2. Summary of Respondent's Position

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a) Interpretation of the [Agreement]/Force Majeure Clause

64. The issue that the Sole Arbitrator has to judge is, what are the consequences of the fact that the construction of [the plant] is not (yet) possible due to the lack of a formal position of the Management Boards of the Port [in Respondent’s country], the fact that the cooperation agreement with the Port [in Respondent’s country] was not signed and the fact that the agreement Respondent intended to conclude with an investor for financing the project was missing. In the view of the Sole Arbitrator, these circumstances have no influence on the obligation to render payment of the asserted claim for 5 per cent, for the following reasons:

65. Respondent entered into an obligation with Claimant to pay 5 per cent of the total price ''for already fulfilled engineering". This amount was thus payable in principle, irrespective of the realisation of the rest of the project.

66. The circumstances pointed out by Respondent, namely the lack of cooperation of the Port [in Respondent’s country] and the failure to conclude a financing agreement with the investor, do not lie within Claimant's sphere of responsibility. Pursuant to the [Agreement], Respondent was obliged to provide the real property for the construction of the factory. On page 13 of the [Agreement], it was laid down that Respondent "must provide a safe, clean and free from any obstacles working site". It is thus also up to Respondent to ensure provision of possible permits to use a particular construction site. This is also made clear on page 17 of the [Agreement] ("… terrain rent, levied by client … is excluded from the contractors’ scope of work"). Nor does conclusion of a cooperation agreement between Respondent and an investor come under Claimant's sphere of responsibility. It is up to Respondent to finance the purchase price. In the [Agreement], it entered into the obligation to pay the purchase price without any reservations of any kind being made concerning funding.

67. Respondent cannot invoke No. 39 ORGALIME S 2000 (force majeure) either. Under this provision, certain circumstances such as "industrial disputes and any other circumstance beyond the control of the parties such as fire, war ..." can have an influence on the obligations of the contracting parties. Pursuant to the [Agreement], the responsibility for the provision of the real property and the purchase price is assigned to Respondent. For this reason, the Sole Arbitrator is already doubtful about whether the circumstances pleaded by Respondent are such circumstances "beyond the control of the parties". In any event, however, in this specific Case, the application of No. 39 ORGALIME S 2000 is excluded by its sentence 2. According to this provision, a contracting party may only invoke circumstances beyond the control of the parties "if its effect on the performance of the contract could not be foreseen at the time of the formation of the contract". The circumstances pleaded by Respondent are circumstances that were known already prior to conclusion of both the [Agreements]. This can be seen in particular in Respondent's letter … quite apart from the fact that one cannot rely on the cooperation of a third party as long as such a cooperation is not yet certain.