Summary

Source: icsid.worldbank.org

AWARD

Members of the Tribunal
Dr. Ucheora Onwuamaegbu, President of the Tribunal
Mr. Peter Rees KC, Arbitrator
Professor Hélène Ruiz Fabri, Arbitrator

TABLE OF CONTENTS

I. BACKGROUND TO THIS AWARD AND PROCEDURAL HISTORY
II. CALCULATION OF DAMAGES
A. Amount Due under the Facility Agreement
B. Interest
C. Costs
(1) The Claimant's Position
(2) The Respondents' Position
(3) The Tribunal's Decision on Costs
III. AWARD
APPENDIX 1
APPENDIX 2

I. BACKGROUND TO THIS AWARD AND PROCEDURAL HISTORY1

1. This Award is the final stage in the proceedings in the case of Qatar National Bank (Q.P.S.C.) v. Republic of South Sudan and Bank of South Sudan (ICSID Case No. ARB/20/40). It follows from the Tribunal's Decision on Jurisdiction and Liability dated 5 January 2024 ("Decision on Jurisdiction and Liability"), which is incorporated into this Award by reference, and attached as Appendix 1.

2. In the Decision on Jurisdiction and Liability, the Tribunal set out the procedural history and factual background to this case, as they stood at the time, as well as its decisions on jurisdiction and liability.

3. The Tribunal, in the Decision on Jurisdiction and Liability, also rejected the objections of the Respondents to the jurisdiction of the Centre and of the Tribunal over the claims filed.

The Tribunal also found that the Respondents had breached the Facility Agreement and are liable to the Claimant for damages, and that the compensation was to be calculated in accordance with the provisions of the Facility Agreement. The Dispositif of the Decision on Jurisdiction and Liability reads:

For the reasons set forth above, the Tribunal decides as follows:

(1) The Tribunal rejects the objections of the Respondents to the jurisdiction of the Centre and of this Tribunal.

(2) The Tribunal finds that the Respondents have breached the Facility Agreement and are liable to the Claimant for damages.

(3) The Tribunal finds that the Claimant has not waived its right to full and immediate repayment of the outstanding balance under the Facility Agreement.

(4) The Tribunal finds that the Claimant is entitled to compensation for the Respondents' breach to be calculated in accordance with the provisions of the Facility Agreement for:

a. the outstanding Loan amount;

b. interest on the Loan amount calculated in accordance with Clauses 8.1 and 8.3 of the Facility Agreement; and

c. the Management Fee.

(5) In order to facilitate the Tribunal's deliberations on the quantification of damages by the date of any Award that will follow this Decision, the Tribunal:

a. directs the Parties jointly to calculate the sums due under the Facility Agreement, as at two months from the date of this Decision, and monthly thereafter for six months. Such calculation should be submitted to the Tribunal within six weeks from the date of this Decision; and

b. in the event of disagreement between the Parties with regard to 5(a) above, the Tribunal directs the Parties jointly to submit, by the same six-week deadline, a document that sets out their respective calculations and briefly explains, in table format, the points and reasons for the differences. The Tribunal will thereafter determine if any additional submissions will be required.

(6) The Tribunal directs the Parties to submit their respective updated Statements of Costs within two weeks of the final submissions under the preceding paragraphs.(7) The Tribunal reserves its decision on Costs.2

4. Pursuant to paragraph 350(5)(a) of the Decision on Jurisdiction and Liability, the Parties' joint calculation of the sums due under the Facility Agreement was to be submitted to the Tribunal by 16 February 2024. On 16 February 2024, this deadline was at the request of the Parties extended to 19 February 2024.

5. By email of 19 February 2024, the Respondents advised the Tribunal that the Claimant would shortly forward the Tribunal the "joint position" of the Parties. This was followed by an email on the same day from the Claimant conveying the following documents on behalf of both sides, pursuant to paragraph 350(5)(a) of the Decision on Jurisdiction and Liability:

a. Agreed Calculations;

b. Updated LIBOR Data;

c. the account statement showing partial repayments between 12 February 2019 and 5 January 2023; and

d. the account statement showing no repayments have been made between 6 January 2023 and 17 January 2024.

