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Equatoriana Geoscience Ltd was set up
Respondent is one of the three state owned companies set up by the former Government of Equatoriana in connection with its Northern Part Development Program (NP Development Program) [para 2 p4, Notice of Arbitration; p10 C2; para 3 p27, Response]. -
Claimant bought insolvent company Drone-Aircraft
Claimant bought Drone-Aircraft in 2017, an insolvent UAV manufacturer which had been active in that type of aircraft-like technology [para 10 p5, Notice of Arbitration]. -
Call for Tender
Respondent opened a tender process in connection with the NP Development Program, originally for the delivery of 4 drones primarily for earth surveillance and exploration purposes [para 4 p5, Notice of Arbitration; p9, C1]. -
Deadline for submission of tender offers
Respondent invited interested Parties to submit their offers in line with the conditions set out in greater details below until 30 April 2020 [p9, C1] -
Period: to
Negotiations with Drone Eye, Aerial Systems plc and Equatoriana Geoscience Ltd
Negotiations between Respondent and the two bidders: Claimant and Aerial Systems plc [para 8 p28]. -
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Anti-arbitration criticism in Parliament
The leader of the right-wing populist party had then criticised arbitration as a “non-transparent, non-accountable, slow and expensive means of dispute resolution wasting taxpayers’ money” in the parliamentary debate in connection with the approval of the arbitration clause in another contract concluded within the framework of the NP Development Program [para 16, Notice of Arbitration]. -
Meeting at Claimant's premises: new offer for 6 drones
The crucial meeting at Claimant’s premises was only attended by Mr. Field. Ms. Bourgeois (Field's assistant) was very surprised to learn in the aftermath of the meeting that Respondent ceased negotiations with Aerial Systems plc., and Claimant made an entirely new offer for 6 UAS including their service and maintenance which Mr. Field intended to accept [para 9 p28, Response; para 5 p32, R1]. -
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Anti-arbitration criticism re airport project
In the context of another contract the submission to arbitration was only approved by a small majority after the leader of one of the smaller opposition parties had castigated arbitration as a dispute resolution mechanism in the parliamentary debate about the very controversial airport project in Equatoriana’s capital [para 13 p29, Response]. -
Parliamentary debate cancelled
Parliament was supposed to discuss the government’s proposal to submit disputes arising from the Agreement to arbitration. On the day of the debate, the proposal was withdrawn [para 9 p18, C7; para 13 p29, Response]. -
Claimant emailed Respondent re Minister's approval and price for Kestrel Eye 2010
Mr. Bluntschli emailed Mr. Field and mentioned:
1) "We are glad to hear that the Minister does not consider the cancellation of the Parliamentary Debate and decision to be an obstacle to his approval of the agreement and that the signing procedure can proceed as planned";
2) initial bid for Kestrel Eye 2010 - EUR 10,000,000
3) "The version of the Kestrel Eye 2010 purchased under the Agreement constitutes our present top model for your purposes" [p35, R4] -
Formal signing of the Agreement
The Agreement was signed at a formal ceremony by Claimant’s CEO, Mr. William Cremer, Respondent’s CEO, Ms. Wilhelmina Queen, and Equatoriana’s then Minister of Natural Resources and Development, Mr. Rodrigo Barbosa [para 6 p5, Notice of Arbitration; p12, C2; para 4 p13, C3; para 12 p28, Response]. -
The Citizen's article re signing of the Agreement
In its edition of 2 December 2020, The Citizen had reported in detail about the signature of that Agreement and "the oddities surrounding its conclusion" [para 12 p18, C7; p33, R2] -
Deadline for advance payment
Per Art. 4(2) of the Agreement, Respondent will make an advance payment of EUR 10,000,000, two weeks after the signing of the Agreement. -
Period: to
Presentation of the Hawk Eye 2020
Claimant presented its newest UAS, the Hawk Eye 2020, at the air show in Mediterraneo [para 10 p5, Notice of Arbitration]. -
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Discussions with Mr. Field re Hawk Eye 2020
Claimant's discussions with Mr. Field re Hawk Eye 2020. Mr. Field accused Claimant of cheating Respondent by not disclosing that the Hawk Eye 2020 would be on the market soon but instead selling “old for new” by proposing Kestrel Eye 2010, the first version of which had been produced from 2010 onwards. Mr. Field threatened to terminate the entire contract for misrepresentation [para 13 p19, C7]. -
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Recurrence of anti-arbitration criticism in Parliament
In Spring 2021 the leader of the right-wing populist party commented re the alleged loss of sovereignty of Equatoriana “submitting to decisions of foreign private persons without any democratic legitimization”. -
Meeting with Mr. Field re misrepresentation
Respondent, in a meeting scheduled to discuss the issue of misrepresentation in May 2021, asked for changes to the arbitration clause, namely including references to UNCITRAL’s Transparency Rules [para 14 p19, C7]. !!!NO EXACT DATE!!! -
Amendment to arbitration clause
Ms. Queen, Respondent's CEO, emailed Mr. Cremer, Claimant's CEO (cc: Mr. Barbosa, Equatoriana's Minister of Natural Resource and Development), with a .PDF of a duly executed copy of the amendments to Art. 20 of the Agreement [p22, C9]. -
New parliamentary debate
A parliamentary debate took place where the leader of the right-wing populist party put the arbitration topic up for debate. In that debate the main line of argument of the government then was that their ministers had authorized only contracts with arbitration clauses providing for transparency explicitly referring to the clause in our Agreement as an example [para 16 p7, Notice; para 15 p19, C7] -
The Citizen's article re corruption scandal
