The Republic of Iraq v The Republic of Turkey - ICC International Court of Arbitration Case No 20273/AGF/ZF/AYZ/ELU - Final Award - 13 February 2023
Country
Year
2023
Summary
The Tribunal:
Sir David A R Williams KNZM KC (President)
Sir Christopher Greenwood GBE CMG KC
H.E. Judge Peter Tomka
TABLE OF ABBREVIATIONS
I. INTRODUCTION
A. Summary of Claims
B. Summary of Counterclaims
II. THE PARTIES
A. Claimant: The Republic of Iraq
B. Respondent: The Republic of Turkey
C. The Arbitral Tribunal
D. Other Entities Relevant to the Dispute
1. BOTA
2. State Oil Marketing Company
3. North Oil Company
4. Kurdistan Regional Government of Iraq
III. ARBITRATION AGREEMENT AND GOVERNING LAW
IV. PROCEDURAL HISTORY
A. Jurisdiction Award
B. Procedural Order No 3
C. Appointment of New Secretary to the Tribunal
D. Memorials
5. Claimant's Memorial on the Merits
6. Respondent's Counter-Memorial on the Merits
E. Document Production Order
F. Procedural Order No 4
G. Reply Memorials
H. Hearing Documents
I. Procedural Order No 5
J. Skeleton Submissions and Postponement of the Hearing
K. Replacement of Professor David Caron
L. Re-scheduling the Merits Hearing
M. Preparation for the Hearing
N. Merits Hearing
O. Procedural Order No 6
P. Post-Hearing Submissions
Q. Closing Hearing
R. Further Submissions on Arbitration commenced by the Respondent
S. Confidentiality
T. Replacement of Professor Gaillard
U. Applications for Admission of New Evidence
V. Hearing on the New Evidence
W. Costs Submissions
X. Challenge Procedure
Y. Extensions of time for rendering Final Award
Z. Closure of proceedings
V. SUMMARY OF MATERIAL FACTS
A. The Relevant Agreements
1. 1973 Agreement
2. 1976 Protocol
3. 1985 Addendum
4. 2010 Amendment
B. The Dispute
C. Factual Background
1. The Relationship between the FGI and the KRG
2. The Dispute between Iraq and Turkey
VI. SUMMARY OF THE PARTIES' POSITIONS
A. Claimant's Position
1. The Claimant's Claims
2. The Claimant's Request for Relief
3. Claimant's Reply to Respondent's Defences and Counterclaims
4. Adverse Inferences
B. Respondent's Position
1. Respondent's Response to the Claimant's Claims
2. Respondent's Response to Claimant's Request for Relief
3. Respondent's Counterclaims
4. Adverse Inferences
VII. PARTIES' REQUESTS FOR RELIEF
A. Claimant's relief
B. Respondent's relief
VIII. Issues to be addressed
IX. APPLICABLE LAW: FRENCH LAW, INTERNATIONAL LAW OR BOTH?
A. Claimant's Position on Applicable Law
B. Respondent's Position on Applicable Law
C. Tribunal's Analysis of Applicable Law
X. ADMISSIBILITY OF CLAIMS
A. Parties' submissions on admissibility of claims
B. Tribunal's analysis of admissibility of claims
XI. IRAQ'S CLAIMS FOR BREACH OF THE ITP AGREEMENTS
A. Relevant Provisions of the ITP Agreements
B. Transportation, Storage and Loading Claims
1. Claimant's submissions on Transportation, Storage and Loading Claims
2. Respondent's Submissions on Transportation, Storage and Loading Claims
3. Tribunal's analysis of Transportation, Storage and Loading Claims
4. Findings of the Tribunal - Turkey in breach of ITP Agreements
C. Exclusive Use Claim
1. Claimant's submissions on Exclusive Use Claim
2. Respondent's submissions on Exclusive Use Claim
3. Tribunal's analysis of Exclusive Use Claim
D. Access Claim
1. Claimant's submissions on Access Claim
4. Respondent's submissions on Access Claim
5. Tribunal's analysis of Access Claim
XII. ANALYSIS OF TURKEY'S AFFIRMATIVE DEFENCES
