WongPartnership LLP

12 Marina Boulevard Level 28

Marina Bay Financial Centre Tower 3
Singapore 018982
T +65 6416 8000
wongpartnership.com

ASEAN | CHINA | MIDDLE EAST

Date: 3 June 2020 FROM

JT/CQY/20173041
Conakry Court
A coté de Sékoutoureya – Almamya, f:+65 6532 5722
Not for service of court documents
Commune de Kaloum, Not for urgent correspondence
BP: 564,
Conakry – Guinée d:+65 6416 8138 / 6517 3754

Attentin: The First President of the Court of Appeal e: joy.tan@wongpartnership.com

qiyang.chang@wongpartnership.com

By Mail & Email

Dear Sirs

Singapore International Arbitration Centre (“SIAC”)

Arbitration No. 254 of 2018 and No. 255 of 2018 (“SIAC ARB 254/255”)

1. We act for Moi International (Singapore) Pte Ltd, the Claimant in the above captioned matter SIAC ARB
254/255. The Respondent is Nabgul & Universal SARL.

2. We refer to the final award in SIAC ARB 254/255 registered in the SIAC Registry of Awards as Award
No. 004 of 2020 on 8 January 2020 (the “Final Award”).

3. We are instructed to confirm to the Honourable Court that under Article 3 of the Singapore International
Arbitration Act (Cap. 143A) (the “Act”) which provides that the UNCITRAL Model Law on International
Commercial Arbitration (the “Model Law”) shall have the force of law in Singapore (subject to the Act),
the application for setting aside in the Singapore Court may not be made after three months have elapsed
from the date on which the party making that application had received the award or, if a request had
been made under Article 33 of the Model Law, from the date on which that request had been disposed
of by the arbitral tribunal (see Article 34(3) of the Model Law). Copies of the relevant extracts of the Act
and Model Law are enclosed hereto as Annex A for the Honourable Court’s reference

4. In this respect, we further confirm to the Honourable Court that:

a. Parties in SIAC ARB 254/255 received the Final Award by way of email from the SIAC on 8
January 2020, and the original copy was subsequently couriered by the SIAC to parties
respectively. A copy of the relevant correspondence from the SIAC dated 8 January 2020 is
enclosed hereto as Annex B for the Honourable Court’s reference.

b. The Respondent has not appealed against / applied to set aside the Final Award in the Singapore
Court to date. Copies of the relevant litigation searches in the Singapore Court dated 2 June 2020
are enclosed hereto as Annex C for the Honourable Court’s reference.

c. Accordingly, under Singapore law (see paragraph 3 above), the time limited for the Respondent
to make any application for setting aside against the Final Award in the Singapore Court has
elapsed as of 8 April 2020.

WongPartnership LLP (UEN: T08LL0003B) is a limited liability law partnership

registered in Singapore under the Limited Liability Partnerships Act (Chapter 163A).

V20171024
WONGPARTNERSHIP LLP
JT/CQY/20173041
3 June 2020
Page: 2

d. In the circumstances, the Final Award remains final and binding on the parties.

5. We thank the Honourable Court for its attention to the above.

Yours faithfully

WONGPARTNERSHIP LLP

Enc.

cc. Client
ANNEX A
 INTERNATIONAL ARBITRATION ACT
(CHAPTER 143A)
(Original Enactment: Act 23 of 1994)

[27th January 1995]

Model Law to have force of law

3.—(1) Subject to this Act, the Model Law, with the exception of Chapter VIII
thereof, shall have the force of law in Singapore.
(2) In the Model Law —
“State” means Singapore and any country other than Singapore;
“this State” means Singapore.

Singapore Statutes Online Current version as at 29 May 2020 PDF created date on: 29 May 2020
 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

UNCITRAL Model Law on

International Commercial
Arbitration

1985
With amendments
as adopted in 2006

UNITED NATIONS
Vienna, 2008
Part One. UNCITRAL Model Law on International Commercial Arbitration 19

tribunal to correct in the award any errors in computation, any clerical or

typographical errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party,
may request the arbitral tribunal to give an interpretation of a speci!c point
or part of the award.
If the arbitral tribunal considers the request to be justi!ed, it shall make the
correction or give the interpretation within thirty days of receipt of the
request. The interpretation shall form part of the award.

(2) The arbitral tribunal may correct any error of the type referred to in
paragraph (1)(a) of this article on its own initiative within thirty days of the
date of the award.

(3) Unless otherwise agreed by the parties, a party, with notice to the other
party, may request, within thirty days of receipt of the award, the arbitral
tribunal to make an additional award as to claims presented in the arbitral
proceedings but omitted from the award. If the arbitral tribunal considers
the request to be justi!ed, it shall make the additional award within sixty
days.

(4) The arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction, interpretation or an additional award under
paragraph (1) or (3) of this article.

(5) The provisions of article 31 shall apply to a correction or interpretation

of the award or to an additional award.

CHAPTER VII. RECOURSE AGAINST AWARD

Article 34. Application for setting aside as exclusive

recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an

application for setting aside in accordance with paragraphs (2) and (3) of
this article.

(2) An arbitral award may be set aside by the court speci!ed in article 6
only if:
(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in article 7
was under some incapacity; or the said agreement is not
20 UNCITRAL Model Law on International Commercial Arbitration

valid under the law to which the parties have subjected it or,
failing any indication thereon, under the law of this State; or
(ii) the party making the application was not given proper notice
of the appointment of an arbitrator or of the arbitral proceed-
ings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not fall-
ing within the terms of the submission to arbitration, or contains
decisions on matters beyond the scope of the submission to
arbitration, provided that, if the decisions on matters submitted
to arbitration can be separated from those not so submitted,
only that part of the award which contains decisions on matters
not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral proce-
dure was not in accordance with the agreement of the parties,
unless such agreement was in con!ict with a provision of this
Law from which the parties cannot derogate, or, failing such
agreement, was not in accordance with this Law; or
(b) the court !nds that:
(i) the subject-matter of the dispute is not capable of settlement
by arbitration under the law of this State; or
(ii) the award is in con!ict with the public policy of this State.