6. By another email on 20 February 2024, the Respondents confirmed that the Claimant's email and attachments "[reflect] the Parties' agreement."

7. On 27 February 2024, the Tribunal, for its ease of reference, requested from the Parties a joint document of not more than two or three pages introducing the different documents submitted by the Parties on 19 February 2024, which documents should be annexed to the document.

8. In response the Claimant, on 11 March 2024, submitted the requested memorandum, attaching as annexes the same documents that had already been submitted on 19 February 2024.3

9. The Parties having been allowed additional time to do so, pursuant to paragraph 350(6) of the Decision on Jurisdiction and Liability, on 11 March 2024, the Claimant filed its updated Submission on Costs. The Respondents did not file an updated submission on costs.

10. The proceedings were closed on 29 March 2024.

II. CALCULATION OF DAMAGES

A. AMOUNT DUE UNDER THE FACILITY AGREEMENT

11. In its Decision on Jurisdiction and Liability, the Tribunal concluded: that the Respondents are, and continue to be, liable to the Claimant for any outstanding amounts owed under the Facility Agreement.

The Claimant, having properly invoked the Acceleration Clause, is entitled to immediate repayment in full of the outstanding sums under the Facility Agreement.4

12. The consequence, the Tribunal noted:

is that the Respondents are jointly and severally liable to compensate the Claimant for the damages due. Under English law, such damages shall be calculated such as to make the Claimant whole in accordance with the contract that has been breached. In this case, to make the Claimant whole, damages must be calculated in accordance with provisions of the Facility Agreement.5 (footnotes omitted)

13. The Parties each relied on calculations of amounts that were, according to their respective Experts, due under the Facility Agreement. The Tribunal, in its Decision on Jurisdiction and Liability, noted that the differences in the figures presented by the Parties arose from the different ways in which each side interpreted and applied the relevant provisions of the Facility Agreement. The Tribunal found, in particular, that the experts had adopted different approaches with regard to their treatment of: (i) default interest penalty; (ii) number of days of accrued interest; and (iii) treatment of partial repayments.

14. In the Decision on Jurisdiction and Liability, following its analysis of the respective positions of the Parties, the Tribunal:

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X. DECISION OF THE TRIBUNAL AND DIRECTIONS TO THE PARTIES

350. For the reasons set forth above, the Tribunal decides as follows:

(1) The Tribunal rejects the objections of the Respondents to the jurisdiction of the Centre and of this Tribunal.

(2) The Tribunal finds that the Respondents have breached the Facility Agreement and are liable to the Claimant for damages.

(3) The Tribunal finds that the Claimant has not waived its right to full and immediate repayment of the outstanding balance under the Facility Agreement.

(4) The Tribunal finds that the Claimant is entitled to compensation for the Respondents' breach to be calculated in accordance with the provisions of the Facility Agreement for:

a. the outstanding Loan amount;

b. interest on the Loan amount calculated in accordance with Clauses 8.1 and 8.3 of the Facility Agreement; and

c. the Management Fee.

(5) In order to facilitate the Tribunal's deliberations on the quantification of damages by the date of any Award that will follow this Decision, the Tribunal:

a. directs the Parties jointly to calculate the sums due under the Facility Agreement, as at two months from the date of this Decision, and monthly thereafter for six months. Such calculation should be submitted to the Tribunal within six weeks from the date of this Decision; and

b. in the event of disagreement between the Parties with regard to 5(a) above, the Tribunal directs the Parties jointly to submit, by the same six-week deadline, a document that sets out their respective calculations and briefly explains, in table format, the points and reasons for the differences. The Tribunal will thereafter determine if any additional submissions will be required.

(6) The Tribunal directs the Parties to submit their respective updated Statements of Costs within two weeks of the final submissions under the preceding paragraphs.

(7) The Tribunal reserves its decision on Costs.

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