A. Was the Respondent entitled to suspend its performance of the ITP Agreements?
1. Respondent's submissions
2. Claimant's submissions
3. Tribunal's analysis
B. Was the Claimant responsible for controlling access to the Iraqi section of the Pipelines?
1. Respondent's submissions
2. Claimant's submissions
3. Tribunal's analysis
C. Did the Claimant have a legitimate claim to the crude oil entering the Pipeline?
1. Respondent's submissions
2. Claimant's submissions
3. Tribunal's analysis
D. Would the Parties have breached their Jus Cogens obligations if the Respondent had followed the FGI's instruction to close the Pipelines?
1. Respondent's submissions
2. Claimant's submissions
3. Tribunal's Analysis
XIII. REMEDIES
A. Relief Requested by the Claimant
B. Remedies Principles to be applied to Damages
C. Declaratory relief, restitution and orders regarding future conduct
D. Full Accounting
E. Damages
1. Unjust enrichment or double recovery
2. Losses claimed by the Claimant
3. Discounted sales price
4. Transportation Fees
5. Other overpayments
6. Calculation of loss - Counterfactual
7. Causation and contributory fault
8. Conclusion on Quantum for the Claimant's claims
XIV. ANALYSIS OF TURKEY'S COUNTERCLAIMS
A. Minimum Guaranteed Throughput Fees
1. Respondent's submissions
2. Claimant's submissions
3. Tribunal's Analysis
B. Failure to pay transportation charges
1. Respondent's submissions
2. Claimant's submissions
3. Tribunal's Analysis
C. Failure to reimburse for equipment and personnel
1. Respondent's submissions
2. Claimant's Submissions
3. Tribunal's Analysis
XV. CONCLUSION ON QUANTUM
XVI. INTEREST
A. Parties' Submissions
B. Tribunal's Analysis
XVII. COSTS
A. Claimant's Submissions
B. Respondent's Submissions
C. Costs fixed by the ICC Court
D. Tribunal's Analysis
XVIII. FINAL AWARD
...
I. INTRODUCTION
In 1973, the Claimant, the Republic of Iraq (Iraq or Claimant), and the Respondent, the Republic of Turkey (Turkey or Respondent) entered into a Crude Oil Pipeline Agreement for the supply and purchase of crude oil (1973 Agreement). The 1973 Agreement and its various subsequent amendments, addendums and protocols (which are described in more detail at paragraphs 145 to 169 below) are now known collectively as the Iraq-Turkey Pipeline Agreements (ITP Agreements).
Pursuant to the ITP Agreements, the Parties agreed to construct two oil pipelines running from the Kirkuk oil fields in Northern Iraq to Ceyhan, a port city in Southern Turkey (the Pipelines).
Ceyhan has been a transportation hub for oil and natural gas from the Middle East, Central Asia and Russia for many years.1
The ITP Agreements govern the construction, maintenance, operation and use of the Pipelines and the use of related facilities at Ceyhan for the storage and loading of crude oil transported through the Pipelines. The first pipeline was constructed under the 1973 Agreement (40-inch Pipeline) and the second (bigger) pipeline was constructed under the 1985 Addendum (46-inch Pipeline). Under the ITP Agreements, each side would construct, operate and maintain the two Pipelines within their respective territories. The Claimant would benefit from a new export channel for its oil and the Respondent would develop Ceyhan further as an energy transportation hub. In exchange for the transportation, storage and loading of its oil, the Claimant would pay the Respondent a transportation fee. Until 2010, a certain portion of the oil was also reserved for purchase by the Respondent.