(3) An application for setting aside may not be made after three months
have elapsed from the date on which the party making that application had
received the award or, if a request had been made under article 33, from
the date on which that request had been disposed of by the arbitral
tribunal.

(4) The court, when asked to set aside an award, may, where appropriate
and so requested by a party, suspend the setting aside proceedings for a
period of time determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take such other action
as in the arbitral tribunal’s opinion will eliminate the grounds for setting
aside.

CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF AWARDS

Article 35. Recognition and enforcement

(1) An arbitral award, irrespective of the country in which it was made,

shall be recognized as binding and, upon application in writing to the
ANNEX B
AT THE SINGAPORE INTERNATIONAL ARBITRATION CENTRE
IN THE MATTER OF AN ARBITRATION UNDER THE ARBITRATION RULES OF THE SINGAPORE
INTERNATIONAL ARBITRATION CENTRE (6TH EDITION, 1 AUGUST 2016)

BETWEEN:-

MOI INTERNATIONAL (SINGAPORE) PTE LTD Claimant

and

NABGUL & UNIVERSAL SARL Respondent

SIAC ARBITRATION NO. 254 OF 2018

(CONSOLIDATED BY THE SIAC COURT OF ARBITRATION
WITH SIAC ARBITRATION NO.255 OF 2018)

________________________________

FINAL AWARD
_________________________________

I. INTRODUCTION

1. By a Notice of Arbitration dated 30 August 2018 the Claimant (“MOI”) brought claims
against the Respondent (“Nabgul”) in connection with Sale Contracts dated 17 September and
19 November 2015 (respectively, the “Amsel Contract” and the “Arinaga Contract”).1 By
these contracts, MOI agreed to sell and Nabgul to buy certain quantities of rice. MOI
complains that Nabgul failed to pay the sums due under the Amsel and Arinaga Contracts in
full, despite the rice having been delivered to Conakry in March and April 2016. As a result of
such failure, MOI says that it incurred storage, agency, stevedoring and insurance fees and
had to re-sell 6,587 MT of the rice to the Société Guinéene de Commerce et de Gaz SARL
(“SGCG”) at a loss. MOI claims damages of US$3,766,139.60 (reduced from the

1
The Respondent is referred to in the signature page of the Amsel Contract as “NAGBUL &
UNIVERSAL SARL” although the stamp chopped next to that name identifies the signatory as
“Le Directeur Général” of “NABGUL & UNIVERSAL SARL”. Similarly, the Arinaga Contract
refers to the Respondent as “NAGBUL & UNIVERSAL SARL” on the initial and signatory pages,
but the stamp chopped on the signatory page again identifies the person signing as “Le
Directeur Général” of “NABGUL & UNIVERSAL SARL”. The January 2017 Agreement
(mentioned below) identifies the Buyer as “NAGBUL & UNIVERSAL SARL” on the first page.
On its last page, the January 2017 Agreement is simply signed by “NAGBUL & UNIVERSAL
SARL” without bearing the stamp of the Director General. “Nagbul” thus appears to be a
typographical error for “Nabgul”. Accordingly, the name “Nabgul” will be used here to
identify the Respondent.
US$4,188,652.90 claimed prior to the amendment of the Statement of Claim) plus interest
and costs in respect of Nabgul’s alleged breaches of its obligations under the Amsel and
Arinaga Contracts. Nabgul denies liability.

2. The Amsel and Arinaga Contracts each contain an arbitration agreement. Nabgul initially
contended that I lacked jurisdiction as arbitrator to determine the parties’ disputes under the
Amsel and Arinaga Contracts. This was because, according to Nabgul, the arbitration
agreements in the Amsel and Arinaga Contracts were superseded by the provisions of an
Agreement dated 30 January 2017 (the “January 2017 Agreement”) signed (among others) by
MOI and Nabgul. By a Decision on Jurisdiction dated 24 April 2019 I held that there was no
basis for Nabgul’s jurisdictional challenge and that the parties’ entry into the January 2017
Agreement had not affected the validity of the arbitration agreements in the Amsel and
Arinaga Contracts. Those arbitration agreements continued in force after the January 2017
Agreement. I consequently dismissed Nabgul’s jurisdictional challenge, reserving all questions
of costs in connection with such challenge to later determination.

3. This Final Award deals with the merits of MOI’s claims. It also determines the incidence
and quantum of the costs of these arbitration proceedings, including the reserved costs of the
jurisdictional challenge. The substantive hearing of this arbitration took place on 5 October
2019 at Maxwell Chambers (32 Maxwell Road, #03-01, Singapore 069115). Mr. Rajesh Khera
(“Mr Khera”) (MOI’s Vice-President) gave evidence at that hearing. The facts and matters set
out in Section II below are based on his evidence. Nabgul was not present at the hearing.

4. At the end of the substantive hearing on 5 October 2019, I made the following
directions:
(1) MOI is to send a copy of the transcript of the substantive hearing held on 5 October
2019 to Nabgul as soon as MOI receives a copy of such from EPIQ Singapore Pte Ltd (the
transcription service provider).
(2) MOI is to send copies of the Skeleton Costs Submissions and Costs Annex Bundle
which were adduced to the Tribunal and referred to by MOI at the substantive hearing,
to Nabgul via email following the substantive hearing.
(3) Nabgul will have two weeks after the receipt of MOI’s Skeleton Cost Submissions
and Costs Annex Bundle to send Reply Submissions (if any).
(4) MOI will have one week thereafter to respond to Nabgul’s Reply Submissions (if
any).
(5) In the absence of any Reply Submissions from Nabgul, the proceedings will be
deemed closed on the expiry of the time limited for Nabgul to submit Reply Submissions.
In the event that Nabgul files Reply Submissions, the proceedings will be deemed closed
after the time limited for MOI to submit a response.

