of the ToR), and legal costs and disbursements from 19 January 2011 - total [amount] (including the costs of preparation for and conduct of the 12 April 2011 hearing). Thus the costs claimed by Respondents totalled [amount] (exclusive of Respondents' share of the advance on costs paid to the ICC).

246. Respondents were largely successful in their submissions at Phase I of the arbitration. Respondents have also succeeded in their submissions on all major issues decided in this Award.

247. The Arbitral Tribunal has therefore decided, in accordance with the widely-recognised principle that costs should follow the event, that Claimant should bear and pay its own costs, and should also pay Respondents' reasonable costs of the arbitration. The Arbitral Tribunal refers to Article 31 of the ICC Rules of Arbitration.

248. As to the quantum of Respondents' legal costs and disbursements, the Arbitral Tribunal decides that the overall figure claimed is broadly reasonable and proportionate, having regard to the number and complexity of the issues raised in this arbitration, and to the lengthy procedural history of the arbitration as summarised above. However, it is appropriate to make some discount, as Respondents must bear some responsibility for the long drawn-out nature of the proceedings. Accordingly, the Arbitral Tribunal has decided to award Respondents the total sum of ... in respect of Respondents' legal costs and disbursements.

249. Finally, as to the fees and expenses of the ICC and the Arbitral Tribunal, these have been fixed by the ICC Court in the total sum of ... These should, in the judgment of the Arbitral Tribunal, be borne in full by Claimant as the unsuccessful party. As Claimant has paid [amount], and Respondents have paid [amount], by way of advances on costs, it follows that Claimant must reimburse Respondents [amount] in respect of the advances on costs paid by Respondents.

V. Dispositive award

250. Accordingly, the Tribunal adjudges, declares and awards as follows:

(i) That the Turnkey Contract dated 20 August 2006 between Claimant ... and First Respondent ... was novated, such that First Respondent was replaced by Second Respondent ... as Claimant's counterparty to the Contract;

(ii) That the Contract was lawfully terminated by Second Respondent by letter dated 17 January 2008 from [its counsel];

(iii) That, insofar as Claimant has acquired title to or in future acquires title to:

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

2. The equipment listed in Schedule 1 hereto; and

3. The manuals, drawings and certificates listed in Schedule 2 hereto;

such title is vested in, or immediately upon Claimant acquiring title will vest in, Second Respondent and Second Respondent is, or will become, the owner of such hull, equipment, manuals, drawings and certificates;

(iv) That Claimant must, and is hereby directed to, take all reasonable steps within its power and any steps reasonably requested of it by Second Respondent to enable Second Respondent to take possession of or otherwise assert its rights in respect of:

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

2. The equipment listed in Schedule 1; and

3. The manuals, drawings and certificates listed in Schedule 2;

(v) That Claimant do forthwith pay Second Respondent liquidated damages in the sum of ... (the "Liquidated Damages");

(vi) That Claimant do forthwith pay Second Respondent general damages in the sum of ... (the "General Damages");

(vii) That if and to the extent that the cost of completing the Vessel is reduced by recovery and use, or off-set by recovery and sale, of the equipment identified in Schedule 1, Second Respondent shall credit Claimant in an amount equal to:

1. the amount of any such reduction or sale price; less

2. the costs incurred by the Second Respondent in recovering, using or selling such equipment,

each such credit to operate as a partial discharge of the award in sub-paragraph (vi) above or, if that award has been paid in full by Claimant to Second Respondent, to be paid by Second Respondent to Claimant;

(viii) That Second Respondent is entitled to resume construction of the Vessel;

(ix)That Claimant do pay the Second Respondent compound interest on the Liquidated Damages at US$ 3-month LIBOR plus 1 per cent, to be compounded on a quarterly basis, commencing on 18 December 2007 and running (before and after the date this Award is notified to the Parties) until the date of payment.

(x) That Claimant do pay the Second Respondent compound interest on the General Damages at US$ 3-month LIBOR plus 1 per cent, to be compounded on a quarterly basis, commencing on the date this Award is notified to the Parties and running until the date of payment of the General Damages;

(xi) That Claimant:

1. shall bear and pay its own costs of this arbitration;

2. shall forthwith pay Respondents the sum of ... in respect of Respondents' legal costs and disbursements; and

3. shall forthwith reimburse First and/or Second Respondent [amount] in respect of Respondents' share of the advance on costs.

(xii) All other claims and counterclaims are dismissed.'

---