The Claimant has alleged that the Respondent is in breach of the ITP Agreements as it has allowed crude oil from the Kurdistan Region of Iraq (KRI) to flow through the Pipelines without the consent of Iraq's Ministry of Oil. The Claimant alleges further that the KRI's oil has then been stored and loaded at Ceyhan using the ITP facilities without its consent.2
The Claimant commenced this arbitration on 23 May 2014 against (i) the Respondent and (ii) BOTA Petroleum Pipeline Corporation (BOTA), pursuant to Article 10 of the 2010 Amendment to the Crude Oil Pipeline Agreement of 1973 (2010 Amendment) and the Treaty of Friendship and Neighbourly Relations between Iraq and Turkey of March 29, 1946 (1946 Treaty).3 The arbitration is governed by the 2012 version of the ICC Rules of Arbitration (ICC Rules).
BOTA was originally the second respondent in this arbitration. It is a State-owned enterprise and is the Respondent's appointed "Nominee" under Article 2 of the 1973 Agreement. Its original purpose was to perform the Respondent's obligations under the 1973 Agreement.
Following a jurisdictional objection by the Respondent and BOTA, the arbitration proceedings were bifurcated, with a hearing on jurisdiction taking place in Paris, France on 12 and 13 October 2015.
The Partial Final Award on Jurisdiction dated 16 June 2016 (Jurisdiction Award) was notified to the Parties on 22 June 2016. A summary of its findings is set out below:4
the Claimant's claims under the ITP Agreements are arbitrable;
the Claimant's claims under the ITP Agreements fall within the scope of the arbitration agreement;
the Tribunal does not have jurisdiction ratione materiae over the Claimant's claims under the 1946 Treaty; and
the Tribunal does not have jurisdiction ratione personae over the second respondent, BOTA.
The Tribunal found that BOTA was not a party to the arbitration agreement as it did not act independently or for its own benefit.5 Its participation in the ITP Agreements did not extend beyond acting as Turkey's agent. Therefore, the Tribunal concluded it did not have jurisdiction over BOTA in the present arbitration.
...
VIII. PARTIAL FINAL AWARD ON JURISDICTION
303. For all of the foregoing reasons, and rejecting all submission to the contrary, the Tribunal HEREBY FINDS, DECLARES AND AWARDS as follows in relation to this jurisdictional phase of proceedings:
a. The Claimant's claims under the ITP Agreements are arbitrable.
b. The Claimant's claims under the ITP Agreements fall within the scope of the arbitration agreement.
c. The Tribunal does not have jurisdiction ratione materiae over the Claimant's claims under the 1946 Treaty.
d. The Tribunal does not have jurisdiction ratione personae over BOTA.
e. All other requests and claims, including claims for costs, are reserved for a further award.
...
Appendix 2: Lists of Issues
Claimant's List of Issues
General Issue 1: Alleged Breaches of the ITP Agreements by Respondent
1. "Transportation" Claim
A. Has Respondent breached the ITP Agreements, in particular Articles 3 and 7 of the 1976 Protocol, by transporting crude oil through the ITP pipeline upon the instructions of the KRG, and contrary to the instructions of Claimant's Ministry of Oil?
i. Do the ITP Agreements, in particular Articles 3 and 7 of the 1976 Protocol, require Respondent to follow the instructions of Claimant's Ministry of Oil in respect of transport of crude oil coming from Iraq?
ii. Did the Ministry of Oil's instructions relating to transportation amount to an instruction to close the ITP system, and if so did ITP Agreements require Respondent to give effect to such an instruction?
iii. Was Respondent entitled not to give effect to the instructions of Claimant's Ministry of Oil on the ground that Claimant had an obligation to control access to the ITP facilities in Iraq and failed to control such access, or that any failure to control access constitutes consent to the transportation of crude oil upon the instructions of the KRG?
iv. Was Respondent entitled not to give effect to the instructions of Claimant's Ministry of Oil on the ground that they were abusive or given in bad faith?