5. MOI sent a copy of its Skeleton Costs Submissions and Costs Annex Bundle to Nabgul by
email dated 5 October 2019. A copy of the transcript of the substantive hearing was sent to
Nabgul on or about 11 October 2019. Nabgul did not submit any Reply Submissions. Nor did
Nabgul seek an extension of the time in which to do so. Accordingly, pursuant to my directions
at the substantive hearing on 5 October 2019, these arbitration proceedings came to a close
on 19 October 2019.

3
II. BACKGROUND

6. MOI was incorporated in Singapore with its registered address at 5 International

Business Park, #05-00 Mewah Building, Singapore 609914 (Attn: Mr Rajesh Khera/ Mr Julian
Goh; Tel: +65 6829 5296; Fax: +65 6829 5170; Email: kherarajesh@mewahgroup.com,
juliangoh@mewahgroup.com). It is represented by:
WongPartnership LLP
Address: 12 Marina Boulevard, Marina Bay Financial Centre Tower 3, Level 28,
Singapore 018982
Attn: Ms. Joy Tan and Mr. Qiyang Chang
Tel: +65 6416 8138 and +65 6517 3746
Fax: +65 6532 5722
Email: joy.tan@wonqpartnership.com and qiyang.chang@wongpartnership.com

7. Nabgul was incorporated in Guinea with address at PO Box 5040, Pres de Motel Riviera
Ratoma, Conakry, Guinee Conakry. It was initially represented by:
Asialegal LLC
Address: 10 Collyer Quay #18-01 Ocean Financial Centre Singapore 049315
Attn: Mr. P. Jeya Putra
Tel: +65 6538 6488
Fax: +65 6333 1191
Email: jeya@asialegal.com.sg and gaurav@asialegal.com.sg

8. By email dated 2 May 2019 Asialegal LLC informed the SIAC and the Tribunal that it was
no longer instructed by Nabgul and that all future correspondence should be sent to Nabgul
directly. Since then all communications from me to the parties and from MOI to me have
been copied to Nabgul at the following email addresses:
(1) "boubacarsidikinabe@gmail.com" <boubacarsidikinabe@gmail.com>.
(2) "boubacarsidikinabe@icloud.com" <boubacarsidikinabe@icloud.com>.
The emails sent by me to Nabgul have not bounced back and accordingly Nabgul may be
assumed to have received the emails and, through them, to have been aware of the course
of these arbitration proceedings. Following Asialegal LLC’s withdrawal as Nabgul’s
representatives, Nabgul has not taken part in these proceedings. Given Nabgul’s knowledge
of what has been happening in these proceedings, it must be presumed that since 2 May 2019
Nabgul has deliberately refrained from taking part in this arbitration. In my view, Nabgul had
ample notice of (and a full opportunity to participate in) these proceedings.

9. Clause 12 of the Amsel and Arinaga Contracts have identical arbitration agreements
in the following terms:
12) Arbitrage (Arbitration):
En cas de dispute quelconque concernant ce contrat, les deux parties
conviennent de faire appel à l'Arbitrage du SIAC à Singapour, en langue
Anglaise et droit Singapourien.
In case of any dispute regarding this contract, both parties agree to use the
SIAC. Arbitration in Singapore, in English Language and Singapore Law.

4
The seat of this arbitration and its governing law are thus plainly Singapore and Singapore law
respectively. As the parties agreed to “use the SIAC” for any dispute regarding the Amsel and
Arinaga Contracts, these proceedings are subject to the Arbitration Rules of the Singapore
International Arbitration Centre (6th Edition, 1 August 2016) (the “SIAC Rules”) in accordance
with Rules 1.1 and 1.2 of the SIAC Rules.

10. MOI applied to SIAC to consolidate the arbitrations under the Amsel and Arinaga
Contracts. Nabgul resisted consolidation. SIAC informed the parties on 27 December 2018
that, pursuant to Rule 8.4 of the SIAC Rules, the SIAC Court of Arbitration had decided to grant
the Claimant’s application for consolidation.

11. I was appointed as sole arbitrator in this consolidated arbitration by the President of
the SIAC Court of Arbitration pursuant to Rule 10.2 of the SIAC Rules on 25 January 2019. The
parties were informed of the constitution of the Tribunal on this same day. My contact details
are:
1710 Eastern Harbour Centre
28 Hoi Chak Street
Hong Kong
Tel: +852 2501 0667
Fax: +852 2501 0677
Email: reyes.anselmo@gmail.com

12. The parties to the Amsel and Arinaga Contracts were MOI as seller, Nabgul as buyer,
and Confidence Commodities Pte Ltd ("CC"). CC brokered the agreements between MOI and
Nabgul. The Amsel and Arinaga Contracts were later varied by Addendums entered into on 7
December 2015 and 2 April 2016 (respectively, the “Amsel Addendum” and the “Arinaga
Addendum”) among MOI, Nabgul and CC. The January 2017 Agreement referred to above
was executed by MOI as seller, Nabgul as buyer and Mr. Ali Handjani as “Facilitator”.

13. By the Amsel Contract Nabgul agreed to buy 10,000 MT of rice from MOI. By the Amsel
Addendum, Nabgul agreed to purchase a further 2,000 MT of rice. The price of the rice sold
under the Amsel Contract (as amended by the Amsel Addendum) was US$4,511,000.00 for
12,000 MT of rice. The goods under the Amsel Contract and Amsel Addendum were shipped
on board the MV AMSEL, with an estimated arrival date in Conakry around the end of
December 2015 on an All Going Well Weather Permitting (AGWWP) basis.

