Arbitrage. Vordering tot vernietiging arbitraal vonnis op grond van art. 1065 lid 1, onder c en e, Rv (oud) wegens schending van de in het toepasselijke reglement neergelegde procedureregels en het beginsel van hoor en wederhoor door toekenning van een hoger rentepercentage (10,5%) over de hoofdsom bij arbitraal herstelvonnis op de voet van art. 1060 Rv (oud), dan in het oorspronkelijk arbitrale vonnis was toegewezen (5%). Gedeeltelijke vernietiging ingevolge art. 1065 lid 5 Rv (oud) mogelijk, in die zin dat het (gewijzigde) arbitrale vonnis wordt vernietigd voor zover het scheidsgerecht daarin het oorspronkelijke vonnis ten onrechte heeft verbeterd en een rentevoet hoger dan 5% heeft toegewezen? Heeft het hof de bij de beoordeling van een vernietigingsvordering te betrachten terughoudendheid in acht genomen? Schending van hoor en wederhoor? Rechtsverwerking op grond van art. 1065 lid 4 Rv (oud)?
"The Parties have conferred and resolved that they will agree to the deadline for the parties' closing submissions being extended to Friday 21 April 2017 on the basis that on this date the Parties' will provide their final submissions in these arbitral proceedings. In other words, the parties have agreed to waive their respective rights to file rebuttal submissions and will therefore proceed on the basis that there will be only one round of closing submissions, based on the common understanding that post-hearing briefs serve the purpose of commenting on the outcome of the evidentiary hearing(s) and the evidence which is on the record, but may not introduce new facts."
"The parties' extension request (to file final closing submissions by 21 April 2017) is granted."
504. The governing law of the SPA (the Law of Kazakhstan) applies to the Claimant's right to seek interest in relation to late payment. No particular rate of interest is specified by the SPA.
505. Article 353 of the Civil Code of the Republic of Kazakhstan sets forth that a forfeit shall be payable for illegal use of another person's money resulting from failure to discharge a monetary obligation or late discharge there of or from illegal receipt or saving at another person's expense. Where no contractual rate is set, the forfeit is calculated based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day when the monetary obligation or part thereof is discharged. A court may make this award based on the official refinancing rate of the National Bank of the Republic of Kazakhstan: (i) on the day the claim was filed; (ii) on the day the judgment was issued: or (iii) on the day of actual payment (at the creditor's option).
506. The Claimant elects for the interest rate to be that applicable as at the date of judgment. As of 1 April 2017, the official refinancing rate of the National Bank of the Republic of Kazakhstan is 11% per annum. (..) The Claimant therefore claims interest on each Milestone at the rate of 11% (or such other rate as may then be applicable) from the date the Tribunal finds the Milestone became due until the date of payment by the Respondent."
"V. TRIBUNAL'S DECISION AND REASONING
(..) E. Interest
1001. The Claimant submitted that a 5% per annum interest rate is applicable to payments under the SPA (...). The Respondent has not made any contrary submissions. The Tribunal accepts that a 5% per annum interest rate is the applicable rate to outstanding payments due under the SPA. (..)"
"11. The 5% interest rate specified in the Statement of Claim was the official refinancing rate of the National Bank of the Republic of Kazakhstan at the date of the Statement of Claim. However, in paragraph 506(1) of the Claimant's Closing Submissions, the Claimant elected for the interest rate to be that applicable as at the date of judgment (rather than the date of the claim). On the date of the Award, the official refinancing rate of the National Bank of the Republic of Kazakhstan was 10,5% per annum (http://www.nationalbank.kz/?docid=951&switch=english).
Paragraphs 1001 and 1026(f) of the Award should therefore be amended to reflect this interest rate."
"33. Qualifying Claimant's desire for a better interest rate as computational or clerical error in the meaning of Article 52(1) of the NAI Rules speaks for itself and highlights Claimant's - or its counsel's - general approach in this matter.
"33. Claimant 's request that the interest rate of 5% payable under the Award (para. 1026(j) of the Award) should be amended to 10,5% as "computational or clerical error" in the meaning of Article 52(1) of the NAI Rules is evidently unfounded.
34. Claimant's argument that it would be entitled to be compensated for its damage (..), and that a claim for an interest rate of 10,5% could be based on Kazakh law (..) relates to the substance of the matter and is therefore entirely misplaced in a Request for Corrections. Claimant would need to show that there is a "computational or clerical error", which is obviously not the case.
35. There is no legal basis whatsoever for Claimant's request for correction, and it must therefore be rejected."
"52. With respect to the "other evident errors," the Claimant applies for a correction to refer to the correct rate of interest claimed (..). The Tribunal notes two issues at the outset: (1) the Respondent has not made any contrary submissions as to the applicable rate of interest or the award of interest in general during the arbitration, (..) (2) the basis for the Tribunal's award is the Claimant's submission that it is entitled to interest. (..)
53. The Claimant's requested correction concerns the reference to the correct applicable interest on which the Claimant's position is based. A clerical error is an error resulting from a minor mistake or inadvertence and not from judicial reasoning or determination. The error in question is the reference to the incorrect submission. There is no judicial reasoning or determination involved in the Tribunal's award of interest. It was simply for a claim that was not answered, and thus admitted. The Claimant's position is that it is entitled to the "interest rate to be that applicable as at the date of judgment." (..)
54. Contrary to the Respondent's submission, it is not "evidently unfounded" (..) nor does it "speak for itself" (...) as to why the error is not clerical. The fact that the error "relates to the substance of the matter" does not mean it is not a clerical error. (..)
55. The Respondent's submission that the requested correction "do[es] not provide a legal basis for Claimant's requested retroactive amendment of para. 1026(j) of the Award to the detriment of Respondent" is equally rejected. (..) Taking the Respondent's submission to its logical conclusion, no tribunal has any authority to correct any computational or clerical error for quantum of damages. Computational error inherently concerns the calculation of damages, the correction of which will necessarily be beneficial or detrimental to one party or the other. The fact that a correction is detrimental to one party is not a ground to reject the correction requested. The same must hold true for clerical errors.
56. Granting the Claimant's requested corrections at paragraphs 9-11 of the Claimant's Request for Corrections, and in exercise of the Tribunal's discretion under NAI Rules Articles 23(5) and 52(4), the Tribunal therefore corrects the Award as follows:
52. a. Amend paragraph 1001 to "The Claimant submitted that a 10.5% per annum interest rate is applicable to payments under the SPA, as the applicable interest rate at the date of judgment. The Respondent has not made any contrary submissions. The Tribunal accepts that a 10.5% per annum interest rate is the applicable rate to outstanding payments due under the SPA." (...)."