2. "Storage" Claim
A. Has Respondent breached the ITP Agreements, in particular Article 7 of the 1976 Protocol, by storing crude oil upon the instructions of the KRG and allocating storage tanks for the KRG, contrary to the instructions of Claimant's Ministry of Oil?
i. Do the ITP Agreements, in particular Article 7 of the 1976 Protocol, require Respondent to store the oil at issue solely in accordance with the instructions of Claimant's Ministry of Oil?
ii. Does the Ministry of Oil's instruction right relating to storage of crude oil depend on whether the Iraqi Federal Government has export and/or ownership rights over that crude oil under Iraqi law?
3. "Loading" Claim
A. Has Respondent breached the ITP Agreements, in particular Articles 3, 7 and 9 of the 1976 Protocol and Article 2.3 of the 2010 Amendment, by loading crude oil on tankers in accordance with the instructions of the KRG, and contrary to the instructions of Claimant's Ministry of Oil?
i. Do the ITP Agreements, in particular, Articles 3, 7 and 9 of the 1976 Protocol and Article 2.3 of the 2010 Amendment, require Respondent to load the oil at issue solely upon the instructions of Claimant's Ministry of Oil?
ii. Does the Ministry of Oil's instruction right relating to loading of crude oil depend on whether the Iraqi Federal Government has export and/or ownership rights over that crude oil under Iraqi law?
4. "Exclusive" Use Claim
A. Has Respondent breached the ITP Agreements, in particular Article 2.4 of the 2010 Amendment, by allowing the KRG to use the ITP facilities without the consent of Claimant's Ministry of Oil?
i. Do the ITP Agreements, in particular Article 2.4 of the 2010 Amendment, require Respondent to use the ITP facilities exclusively with the consent of the Claimant's Ministry of Oil, to the exclusion of use by the KRG without the consent of Claimant's Ministry of Oil?
5. "Access" Claim
A. Has Respondent breached the ITP Agreements, in particular Articles 4 and 5 of the 1976 Protocol and Articles 4.4 of the 2010 Amendment, by preventing representatives of the Iraqi Side from accessing certain ITP facilities in Ceyhan, Turkey?
i. Do the ITP Agreements, in particular Articles 4 and 5 of the 1976 Protocol and Article 4.4 of the 2010 Amendment, require Respondent to allow representatives of the Iraqi Side to access certain ITP facilities in Ceyhan?
ii. Did Respondent in fact prevent representatives of the Iraqi Side from accessing certain ITP facilities in Ceyhan?
General Issue 2: Suspension of the ITP Agreements
1. Would suspension of the operation of the ITP Agreements create a right for Respondent to transport, store, and load Iraqi crude oil pursuant to the instructions of the KRG?
2. Has Respondent lost any right to invoke the suspension of the operation of the ITP Agreements by express agreement that the ITP Agreements continue in operation and/or by having acquiesced in their continued operation?
3. Has Respondent validly invoked any right to suspend the operation of the ITP Agreements?
4. Has Respondent established a right to suspend its obligations under the ITP agreements pursuant to the principle exceptio non adimpleti contractus?
A. Has Respondent established that the exceptio non adimpleti contractus is an independent principle of international law that coexists with Article 60 VCLT?
B. If so, has Respondent established that the conditions for the exceptio non adimpleti contractus have been met, including that Respondent's obligation to transport, store, and load Iraq crude oil exclusively under Claimant's instruction was synallagmatically linked to Claimant's throughput, payment, operation, and maintenance obligations under the ITP Agreements?
5. Has Respondent established a right to suspend the operation of the ITP Agreements in response to alleged violations of the ITP Agreements by Claimant, pursuant to the customary international law rule reflected in Article 60 VCLT?
6. Has Respondent established a right to suspend the operation of the ITP Agreements as a result of a fundamental change of circumstances, pursuant to the customary international law rule reflected in Article 62 VCLT?
A. Has Respondent established that there was a supervening, fundamental change of circumstances?
B. Has Respondent established that the change in circumstances it invokes was not foreseen by the Parties?
C. Has Respondent established that the circumstances it invokes constituted an essential basis of the Parties' consent to be bound by the ITP Agreements?