14. By the Arinaga Contract Nabgul agreed to buy 12,500 MT of rice from MOI. By the
Arinaga Addendum, the parties agreed to reduce the quantity of rice to 7,500 MT. The price
of the rice sold under the Arinaga Contract (as amended by the Arinaga Addendum) was
US$2,731,950.00 for 7,500 MT of rice. The goods under the Arinaga Contract and Amsel
Addendum were shipped on board the MV ARINAGA, with an estimated arrival date of around
31 March 2016 under Clause 5 of the Arinaga Addendum.

15. The MV AMSEL was supposed to set sail from Thailand on 20 October 2015 and arrive in
Conakry in December 2015. It did not arrive in Conakry until 8 April 2016. This lateness
appears to have been due to delay in departing from Thailand and to the vessel’s arrest in
Abidjan by its bunker suppliers on account of outstanding payments owed by the vessel’s

5
previous owner Amsel Navigation Co. Limited. Nabgul does not seem to have complained
about the vessel’s delayed arrival at Conakry. The MV ARINAGA in contrast sailed from
Thailand on 18 December 2015 and arrived in Conakry as scheduled on 31 March 2016.

16. Clause 9 of the Amsel and Arinaga Contracts sets out the terms of payment for the rice
shipments. Nabgul was to pay deposits representing 10% of the value of the Amsel and Arinaga
Contracts respectively within 3 working days from the dates of signing each contract. MOI
was prepared to accept a cheque of guarantee from CC drawn on DBS Bank in Singapore in
lieu of these deposits. The remaining 90% of the purchase price for each consignment was
payable by letter of credit opened by Nabgul in MOI’s favour within 15 and 10 days from the
estimated dates of arrival of MV AMSEL and MV ARINAGA respectively. The remaining 90% of
the purchase price for each consignment was payable under the letters of credit within 90
days from the estimated arrival dates of the relevant vessels in Conakry. Further, by clause 9,
interest at 5% per annum would accrue on unpaid sums due under the Amsel and Arinaga
Contracts.

17. Thus, a letter of credit for the Amsel Contract in the amount of US$4,059,900.00 ought
to have been opened in MOI’s favour by 23 April 2016 and that amount should have been paid
to MOI under the letter of credit by 7 July 2016. Additionally, a letter of credit for the Arinaga
Contract in the amount of US$2,458,755.00 ought to have been opened in MOI’s favour by 10
April 2016 and that amount should have been paid under that letter of credit by 29 June 2016.

18. But Nabgul failed to open letters of credit as stipulated under the Amsel and Arinaga
Contracts. Instead Nabgul provided MOI with a letter of credit for US$1.9 million on 10 June
2016. The parties agreed to utilise the US$1.9 million letter of credit to offset sums owed by
Nabgul to MOI under contracts other than the Amsel and Arinaga Contracts. The US$1.9
million facility was thereby reduced to US$1,558,911.84. This balance was applied as partial
payment for the rice shipped under the Amsel and Arinaga Contracts.

19. After the arrival of MV AMSEL and MV ARINAGA in Conakry, a Collateral Management
Agreement (“the CMA”) was entered into between the parties and ACE Global Depository
(“ACE”) as CMA Agent in accordance with clause 15 of the Amsel and Arinaga Contracts. From
April to October 2016 MOI issued release orders for a total of 5,360.10 MT of rice to Nabgul
pursuant to the CMA. At the end of 2016, there remained approximately 14,200 MT of rice in
storage under the CMA which continued to incur CMA and storage charges. The parties
consequently entered into the January 2017 Agreement “in continuance” of the Amsel and
Arinaga Contracts in order “to find solution[s]/possibilities of selling app. 14,200 MT of White
rice lying in Conakry out of vessel MV Amsel and MV Arinaga since April 201[6]”. Under the
January 2017 Agreement2 the Parties (in the presence of Mr. Handjani as CC’s representative)

2
The January 2017 Agreement more specifically provided as follows:

AGREEMENT DATED 30.01.2017:

In continuation of Contrat N°: MSR15050 & 15051 of MV Amsel Dated: 17 September 2015 and
Contract no. MSR 150195 / MV Arinaga dated 19.11.2015 and subsequent amendments

Seller: MOI International (Singapore) Ptc Ltd, Mewah Building, 5, International Business Park,
609914, Singapore, represented by Mr Rajesh Khera its Vice-Président

6
Buyer: NAGBUL & UNIVERSAL SARL, BP 5040, Pres de 1'Hotel Riviera Ratoma, Conakry, Guinée
Conakry represented by its CEO Mr Nabe Boubacar Sidiki.
Facilitator: Mr. Ali Handjani who will act as facilitator between both buyer and seller and will try
to pursue all concerned parties to successfully implement the agreement.

This agreement pertains to find solution./ possibilities of selling app. 14,200 mt of White rice lying
in Conakry out of vessel MV Amsel and MV Arinaga since April 2015 after the cancellation of buying
contract between Conakry Army and the buyer. The breakup of material is as under:-
App. 9,200 mt of Thai White rice 25% Old crop in 50kg PP bags.
5,000 mt of Thai White rice 5% Old crop in 50kg PP bags.
All the parties i.e. seller, buyer and facilitator deliberated to find the various options to sell the rice
and worked out following options:-

Option-1:-
- Sell to Army:-
o Mr. Nabe and Mr. Ali Handjani will approach The relevant Govt. authorities of
Conakry by 10th Feb. 2017 and will request him to reinstate the contract at revised prices
which will take into account the original cost of buying, stevedoring cost, storage cost and
present currency rate. All the parties will discuss and arrive at mutual agreed decision about
pricing of rice to Army.
o Seller will give open credit up to 2,000mt to enable Buyer to service the army
contract on monthly basis.
o Buyer will pay for 2,000mt before the next release is made.
o Mr. Nabe will liaise with Custom and Port Authorities to get waiver for the additional
storage charges.

