Summary

A. Background: The road to the hearing

1. These arbitration proceedings have been far from normal. The defendant did not participate in the hearing of these proceedings at all, and that is an understatement; the defendant simply did not participate in anything, pure and simple. On 5th October 2022, after a previous adjournment of the preliminary meeting, I issued an order on the preliminary hearing in the unexplained absence of the defendant and gave directions for the further conduct of these arbitration proceedings.

2. When I gave directions at the preliminary meeting, I made it clear that it was always left open for the defendant to decide to take part in the proceedings and, still, the defendant was a no show. The defendant did not submit a defence to the claimant's statement of case or submit anything at ah.

3. I set out the reasons in the order of 5th October 2022 why I was satisfied that the defendant had been sufficiently served with the documents in these proceedings but purposefully decided not to take part in the proceedings. I will not hazard a guess as to why the defendant would choose such a course of action. That would be neither helpful nor necessary.

4. The hearing of the proceedings took place on 7th March 2023, again after several postponements aimed at ensuring that the defendant was given due notice of the hearing and opportunity to take part in the proceedings. I satisfied myself that service on the defendant had taken place at their designated addresses both in the United States of America and in the Republic, of South Africa. We set the hearing for 3 pm, CAT, in order to accommodate the defendant that's located in the United States of America.

The reasoning was that, this way, should the defendant decide to take part in the hearing, its officers would find it fairly more convenient if we set the hearing for the afternoon, Malawi time, given the time differences between Malawi and the United States of America. Still the defendant did not turn up.

5. Having satisfied myself that the notice of hearing, the trial bundle and relevant documents had duly been brought to the defendant's attention, I allowed the hearing to take place on 7th March 2023.

B. The Claimant's Claim

6. The Claimant, Malawi Communications Regulatory Authority (MACRA) delivered a statement of case dated 10th October, 2022. The claimant claims the sum of US$ 22,961,719, compound interest thereon at 10% above National Bank of Malawi's base lending rate, damages for breach of contract and for costs of the arbitration. The Claimant alleges that the defendant (an American company) breached contracts that it entered into with the Claimant beginning 2010 for the supply, installation and commissioning of a telecommunications monitoring system known as the consolidated ICT Regulatory Management System (CIRMS). The purpose of the CIRMS has been described as to facilitate the more effective regulation by the claimant of the telecommunications industry in Malawi, of which the Claimant is the regulator.

J. FINAL AWARD

52.1 therefore order as follows:

a. The defendant is liable for breach of contract and the claimant is entitled to damages therefor. I so find.

b. The claimant should hereafter proceed within 14 days hereof to submit and serve evidence on the calculation of damages for breach of contract for my consideration and pronouncement.

c. The claimant is entitled to costs of the proceedings in respect both of the proceedings hitherto and in respect of the follow-up proceedings that I have directed.

d. At the hearing of the claimant's evidence for breach of contract, the claimant shall further proffer its calculation of the quantum of costs of the arbitration for my assessment and pronouncement therein.

Dated this 19th day of May, 2023

PATRICE C. NKHONO, SC
ARBITRATOR

Agilis International Inc. ("Agilis"), now known through merger as Precisely Software Incorporated ("Precisely").