D. Has Respondent established that the change in circumstances it invokes radically transformed the extent of the obligations still to be performed under the ITP Agreements?
E. Is Respondent precluded from invoking a fundamental change of circumstances as a result of its own breaches of the ITP Agreements and/or the obligation of non- intervention under customary international law and the 1946 Treaty on Friendship and Neighbourly Relations?
7. Did Claimant's invocation of force majeure pursuant to Article 19 of the ITP Agreements following the bombing of the ITP facilities in 2014 suspend Respondent's obligation to follow the instructions of the Iraqi Side in transporting, storing and loading crude oil under the ITP Agreements?
8. Does French law govern the suspension of the ITP Agreements?
9. If so, has Respondent established a right to suspend the operation of the ITP Agreements pursuant to French law?
A. Has Respondent validly invoked the exception d'inexécution?
B. If so, has Respondent established that the conditions for the exception d'inexécution are met, including that Respondent's obligation to transport, store, and load Iraq crude oil exclusively under Claimant's instruction was reciprocal to Claimant's throughput, payment, operation, and maintenance obligations under the ITP Agreements?
General Issue 3: Jus Cogens Obligations
1. Is the obligation to prevent genocide, including by assisting third parties in the prevention of genocide, a jus cogens norm, distinct from the jus cogens obligation not to commit acts of genocide?
2. Has Respondent established that it would have violated a jus cogens obligation if it had followed the instructions of Claimant's Ministry of Oil relating to the transportation, storage and loading of crude oil under the ITP Agreements?
General Issue 4: Remedies
1. Is Claimant entitled to a declaration that Respondent is in breach of the ITP Agreements?
2. Is Claimant entitled to an order requiring Respondent to comply with its obligations under the ITP Agreements?
3. Is Claimant entitled to an order requiring Respondent to make appropriate assurances and guarantees of non-repetition?
4. Is Claimant entitled to an order requiring Respondent to provide a full accounting of the proceeds and related payments from the oil transported, stored and loaded through the ITP facilities, including the amounts received by Respondent or its State-owned companies as commissions, transport or other fees, financing payments or other non-financial benefits?
5. Is Claimant entitled to full reparation?
A. Has Claimant suffered injury?
B. Did Respondent cause Claimant's injury?
C. If so, is Claimant entitled to restitution of any crude oil in the Ceyhan storage tanks as of the date of the award?
D. Is Claimant entitled to any compensation?
E. If so, is Claimant entitled to the fair market value of the oil transported, stored and loaded through the ITP facilities?
F. If not, is Claimant entitled to the difference between the proceeds that the KRG actually received from the oil transported, stored and loaded through the ITP facilities, and the fair market value of such crude oil?
G. What is the appropriate method to calculate the fair market value of the oil transported, stored and loaded through the ITP facilities?
H. In eventu, is Respondent obliged to deposit into the OPRA/DFI account an amount corresponding to the proceeds from the oil transported, stored and loaded through the ITP facilities, plus any discount against fair market value?
I. Is Claimant entitled to interest on any sums awarded? If so, what is the applicable interest rate?
General Issue 5: Respondent's Counterclaims
1. Was Claimant exempted from its obligation to pay MGT fees from 2003 to July 27, 2011 pursuant to Article 2.7 of the 1985 Addendum and Article 19 of the 1973 Agreement?
2. What is the amount, if any, of unpaid actual transportation fees and unpaid MGT fees owed by Claimant for the period from 2003 until July 27, 2011?
3. What is the amount of any unpaid actual transportation fees and unpaid MGT fees owed by Claimant, but not yet due, for the period July 27, 2011, the date of the entry into force of the 2010 Amendment, through 2013?
4. What is the amount, if any, of actual transportation fees owed by Claimant for crude oil transported through the ITP facilities in 1990?