Option-2:-
- Sell to open Market
o In order to reinstate the confidence of market in quality of rice, which is lying in
Conakry for almost a year now and there are rumours that quality has deteriorated, MOI
will transfer 2,000mt of cargo from Port warehouse to Matam warehouse.
o MOI will release cargo equivalent to the value US$ 461,698.05 on account of
following factors
• USS 377,904.51, which Confidence Commodities owe to Mr. Nabe due
to assignment of insurance claim of MV Ocean Pearl. Out of this amount US$
93,362.56 belongs to insurance premium for MV Amsel, which Nabgul
disputes as authorised by it.
• US$45,793.54 is the amount which MOI owes Nabgul as balance
amount from LC of $1.90mn.
• US$ 38,000 is the expenses incurred by Nabgul for taking duty benefit
of 5% white rice and reinstating the exoneration for rice.
• In addition to above stated figure of US$ 461,698.05, MOI will release rice
eqvt to value of payment made by Nabgul to GETMA [the stevedoring and
warehousing agent used for the shipments] and for which GETMA will issue credit
note to MOI as receipt of funds towards stevedore charges- storage charges.
o The stock will be released at following prices
• For first total 2,000mt:- 5% White rice at a price of US$ 370/mt and
25% White rice at US$ 360/mt
• After 2,000mt:- 5% White rice at a price of US$ 380/mt and 25% White
rice at US$ 370/mt/
o Any release after the amount as mentioned above will be against the TT payment by
Buyer to Seller.
o MOI will pay all the stevedore charges and warehouse charges to Getma.
o MOI will arrange for transportation of cargo to Matam warehouse.

7
set out two options to be attempted concurrently in order to dispose of the remaining stored
rice. One option was to try to reinstate the Army Supply Contract.3 The other option was to
look for third party buyers. Further to the January 2017 Agreement, another 3,755MT of rice
were released to Nabgul. The total purchase price of the rice released to Nabgul under the
January 2017 Agreement was US$3,369,965.51. But, as Mr. Khera observed in his evidence,
MOI only received US$2,322,453.79 in cash or cash equivalent for the rice so released. The
amount of US$1,047,511.72 remained outstanding in respect of the rice so released.

20. By Clause 15 of the Amsel and Arinaga Contracts, Nabgul was to bear costs related to
the CMA including “insurance premiums of the goods, warehouse rental, CMA agency fees...”.
MOI wrote to Nabgul about these obligations on 19 September and 20 October 2016
respectively. But Nabgul failed to meet the same. Thus, MOI had to pay the monthly CMA
fees due to ACE for services under the CMA from May 2016 to August 2018. A total of
US$229,290.66 in CMA Fees was paid by MOI to ACE in this respect. MOI also paid
US$138,821.96 by way of insurance premiums to NSIA Assurances and Group Eyssautier for
the period from July 2016 to August 2018.

21. By Clause 3 of the Amsel and Arinaga Contracts, the sales of rice to Nabgul were on a
C&F Free Out and CIF Free Out basis respectively. This meant that all stevedoring and
warehousing fees were for Nabgul’s account. Under the January 2017 Agreement, it was
agreed that MOI would initially pay the stevedoring and warehousing fees to GETMA Guinée
SA (“GETMA”) on MOI’s behalf. But that arrangement did not cover US$250,000.00 in
stevedoring and warehousing fees which had been incurred prior to the January 2017
Agreements in respect of MOI’s rice shipments. Representatives from MOI, Nabgul, GETMA
and CC met in Conakry in July 2017 to discuss the way forward. This resulted in an agreement
(“the GETMA Agreement”) whereby MOI would advance US$250,000.00 to GETMA on
Nabgul’s behalf in payment of those GETMA fees. MOI made that payment on 1 August 2017.

o Nabgul will pay the custom duty on the cargo, which he will recover from ultimate
buyer.
o Mr. Nabe will help in getting waiver for the custom duty of 100mn GFC imposed by
Custom authorities.
o MOI representative in Conakry Mr. Dev Hotwani will work in close association with
Mr. Nabe and will not approach the market. He will work from the office space provided by
Mr. Nabe and will monitor stock movement.
o In case sale to Army does not work out, then Mr. Nabe will keep selling rice in the
local market on terms as stated above.
o MOI will also be authroised [sic] to sell cargo to other buyers and Mr. Nabe will to
help declaring the rice in custom so that rice can be liquidated a.s.a.p. to avoid further
deterioration of quality and mounting storage charges and will not block the sale by anyway.
o MOI will assist Nbagul Nabgul to arrest the vessel MV Amsel.

Reconciliation of accounts between Confidence Commodities (CC) and Mr. Nabe:-

Mr. Handjani and MOI will facilitate to reconcile the accounts between the two parties and hope
to resolve the same by 1st Feb 2017. Post which CC will transfer the amount to MOI as payment
on behalf of Mr. Nabe.

3
There had previously been a contract for Nabgul to supply rice to the Conakry army. But the army had cancelled
this contract.

8
22. Nonetheless, Nabgul is said by MOI to have owed GETMA yet other fees in relation to
other shipments and matters, apparently in the amount of €586,921.47. According to MOI,
Nabgul’s non-payment of those other fees led to GETMA seizing large quantities of the
remaining stored MOI rice on 4 July 2017. More specifically, GETMA is said to have seized
67,017 bags of VIKOR Thai 5% rice weighing 3,350.85 MT and 48,562 bags of 25% VIKOR Thai
rice weighing 2,428.10 MT. The seized amount was later reduced to 3,078.30 MT of rice,
consisting of 1,507.30 MT of VIKOR Thai 5% rice valued at US$380 per MT and 1,571 MT of
VIKOR Thai 25% rice valued at US$368 per MT. The total purchase value of the rice ultimately
seized by GETMA is said by MOI to be US$1,150,902.00.

