Mr. James W. Quinn (Co-arbitrator)
Dr. Tai-Heng Cheng (Co-arbitrator)
Mr. Klaus Reichert (President)
The Tribunal now sets out the factual context of this arbitration. What follows is not intended as a comprehensive account of, nor factual findings on, all the allegations as to what did or did not happen as between the Parties; rather, it serves the purpose of elucidating for a reader of this Final Award how, essentially, the Parties have come to be in dispute with one another. Those factual findings which might be strictly necessary to explain the Tribunal's reasoning are described later in this Final Award, as the context might require. By way of further introductory comment to this factual context, the Tribunal notes that the Parties' submissions in this arbitration are broadly in agreement with one another as to many of the background facts. On the other hand, the Tribunal notes that the Parties hotly dispute the consequences of such facts, even if they generally are in agreement as to most of what transpired as between each other. For completeness, it also is noted by the Tribunal that certain other matters of fact are disputed as between the Parties during the course of their submissions. Insofar as is strictly necessary later on in this Final Award, such disputed matters of fact may be discussed or resolved.
The Claimant was formerly called Nipro Diagnostics, Inc. and was an entity owned by the Respondent (as per p. 7 of the Terms of Reference). It is a developer, manufacturer and marketer of various products for people with diabetes, including a portfolio of blood glucose monitoring supplies and technologies. In 2016, the Respondent sold the Claimant to Shenzhen Xinnuo Health Industry Investment Company Limited ("Sinocare")(see the Preamble of the Agreement just below). As part of the sale, the Respondent entered into the Agreement (C-001) with the Claimant. The Tribunal will now record a number of clauses from the Agreement (other parts of the Agreement may be recorded later in this Final Award as the context might require).
I. Final Award
For the reasons stated, the unanimous final award of the Tribunal is as follows:
A. The Respondent breached the Agreement by failing to make the Annual Minimum Purchase for Contract Year Three thereby resulting in termination of the Agreement and the entitlement of the Claimant to damages (the latter being ordered at B just below).
B. The Respondent is ordered to pay the Claimant USD 17,477,511.00 by way of damages together with interest at the PRIME rate plus 2% per annum from March 8, 2019 to the date of this Final Award.
C. The Respondent is ordered to pay the Claimant USD 2,400,000.00 by way of legal costs and USD 50,000.00 by way of arbitration costs.
D. All other prayers for relief made by the Parties as against each other as recorded above are hereby denied.
OCR errors might be present