5. What is the amount, if any, of reimbursement owed by Claimant for the costs of equipment allegedly purchased by BOTA between 1997 and 2001?
6. What is the amount, if any, of reimbursement owed by Claimant for staff expenses for Iraqi personnel and offices at the Ceyhan ITP terminal allegedly incurred by Respondent?
7. Are any of Respondent's counterclaims time-barred?
8. Is Respondent entitled to interest on any sums awarded on its counterclaims? If so, what is the applicable interest rate and from which date does it apply?
Respondent's List of Issues
General Issue 1: Alleged Breaches of the ITP Agreements by Respondent
1. "Transportation" Claim
A. Prior to November 2014, did Respondent breach the ITP Agreements, in particular Articles 3 and 7 of the 1976 Protocol, by failing to give effect to any instructions of Claimant's Ministry of Oil or its representatives contained in their letters of 5,6 and 9 January 2014, 18, 20 and 25 February 2014, 7 April 2014, and 21 May 2014 ?
i. Do the ITP Agreements, in particular Articles 3 and 7 of the 1976 Protocol, require Respondent to follow the instructions of Claimant's Ministry of Oil in respect of transport of crude oil coming from Iraq?
ii. Do the ITP Agreements, in particular Articles 3 and 7 of the 1976 Protocol, entitle the Claimant's Ministry of Oil or its representatives to instruct Turkey to "close the 40-inch pipeline that lies in the territory of Republic of Turkey"
(SOMO letter, dated 18 February 2014)?
iii. If not, would it have been physically possible for Respondent to give effect to any of the instructions of Claimant's Ministry of Oil or its representatives without closing the 40-inch pipeline inside Turkey?
iv. Did the Claimant's Ministry of Oil impliedly consent to the transport of crude oil coming from the KRI by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
v. If not, could the Claimant's Ministry of Oil in good faith refuse to consent to the transport of crude oil coming from the KRG and/or did any of the Ministry's instructions constitute an abuse of right?
B. As from November 2014, when the FGI and the KRG agreed on the allocation of oil transported through the ITP pipelines to Ceyhan, has Respondent committed any breach of the ITP Agreements by failing to give effect to any instruction of the Claimant's Ministry of Oil or its representatives?
i. If so, which specific instructions of the Ministry from November 2014 onwards did Respondent violate?
ii. Did the Claimant's Ministry of Oil impliedly consent to the transport of crude oil coming from the KRI by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
iii. If not, could the Claimant's Ministry of Oil in good faith refuse to consent to the transport of crude oil coming from the KRG and/or did any of the Ministry's instructions constitute an abuse of right?
C. Was Respondent entitled to suspend its performance of the ITP Agreements, and accordingly, not give effect to the instructions of the Claimant's Ministry of Oil due to
(i) Claimant's alleged breaches of those agreements, (ii) a fundamental change in circumstances and/or (iii) Claimant's invocation of force majeure? If so, as from what date? With respect to (iii):
i. Is Claimant's instruction right reciprocal to or linked with its throughput, payment, operation, and maintenance obligations under the ITP Agreements? If so, does French and international law permit the suspension of performance of reciprocal obligations by the counterparty, or is the counterparty required to continue to perform its obligations?
ii. Did Respondents obstruct the ability of Claimant to resume operation of the ITP Agreements should it have been able to pump oil into the ITP system?
iii. Would suspension of the operation of the ITP Agreements create a right for Respondent to transport, store, and load Iraqi crude oil pursuant to the instructions of the KRG?
iv. Has Respondent lost any right to invoke the suspension of the operation of the ITP Agreements by express agreement that the ITP Agreements continue in operation and/or by having acquiesced in their continued operation?
D. If Respondent would have shut down the pipeline by following the instructions of Claimant's Ministry of Oil relating to the transportation, storage and loading of crude oil under the ITP Agreements, would it have violated a jus cogens or customary international law obligation?
i. Is the obligation to prevent genocide, including by assisting third parties in the prevention of genocide, a jus cogens norm or a principle of customary international law, distinct from the jus cogens obligation not to commit acts of genocide?
