In the matter of

Abu Dhabi Commercial Conciliation & Arbitration Center

Target Engineering Construction Co. LLC

And

Don Rite Engineering Enterprises LLC

Respondent’s Memorandum on Expert’s Meeting Dated February 2nd, 2023

Abu Dhabi, on February 15th, 2023

UAE - ABU DHABI - HAMDAN STREET - BUSINESS CENTER BUILDING - OFFICE 102 - P.O.BOX 934

TEL. +971 2 4410031 - WhatsApp +971 50 8999 779 - ABUDHABI@EPTALEX.COM - WWW.EPTALEX.COM

1. Reiteration of Preceding Submissions ............................................................................................... 3

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 1. Reiteration of Preceding Submissions

1.1 The Respondent reiterates and maintains its position as detailed in its submissions and
documents provided to the expert on January 5th, 2023, January 13th, 2023 and February 1st, 2023,
including the following:

- The Respondent’s Response to the Claimant’s Request for Arbitration of August 11th,
2022;
- The Respondent’s Statement of Defense of October 31st, 2022;
- The Respondent’s Rejoinder to the Claimant’s Rejoinder of November 7th, 2022;
- The Respondent’s Summary of Defense to Expert Mr. Ahmed Ali Al Hosani on February
1st, 2023.

All arguments and defenses argued and detailed in the submissions above, as well as all the
supporting documents, form part of the Respondent’s defense and this memorandum, to be viewed
together when reviewing the Respondent’s position.

2. Summary of Meeting

2.1 On February 2nd, 2023, representatives of the Respondent and the Claimant attended an
Expert’s Meeting held online via Google Meets. Upon its conclusion, the parties were invited to
submit a final memorandum to the expert on Wednesday, 15th February 2023.

2.2 In the course of the Meeting, Mr. Ahmed Al Hosani (the “Expert”) introduced himself
and his area of expertise – that being accounting and audit – not engineering. Due to the Expert’s
knowledge on the subject matter at hand, the Respondent reiterated the power of the Expert to
reject and dismiss the Claimant’s claims in full, disregard the statement of account put forth by the
Claimant, and adopt the accurate version of the statement of account presented by the Respondent.
In support of the foregoing, the Respondent reiterated and emphasized the following:

i. The failure by the Claimant to submit the Professional Indemnity Insurance, as required by
Article 14.10 of the Sub-contract, and the clear reference in Article 14.10 that “no payment
to the Subcontractor will be released prior to the submission of copies of insurance policies.”
Furthermore, Annexure 1 of the Sub-contract mentions, under Section 5.04, the obligation
by the Claimant to provide a Professional Indemnity Insurance for “AED 1M and with a run
off of 10 years from the date of the Performance Certificate by the Employer.” To date, no
evidence of such Professional Indemnity Insurance has been presented by the Claimant
despite the latter’s false allegations during the expertise Meeting.

ii. The Sub-contract is back-to-back with the Contract (defined under the Sub-contract as the
agreement between the Employer and the Respondent). As such, no release can be made to

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 the Claimant prior to the same being released by the Employer. To date, no such release has
taken place.

iii. The Claimant falsely alleges that an Amendment No. 2 to the Order Confirmation was
executed by the Claimant. The Respondent thus reminded the attendees that the alleged
amendment No. 2 was simply not signed and, therefore, not executed. The document should
therefore be unequivocally disregarded due to its legal and procedural irrelevance.
Furthermore, the question of the alleged legality of Amendment No. 2 to the Order
Confirmation, which the Respondent categorically rejects, lies beyond the scope of the
expert’s mission or powers as this matter is a purely legal matter that should be left to
the Tribunal beyond the scope or expertise of the esteemed Expert, and, in any case,
should be left to be decided in the merits stage, if at all, as this document was only
exchanged during failed negotiations between the parties and was not approved or
agreed upon by the Respondent. The Respondent also emphasized that the Expert cannot
accurately decide on the facts at hand by basing his decision on a document with, at best,
doubtful legality and which, for this reason too, should be disregarded.

iv. Additionally, the Respondent emphasized the clear prerequisite of the TOC being issued
prior to the release of any retentions or security cheque, as is evidenced in the Sub-contract
in clear terms. As the esteemed Expert sought to make clear to the parties in attendance when
requesting clarifications as to which party is responsible for the issuance of the TOC, the
Respondent reiterated that the TOC is to be issued by the engineer, and not the Respondent.
To date, the TOC has not been issued and, the security cheque in the Respondent’s
possession, cannot therefore be released.