The Citizen, Equatoriana’s leading investigative journal, owned by the leader of the Liberal Party, started to publish a series of headline articles about a massive corruption scheme surrounding the NP Development Program and several high-profile members of the ruling Socialist Party, namely Mr. Fields connection to 2 offshore accounts following leaked Panama Papers [para 11 p5, Notice of Arbitration; p16, C5; para 14 p29, Response]. -
Early elections
As a consequence of the public outcry, the socialist Prime Minister had to resign and call for early elections on 3 December 2021, which resulted in a new government formed by a coalition of several parties, including the Liberal Party [para 11 p5, Notice of Arbitration]. -
Moratorium on contracts within NP Development Program
Respondent informed Claimant of the moratorium on performance of all contracts within the NP Development Program, including the Agreement [para 12 p5, Notice; p17, C6]. -
First phone call after moratorium
Mr. Cremer contacted Ms. Queen following moratorium. Ms. Queen said that contracts were scrutinized for signs of corruption and other options to terminate or at least renegotiate them to make them more favorable to Equatoriana. She also mentioned that on Respondent's part the Agreement was negotiated by Mr. Field, and due to that the Agreement was likely affected by corruption and thus void [paras 5-7 p13, C3]. -
Appointment of Ms. Fonseca
The new government appointed the well-known criminal lawyer, Ms. Fonseca, as special public prosecutor, to investigate the endemic corruption surrounding the NP Development Program [para 15 p29, Response to the Notice of Arbitration]. -
Deadline for delivery of 3 fully equipped Kestrel Eye 2010
Per Art. 2(c) of the Agreement, Claimant undertakes to to deliver the first 3 fully equipped latest Kestrel Eye 2010 UAS until 15 January 2022. -
Second phone call after moratorium
Claimant mentioned that they had reviewed all payments made from their accounts to accounts in Equatoriana from the date of the invitation to tender until two months after contract conclusion and had found no suspicious payments. Also indicated openness to renegotiate the Agreement (e.g. reducing the number of drones or mounting different eqipment) [para 7 p13, C3]. -
Charges brought against Mr. Field
Ms. Fonseca announced at a press conference the charges brought against Mr. Field, the public prosecutor specially appointed to investigate the corruption in the context of the ND Development Program. Furthermore, she promised that these investigations would be terminated by the end of 2023 and charges would then be brought, long before any of the potential crimes would be time-barred [para 16 p29, Response to the Notice of Arbitration; p33, R2]. -
The Citizen's article re Ms Fonseca's investigation
Article was titled "Justice finally delivered!? Or is it more a personal matter?" [p33, R2] -
Last meeting between the Parties
The meeting took place on 28 May 2022. It was very short. Ms. Queen was not really interested in any amicable solution, accused Claimant of bribing government officials, as well as misrepresentation in relation to the UAVs sold. In her view, Mr. Bluntschli had deceived Respondent’s COO about the quality of the drones which were – contrary to Mr. Bluntschli’s assurances – allegedly not Claimant's newest model and state-of-the-art [para 8 p14, C3]. -
Respondent's letter on termination of negotiations
Ms. Queen informed Mr. Cremer by registered letter that Respondent “no longer considers itself bound by” the Agreement due to (1) corruption and (2) misrepresentation, and “avoids [the Agreement] pursuant to Article 3.2.5 of the International Commercial Code of Equatoriana as interpreted by the Equatoriana Supreme Court” [para 15 p6, Notice; para 11 p18, C7; p20, C8; para 19 p30, Response, para 27 p31, Response]. -
Notice of Arbitration
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Response to the Notice of Arbitration
Respondent appointed Professor María Luisa Drago as his arbitrator to deal with the substance of the claim [p26]. -
Claimant's objection to stay and bifurcation
Claimant noted its strong objection to any stay of proceedings, as requested by the Respondent in its Response. Likewise, Claimant objected to the bifurcation of these proceeding [p40]. -
Procedural Order No. 1
p42 -
Deadline for delivery of 4th fully equipped Kestrel Eye 2010
Per Art. 2(d)(i) of the Agreement, Claimant undertakes to deliver one fully equipped Kestrel Eye 2010 UAS on 31 December 2022. Per. Art. 4(3) of the Agreement, upon the delivery of each of the fully equipped drones another EUR 5,000,000 has to be paid while the remaining amount will be taken from the advance payment until it is depleted. -
Planned delivery of 6 Kestrel Eye 2010 to Respondent
The Agreement provided for the delivery of 6 Kestrel Eye 2010 drones for an overall price of EUR 44 million [Art. 7, Notice of Arbitration]. -
Deadline for delivery of 5th Kestrel Eye 2010 UAS
Per Art. 2(d)(ii) Claimant undertakes to deliver one additional latest Kestrel Eye 2010 UAS on 1 July 2023 (equipment to be agreed and separately priced). -
Planned completion of Ms. Fonseca's investigation into Mr. Field
The public prosecutor made clear that her investigations into Mr. Field will be completed by the end of 2023 at the latest and charges will be brought by then [para 23 p30, Response]. -
Deadline for delivery of 6th Kestrel Eye 2010 UAS
Pert Art. 2(d)(iii) of the Agreement, Claimant undertakes to deliver one additional latest Kestrel Eye 2010 UAS on 31 December 2023 or later, if requested by Respondent (equipment to be agreed and separately priced). -
Expected date of decision of new corruption court chamber
The new government has also set up a special chamber in the criminal court to deal with all corruption charges relating to the NP Development Program and promised that the average duration of first instance proceedings in this chamber should not be longer than 6-7 months so that a decision can be expected in July 2024 at the latest [para 24 p31, Response].