2. "Storage" Claim
A. Prior to November 2014, did Respondent breach the ITP Agreements, in particular Article 7 of the 1976 Protocol, by allowing storage tanks to be used by the KRG, contrary to the instructions of Claimant's Ministry of Oil or its representatives contained in their letters of 5,6, 9 and 15 January 2014, and 20 and 25 February 2014? i. Do the ITP Agreements, in particular Article 7 of the 1976 Protocol, require Respondent to store the oil at issue solely in accordance with the instructions of Claimant's Ministry of Oil?
ii. Did the Claimant's Ministry of Oil impliedly consent to the storage of crude oil by the KRG by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
iii. Does Article 7 entitle the Claimant's Ministry of Oil or its representatives to instruct Respondent to store KRG oil to the order of the FGI (letter dated 18 February 2014) in respect of which the FGI has no rights of control under Iraqi law?
B. As from November 2014, when the FGI and the KRG agreed on the allocation of oil transported through the ITP pipelines to Ceyhan, has Respondent committed any breach of the ITP Agreements by failing to give effect to any instruction of the Claimant's Ministry of Oil or its representatives? i. If so, which specific instructions of the Ministry from November 2014 onwards did Respondent violate?
ii. Did the Claimant's Ministry of Oil impliedly consent to the storage of crude oil by the KRG by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
C. Was Respondent entitled to suspend its performance of the ITP Agreements for the reasons provided in General Issue (1)(C) and (D) above?
3. "Loading" Claim
A. Prior to November 2014, did Respondent breach the ITP Agreements, in particular Articles 3, 7 and 9 of the 1976 Protocol and Article 2.3 of the 2010 Amendment, by loading crude oil on tankers in accordance with the instructions of the KRG, and contrary to the instructions of Claimant's Ministry of Oil or its representatives contained in their letter of 18 February 2014?
i. Do the ITP Agreements, in particular, Articles 3, 7 and 9 of the 1976 Protocol and Article 2.3 of the 2010 Amendment, require Respondent to load the oil at issue solely upon the instructions of Claimant's Ministry of Oil?
ii. Did the Claimant's Ministry of Oil impliedly consent to the loading of crude oil coming from the KRG by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
iii. Do the provisions upon which Claimant relies entitle the Claimant's Ministry of Oil or its representatives to instruct Respondent to load and/or refuse to load KRG oil in respect of which the FGI has no rights of control under Iraqi law?
B. As from November 2014, when the FGI and the KRG, agreed on the allocation of oil transported through the ITP pipelines, to Ceyhan, has Respondent committed any breach of the ITP Agreements by failing to give effect to any instruction of the Claimant's Ministry of Oil or its representatives?
i. If so, which specific instructions of the Ministry from November 2014 onwards did Respondent violate?
ii. Did the Claimant's Ministry of Oil impliedly consent to the loading of crude oil by the KRG by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
C. Was Respondent entitled to suspend its performance of the ITP Agreements for the reasons provided in General Issue (1)(C) and (D) above?
4. "Exclusive" Use Claim
A. Prior to November 2014, did Respondent breach the ITP Agreements, in particular Article 2.4 of the 2010 Amendment, by allowing the KRG to use the ITP facilities?
i. Do the ITP Agreements, in particular Article 2.4 of the 2010 Amendment, require Respondent to allow the ITP facilities to be used exclusively with the consent of the Claimant's Ministry of Oil, to the exclusion of use by the KRG for "Crude Oil coming from Iraq", without the consent of Claimant's Ministry of Oil?
ii. If so, did the the Claimant's Ministry of Oil impliedly consent to the use of the ITP facilities by the KRG by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
B. As from November 2014, when the FGI and the KRG, agreed on the allocation of oil transported through the ITP pipelines, to Ceyhan, has Respondent committed any breach of the ITP Agreements by failing to give effect to any instruction of the Claimant's Ministry of Oil or its representatives?
i. If so, which specific instructions of the Ministry from November 2014 onwards did Respondent violate?
ii. Did the Claimant's Ministry of Oil impliedly consent to the use of the ITP facilities by the KRG by allowing it to be pumped into the 40-inch pipeline within the territory of Iraq?