23. MOI sought legal recourse against GETMA in relation to its seizure of MOI’s rice. On 1
November 2017 the Mafanco Tribunal of First Instance in Conakry held that MOI was liable to
pay GETMA €586,921.47, and ordered MOI to pay the fees and expenses of the proceedings
as well. MOI appealed. On 25 July 2018 the Conakry Court of Appeal reversed the first instance
judgment. The Court of Appeal held that GETMA had wrongfully seized and sold rice belonging
to MOI. The Court of Appeal ordered GETMA to pay MOI the equivalent of the 60,000 bags
illegally sold. GETMA however failed to return any of the bags wrongfully seized and has not
made any payment to MOI. On 12 February 2019 the Conakry Court of Appeal further declared
that GETMA's appeal was unsubstantiated. The Court of Appeal again ordered GETMA to
reimburse MOI with the value of 60,000 bags of rice by way of damages and ordered Nabgul
to pay €586,921.47 to GETMA for various services provided by GETMA. On 12 April 2019 the
Supreme Court of the Republic of Guinea ordered a stay of execution of the latter judgment.
Currently, MOI is awaiting the ruling of the OHADA Court in Abidjan to see if the Court of
Appeal judgments in its favour may be enforced against GETMA and Nabgul.

24. To mitigate its loss, MOI sought third party buyers for the remaining rice. After
considering several offers, MOI agreed to sell 6,587 MT of rice to SGCG by contracts dated 12
March and 20 April 2018. By this time, the rice having been in storage since 2016, there had
been deterioration and the rice had to be sold at a significant discount to SGCG. Further,
although the total amount of rice agreed to be sold to SGCG had been 6,587 MT, it was
discovered during a stock-taking in May 2018 that large quantities of rice had been stolen or
were unaccounted for in the warehouse where the rice had been stored. As a result, only
4,906.35 MT of rice (valued at US$604,024.00) could be delivered to SGCG, resulting in a loss
to MOI of US$1,852,846.00. MOI received six insurance claim pay-outs for the stolen or
missing rice. These insurance pay-outs have consequently reduced its loss to US$949,613.26.

III. DISCUSSION

Having considered the parties’ submissions, the reliefs sought, and the circumstances of these
proceedings, the Tribunal considers the following principal issues arise for the Tribunal’s
consideration:

A. Issue 1: Were Nabgul’s obligations under the Amsel and Arinaga Contracts varied by the
January 2017 Agreement?

25. In its jurisdictional challenge, Nabgul submitted that the January 2017 Agreement varied
the parties’ original obligations under the Amsel and Arinaga Contract. As a result, it was said

9
that Nabgul’s payment obligations under the Amsel and Arinaga Contracts were superseded
by the new obligations set out in the January 2017 Agreement. Nabgul contended that its
payment obligations had become a simple commitment to pay MOI on a “rolling or open credit
basis” only as and when Nabgul was able to sell parcels of the rice that had been shipped by
MOI. In my Decision on Jurisdiction dated 24 April 2019, I left this issue to be determined after
the substantive hearing.

26. I am unable to accept Nabgul’s contention. As MOI points out, Nabgul’s reading of the
January 2017 Agreement would contradict the express wording of that document. The
preamble explicitly states that the January 2017 Agreement is a mere “continuation” of the
Amsel and Arinaga Contracts. The January 2017 Agreement thus “pertains to find solutions./
possibilities of selling app. 14,200 MT of White rice lying in Conakry”. There is no express
wording indicating an intention among the parties to vary Nabgul’s existing payment
obligations. On the contrary, the January 2017 Agreement was simply a mechanism for
mitigating the difficult situation in which the parties found themselves. The January 2017
Agreement did not supersede the parties’ respective rights and obligations under the Amsel
and Arinaga Contracts.

B. Issue 2: What (if anything) is the extent of Nabgul’s liability from non-payment of the
rice delivered under the Amsel and Arinaga Contracts?

27. It is apparent from Mr. Khera’s evidence that Nabgul failed to pay the agreed purchase
prices for the rice shipments under the Amsel and Arinaga Contracts. Nabgul is accordingly
liable to compensate MOI in damages for Nabgul’s breach of contract. The pertinent questions
are therefore: (1) for what heads of damage is Nabgul liable and (2) for each relevant head of
damage, what is the quantum for which Nabgul is liable.

28. On 16 September 2019 MOI applied to amend its Statement of Claim. No comments
having been received from Nabgul on MOI's proposed amendments. I allowed the
amendments by an email from me to the parties dated 28 September 2019. Paragraph 77 of
MOI’s Amended Statement of Claim seeks the following relief:
(1) US$1,047,511.72 as the outstanding balance on the unpaid rice.
(2) US$229,290.66 for fees paid to ACE pursuant to the CMA by MOI on Nabgul’s
behalf.
(3) US$138,821.96 for insurance premiums paid by MOI on Nabgul’s behalf to Groupe
Eyssautier and NSIA Assurances.
(4) US$250,000.00 for stevedoring and warehousing fees paid on Nabgul’s behalf by
MOI to GETMA.
(5) US$1,150,902.00 for MOI losses from GETMA’s seizure of rice.
(6) US$949,613.26 to cover the loss incurred by MOI from the sale of rice to SGCG.
(7) Interest.

29. I consider below each head and quantum of damage claimed:

(1) I accept the calculation of US$1,047,511.72 as the unpaid balance on rice released
to Nabgul, but not actually paid as explained by Mr. Khera in his evidence.

10
 (2) I accept that MOI is entitled to a reimbursement of the US$229,290.66 in fees paid
to ACE. By clause 15 of the Amsel and Arinaga Contracts, the costs associated with the
CMA were specifically for Nabgul’s account.