2.3 Regarding the statement of account, as pertains to the esteemed Expert’s area of expertise,
the Respondent reiterated that the Claimant’s version of the statement of account posed
divergences with the Respondent’s version, which was submitted to the Expert on January 5th,
2023, in confirmation of its payment to the Claimant via cheque, showing a balance of 0 (zero).
However:

i. We wish to clarify that, up until February 17th, 2020, the Respondent and the Claimant are
in agreement as to the accuracy of the final certified amount, as shown in Payment Certificate
6 and submitted to the Expert on January 5th, 2023, amounting to a total of AED
1,637,302.66.

ii. However, we reiterate that the subsequent entries shown on the Claimant’s statement of
account as of February 17th, 2020, starting on April 15th, 2021 reading as “Final Settlement
Installment 1 of 15”, ending on “Final Settlement Installment 15 of 15”, for a total of AED
2,250,000 +VAT are to be dismissed by the Expert. As had been numerously noted in
previous submissions to the courts, the Respondent noted and emphasized that any reference
to “Final Settlement” is a reference to Amendment No. 2 that the Claimant attempts to
include in this arbitration, but that, as explained above, is null and void, due to said document
not being executed between the Parties. Additionally, to date, the Claimant has failed to

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 provide a signed copy of Amendment No. 2 that it has intended to rely on. As such, these
series of entries should be disregarded.

It has become evident from the above, that for the expert to be able to properly reconcile the
accounts between the Parties, and determine the final amounts due to any of them, the expert
will need to look into and examine a major legal matter (the issue of validity of Amendment
No. 2), as well as major technical matters (the back to back nature of the subcontract with
the main contract, as well as the issuance of the TOC as a pre-requisite for the release of any
amounts to the Claimant). As such, the expert is unable, alone, to make a final determination
on this matter given the nature of the arguments presented by either Party that are beyond
the expert’s mission or expertise. Because of that, we had sought, on numerous occasions,
from the Tribunal, the appointment of an engineering expert to work alongside Mr. Hosani,
but our request has remained unanswered by the Tribunal despite our many follow ups.
Therefore, we ask the expert to either (i) refrain from making a final determination on the
basis of the important elements that the expert is unable to examine and decide on given their
nature, or (ii) to seek from the Tribunal the appointment of an engineering expert to assist
with the mission.

3. Relief sought

3.1 Based on all the above, and the Respondent’s submission to the Arbitral Tribunal and to
the Expert, and of what will be submitted by the Respondent at a later stage in the course of the
proceedings at hand:

The Respondent requests from the esteemed Expert to reject and dismiss the Claimant’s
claims in full, and to disregard the Claimant’s statement of account and adopt the
Respondent’s statement of account.
Or, alternatively, either (i) refrain from making a final determination on the basis of the
important elements that the expert is unable to examine and decide on given their nature, or
(ii) seek from the Tribunal the appointment of an engineering expert to assist with the
mission before a final determination is made.

The Respondent hereby reiterates its request to the Arbitral Tribunal:

1) To accept all of the Respondent’s submissions since they were submitted within the
deadline specified by the Arbitral Tribunal.
2) On the merits, to:
(a) Reject the present arbitration proceedings as to the merits.
(b) Reject the Joinder application submitted by the Claimant for lack of substantiation and
for violation by said request of the governing laws.
(c) Reject the Claimant’s precautionary attachment.

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 3) That all arbitration costs incurred, whether administrative fees or the fees and expenses of
the Arbitral Tribunal, and all legal costs of the Respondent, including the fees and expenses
of its legal representatives, be borne by the Claimant.

Reserving any and all the Respondent’s rights to submit additional memos and documents, and its
right to a counterclaim and to recover any cost or loss suffered as a result of the Claimant’s actions.

Sincerely yours,

For and on behalf of the Respondent

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