C. Was Respondent entitled to suspend its performance of the ITP Agreements for the reasons provided in General Issue (1)(C) and (D) above?
5. "Access" Claim
A. Has Respondent breached the ITP Agreements, in particular Articles 4 and 5 of the 1976 Protocol and Articles 4.4 of the 2010 Amendment, by preventing representatives of the Iraqi Side from accessing certain ITP facilities in Ceyhan, Turkey?
i. Do the ITP Agreements, in particular Articles 4 and 5 of the 1976 Protocol and Article 4.4 of the 2010 Amendment, require Respondent to allow representatives of the Iraqi Side to access certain ITP facilities in Ceyhan?
ii. Did Respondent in fact prevent representatives of the Iraqi Side from accessing certain ITP facilities in Ceyhan?
General Issue 2: Claimant's Remedies
1. Declaratory and Injunctive Relief
A. Is Claimant entitled to a declaration that Respondent is in breach of the ITP Agreements?
B. Is Claimant entitled to an order requiring Respondent to comply with its obligations under the ITP Agreements?
C. Is Claimant entitled to an order requiring Respondent to make appropriate assurances and guarantees of non-repetition?
D. Is Claimant entitled to an order requiring Respondent to provide a full accounting of the proceeds and related payments from the oil transported, stored and loaded through the ITP facilities, including the amounts received by Respondent or its State- owned companies as commissions, transport or other fees, financing payments or other non-financial benefits?
2. Monetary Relief
A. Has Claimant suffered injury?
i. Can Claimant claim injury entitling it to monetary damages without the FGI establishing that it, and not the KRG, has the right of control and export of crude oil from the KRI?
B. Did Respondent cause Claimant's injury?
C. If so, was Claimant in a position to prevent or mitigate any such injury and has it done so?
D. Is any of Claimant's injury compensable under international law?
E. If so, is Claimant entitled to damages and, if so, how much?
F. Is Claimant entitled to restitution of any crude oil in the Ceyhan storage tanks as of the date of the award?
G. In eventu, is Respondent obliged to deposit into the OPRA/DFI account an amount corresponding to the proceeds from the oil transported, stored and loaded through the ITP facilities, plus any discount against fair market value?
H. Is Claimant entitled to interest on any sums awarded? If so, what is the applicable interest rate?
General Issue 3: Respondent's Counterclaims
1. Was Claimant exempted from its obligation to pay MGT fees from 2003 to July 27, 2011 pursuant to Article 2.7 of the 1985 Addendum and Article 19 of the 1973 Agreement?
2. What is the amount, if any, of unpaid actual transportation fees and unpaid MGT fees owed by Claimant for the period from 2003 until July 27, 2011?
3. What is the amount of any unpaid actual transportation fees and unpaid MGT fees owed by Claimant, but not yet due, for the period July 27, 2011, the date of the entry into force of the 2010 Amendment, through 2013?
4. What is the amount, if any, of actual transportation fees owed by Claimant for crude oil transported through the ITP facilities in 1990?
5. What is the amount, if any, of reimbursement owed by Claimant for the costs of equipment allegedly purchased by BOTA between 1997 and 2001?
6. What is the amount, if any, of reimbursement owed by Claimant for staff expenses for Iraqi personnel and offices at the Ceyhan ITP terminal allegedly incurred by Respondent?
7. Are any of Respondent's counterclaims time-barred?
8. Is Respondent entitled to interest on any sums awarded on its counterclaims? If so, what is the applicable interest rate and from which date does it apply?
...
Footnotes omitted