(3) Similarly, under clause 15 of the Amsel and Arinaga Contracts, the payment of
insurance premiums was for Nabgul’s account. Nabgul therefore has to reimburse the
amount of US$138,821.96 paid by MOI.

(4) Pursuant to clause 15 of the Amsel and Arinaga Contracts, Nabgul must also
reimburse the US$250,000.00 for stevedoring and warehousing which MOI paid to
GETMA on Nabgul’s behalf.

(5) I am not satisfied on the evidence that MOI is entitled to claim from Nabgul in this
arbitration the loss of US$1,150,902.00 which MOI incurred as a result of GETMA’s
seizure of rice. Although the evidence on the matter is sparse, I will assume that MOI is
right in saying that other fees in the amount of €586,921.47 were owed by Nabgul to
GETMA. That sum is significantly less than the US$1,150,902 claimed by MOI from
Nabgul in this arbitration as the result of GETMA’s seizure of MOI’s rice. I do not think
that it was reasonably foreseeable at the time of executing the Amsel and Arinaga
Contracts that, as a result of Nabgul owing GETMA an amount of money (whatever that
amount might be), GETMA would illegally seize MOI’s rice. It would be even less
foreseeable that GETMA would seize rice well beyond the value of what was apparently
owed by Nabgul to GETMA. I therefore disallow MOI’s claim for US$1,150,902.00. I add
that it is far from clear to me that this claim is a matter arising out of the Amsel and
Arinaga Contracts and within my jurisdiction under the arbitration agreements in those
contracts.

(6) The claim for loss on the sale of rice to SGCG appears to me to be reasonable. MOI
was seeking by the sale to SGCG to mitigate its loss. I therefore allow the claim for
US$949,613.26.

(7) Under the Amsel and Arinaga Contracts, simple interest at 5% is payable on unpaid
balances for rice shipped. As at 5 October 2019, MOI has calculated such interest at
US$481,207.08. MOI’s calculation of such interest is based on the contract value of the
unpaid rice remaining in storage at the Conakry warehouse from time to time. The
principal amounts that I have allowed in sub-paragraphs (1), (2), (3), (4) and (6) hereof
add up to US$2,615,237.60. Simple interest should accrue on that amount of
US$2,615,237.60 at the same rate of 5% per annum from 6 October 2019 until payment
by Nabgul. In my view, the contractual rate of 5% per annum is reasonable in all the
circumstances. I accept the correctness of MOI’s calculation of the interest due as at 5
October 2019.

C. Issue 3: How should costs be allocated?

30. MOI has substantially prevailed in this arbitration and should be entitled to its
reasonable costs, including the costs of Nabgul’s jurisdictional challenge.

11
31. MOI claims the following costs (excluding the amounts paid or to be paid by way of fees
or deposits to the SIAC dealt with in paragraph 33 below):
(1) Legal costs: S$180,000.00.
(2) Disbursements: S$11,221.59.
(3) Charges in the total amount of S$6,168.55, comprising:
(a) Charge for hearing room at Maxwell Chambers: S$3,472.15
(b) Charge for transcription services: S$2,696.40.

32. I allow the legal costs of S$180,000.00 and disbursements of S$11,221.59 as reasonable.
MOI is also entitled to recover the charges S$6,168.55 for the hearing room at Maxwell
Chambers (S$3,472.15) and transcription services (S$2,696.40). These amounts together
come up to S$197,390.14.

33. As for SIAC’s fees and the Tribunal’s costs of this arbitration, those items (as defined
under Rule 35.2 of the SIAC Rules) have been determined by the Registrar of the Court of
Arbitration of the SIAC as follows:

Arbitrator’s Fees & Expenses S$

Mr Anselmo Reyes
Mr Reyes’ Fees 95,662.07
GST N/A
Sub-total 95,662.07
TOTAL ARBITRATOR’S FEES 95,662.07
SIAC Fees & Expenses
Administration Fee 24,773.16
SIAC Expenses 480.00
GST (7%) 883.86
TOTAL SIAC ADMINISTRATION FEES &
26,137.02
EXPENSES
TOTAL COSTS OF ARBITRATION 121,799.09

34. Nabgul is to bear all such costs of this arbitration in the sum of S$121,799.09 as identified
in the previous paragraph. Further, Nabgul is also to bear the costs incurred by MOI towards
SIAC’s Case Filing Fee in the sum of S$2,140.00. Simple interest of 5.33% per annum is to
accrue on the total of both amounts (i.e., S$123,939.09) from the date of this Final Award until
payment by Nabgul.

35. MOI paid Nabgul’s share of the deposit for this arbitration to SIAC in tranches as follows:
(1) S$39,028.93 on 26 April 2019,
(2) S$39,028.93 on 28 August 2019,
(3) S$13,115.03 on 11 October 2019, and
(4) S$6,399.43 on 11 November 2019.

MOI claims pre-award interest on the aforesaid amounts. However, given that the parties are
jointly and severally liable for the costs of arbitration in accordance with Rule 34.5 of the SIAC
Rules, in my view, these deposits cannot be characterised as a sum awarded by the Tribunal

12
in these proceedings or a sum in issue in these proceedings. I therefore do not think that it
would be appropriate for me to order the payment of pre-award interest on such amounts.

DISPOSITIVE

There will be Orders as follows:

(1) The Respondent is to pay to the Claimant the following amounts:

(a) US$2,615,237.60.
(b) US$481,207.08 to cover interest up to 5 October 2019.
(c) Simple interest from 6 October 2019 on the amount of
US$2,615,237.60 at 5% per annum until payment by the Respondent.
(d) The Claimant’s costs (comprising legal costs, disbursements, hearing
room charges, and transcription fees) in the total amount of S$197,390.14.
(e) Interest on the amount of S$197,390.14 at 5.33% per annum from the
date of this Final Award until payment by the Respondent.

(2) SIAC’s costs of this arbitration and SIAC’s Case Filing Fee in the total sum of
S$123,939.09 shall be borne by the Respondent, together with simple interest of
5.33% per annum accruing thereon from the date of this Final Award until payment
by the Respondent.

[Signature on next page]

13
ANNEX C
:3636464 lxxtw>33{{{2ipmxmkexmsr2wk3cpe}syxw3MIPW3GeywiFssoWievgl3THJWyqqev}2ewt|CxverwMhAJI64644:46c4=8=89HKXisxer

Geywi$Fsso$Wievgl

WYGGIWW>$]syv$wievgl$mw$wyggiwwjypp}$gsqtpixih2
Xverwegxmsr$Vijivirgi$Rs2>$JI64644:46c4=8=89HKXisxer

Wievgl$Gvmxivme

Wievgl$f}$Reqi> QSM$MRXIVREXMSREP$,WMRKETSVI-$TXI2$PXH2

Xverwegxmsr$}iev,w-> 6464

Qshypi,w-$Wievglih> Gmzmp$Gewiw$,Wytviqi$Gsyvx-$1$_SW0$TLE0$Wa
Gmzmp$Gewiw$,Wxexi$Gsyvxw-$1$_HG0$QG0$SWW0$TLEa

Hexi3Xmqi$sj$Wievgl> 461Nyr16464$4=>8=$EQ

Mrmxmep$Jii,w- Jmrep$Jii,w-

GMZMP$GEWIW$,WYTVIQI$GSYVX- GMZMP$GEWIW$,WYTVIQI$GSYVX-

]iev Jii ]iev Viwypxw$Ezempefpi Jii

6464 ($74244 6464 Rs ($54244

GMZMP$GEWIW$,WXEXI$GSYVXW- GMZMP$GEWIW$,WXEXI$GSYVXW-
]iev Jii ]iev Viwypxw$Ezempefpi Jii
6464 ($64244 6464 Rs ($54244

XSXEP$EQSYRX> ($94244 XSXEP$EQSYRX> ($64244

Wievgl$Viwypx,w-

Gewi$X}ti Viwypxw

GMZMP$GEWIW$,WYTVIQI$GSYVX-
Svmkmrexmrk$Wyqqsrw$,SW-0$Svmkmrexmrk$Tixmxmsrw 6464>$Rs$viwypxw$ezempefpi2
,ST-0$Svmkmrexmrk$Qsxmsrw$,SQ-
Svmkmrexmrk$Wyqqsrw$jsv$Tvsxigxmsr$jvsq 6464>$Rs$viwypxw$ezempefpi2
Levewwqirx$Egx$,TLE-
[vmx$Sj$Wyqqsrw$,W- 6464>$Rs$viwypxw$ezempefpi2

GMZMP$GEWIW$,WXEXI$GSYVXW-

Svmkmrexmrk$Wyqqsrw$,SWW-
Svmkmrexmrk$Wyqqsrw$jsv$Tvsxigxmsr$jvsq
Levewwqirx$Egx$,TLE-
[vmx$sj$Wyqqsrw$jsv$Hmwxvmgx$Gsyvx$,HG-
[vmx$sj$Wyqqsrw$jsv$Qekmwxvexi$Gsyvx$,QG-
6464>$Rs$viwypxw$ezempefpi2
6464>$Rs$viwypxw$ezempefpi2
6464>$Rs$viwypxw$ezempefpi2
6464>$Rs$viwypxw$ezempefpi2

HMWGPEMQIV

RSXMGI>

52$Xli$vigsvhw$wievglih$qe}$rsx$fi$i|leywxmzi2

lxxtw>33{{{2ipmxmkexmsr2wk3cpe}syxw3MIPW3GeywiFssoWievgl3THJWyqqev}2ewt|CxverwMhAJI64644:46c4=8=89HKXisxer 536
:3636464 lxxtw>33{{{2ipmxmkexmsr2wk3cpe}syxw3MIPW3GeywiFssoWievgl3THJWyqqev}2ewt|CxverwMhAJI64644:46c4=8=89HKXisxer
62$[lmpwx$viewsrefpi$ijjsvxw$lezi$fiir$qehi$xs$irwyvi$xlex$xli$mrjsvqexmsr$mw$eggyvexi$erh$yt1xs1hexi0$xli$Kszivrqirx0$xli
Wmrketsvi$Egehiq}$sj$Pe{$erh$GvmqwsrPskmg$Txi2$Pxh20$wlepp$rsx$fi$pmefpi$jsv$er}$heqeki$sv$psww$wywxemrih$f}$er}$tevx}0${lixliv
evmwmrk$jvsq$sqmwwmsrw0$vipmergi$ytsr$sv$mrxivtvixexmsr$sj$xli$vitsvx2
72$Xlmw$vitsvx$qe}$srp}$fi$ywih$jsv$xli$tyvtswiw$sj$hyi$hmpmkirgi$erh$zivmjmgexmsr$sj$mrjsvqexmsr$f}$xli$ywiv$erh$er}$ywi$xlex$mw
vipexih$xs$xliwi$tyvtswiw2$Rsx{mxlwxerhmrk$xli$jsviksmrk0$rs$tevx$sj$xlmw$vitsvx$qe}$fi$viwsph0$i|xvegxih0$gsqfmrih${mxl$sxliv
mrjsvqexmsr$sv$gsqtmpih$mrxs$e$hexefewi0$sv$jsv$er}$sxliv$gsqqivgmep$tyvtswi0$yrpiww$i|tviwwp}$tivqmxxih$f}$xli$Kszivrqirx2

lxxtw>33{{{2ipmxmkexmsr2wk3cpe}syxw3MIPW3GeywiFssoWievgl3THJWyqqev}2ewt|CxverwMhAJI64644:46c4=8=89HKXisxer 636