CSAT/8(No.2)

In the matter of

THE ARBITRAL TRIBUNAL

OF THE COMMONWEALTH SECRETARIAT

SUMUKAN LTD

Applicant

AND

THE COMMONWEALTH SECRETARIAT

Respondent

Before the Tribunal constituted bv

Professor Duncan Chappell, President Dame Joan Sawyer, DBE, PC, Member Miss Anesta Weekes QC, Member

JUDGMENT

1. APPLICATION AND PLEAS

1.1 This is an application brought by Sumukan Ltd (the Applicant), alleging a breach of a contract with the Commonwealth Secretariat (the Respondent). The contract in question, signed on 6^th July 2001 with Asset Management Shop Ltd, Sumukan's corporate predecessor, arose in respect of a short-term consultancy with the Respondent, under the auspices of the Commonwealth Fund for Technical Co-operation (CFTC), for services procured on behalf of the Government of Namibia and for their benefit [see I: 001-006]1 The consultancy involved assistance to the Government of Namibia in establishing a group purchasing scheme (GPS) and also creating databases for sources of raw materials and technologies for small and medium enterprises (SMEs) in Namibia. Specifically, the applicant was given an assignment to develop a prototype website to demonstrate the application of technology for a GPS. The duration of the contract was sixteen person weeks over a period of six months. A fee of £15,000 was payable, together with certain subsistence and travel expenses. The location of the contract was specified to be Windhoek, Namibia and the United Kingdom.

1.2 In its initial pleading the Applicant sought the following relief:

"Relief Sought

23. General Damages

(a) For the delayed payment of contractual fees owed to the Applicant and Applicant's staffing costs in recovering payments

(i) Late payment fees of £1500 applied in July 2002.

(ii) Re-imbursement of senior consultants, legal and administrative time

spent in corresponding with the respondent in order to obtain payment of the withheld payments. The applicants costs in terms of senior management and legal advisors time spent up to January 2003 in resolving outstanding payments is estimated at £34,200.

(b) For the Respondent's breach of contract in undermining the basis of the initial contract:

Reimbursement of expenses incurred on the basis of the contract

[References throughout this judgment are to the agreed bundles of documents provided by the parties].

(i) Web site hosting charges of £80,400 incurred over a period of 17

months

(ii) Software development expenses of £85,000 (estimated at $150 000 in email12/July/02)

(c) For the Respondent's slander and neqliqent misrepresentations made aqainst the Applicant's causinq financial loss and damaqe to reputation"

The applicant seeks compensation for reputational and business damages

incurred due to the misrepresentation made above to be assessed by the Tribunal.

Reputational damage lead to:

"a. The loss of £250,000 which is the value of phase 1 of a tender project with the University of Warwick which the applicant lost due to bad references being provided by Mr Ram Venuprasad

b. The loss of estimated value of £500,000 which is the value of the remaining phases of the tender project lost above.

c. Value of other business with the consortium partner in the tender project (PTC) lost due to the bad reference mentioned above.

24. Declaration

That the ownership of software and website and all intellectual property rights therein belong to the Applicant;

25. Specific Performance:

That the Respondent returns the copyright materials belonging to the Applicant.

That the Respondent provides an official reference from the respondent addressed "To whom it may concern", confirming that the Applicant has satisfactorily completed it's obligations under the contract and that this reference is substantively the same as the official reference provided by Mr Ravichandira Rao to Mr Ian Loftus in December 2002.

Any other remedy as the Tribunal shall see fit." [A:0-11]

1.3 In supplementary pleadings the Applicant sought additional relief in the following terms:

"Additional Relief Souqht

For The Secretariat's Wronqful Claim of Ownership Of Web Site, Software & Intellectual Property

At the time of drafting the initial application the applicant's representatives were not aware the Secretariat would refuse to return the applicant's materials or that it would continue right up to the present day to dispute the declaration of ownership sought.

The Secretariat has refused to return the applicant's materials and property over 2.5 years on the basis that it believes it owns the software and material related to it, as well as the related intellectual property rights. By claiming ownership of the software and intellectual property, and disputing the applicant's right to license these as originally agreed, the Secretariat has also prevented the applicant earning commercial revenues through licensing of software which rightfully belongs to the applicant.

Given the applicant's position that the Secretariat has at no point purchas!3d or otherwise paid for these, the applicant requests an order by the tribunal that the Secretariat either:

(i) pay the full commercial price of the web site and all related software and purchase it or alternatively

(ii) pay for three and a half years use or license of it and return all the applicant's materials and property promptly. The number of years to be calculated from December 2001 (the termination date of the applicant's contract) to the date of the tribunal hearing/order.

For The Stress Caused By The Secretariat's Unreasonable Delay And Evasiveness in Resolvinq The Dispute

Sumukan seeks an order for compensation for the enormous amounts of stress and damage to health caused to Ms Jananayagam, (the firm's representative in the contract and its proprietor) by the Secretariat's unreasonable delay and evasiveness in resolving the matter prior to its being brought to tribunal and by the untruthful and reckless claims made by the Secretariat and in particular the predatory claim on the firm's primary asset, its software and intellectual property.

The Secretariat could at any point have readily verified the intent of the parties that agreed to the contract, the true ownership of the web site and underlying marketplace software prio to the matter being brought to tribunal by consulting its representative and Deputy Director who was responsible for the contract negotiations with Sumukan and for subsequent liaison on the consultancy assignment. This person has confirmed that he was not consulted by the Secretariat's legal department or by any other colleague involved in the preparation of the Secretariat's defense statement." [A:59 - 60]

1.4 The Tribunal's jurisdiction to consider this matter is to be found in Article II 1.c of the Statute of the Arbitral Tribunal of the Commonwealth Secretariat (the Statute). This Article provides, in part, that the Tribunal shall hear and pass judgment upon any Application brought by any person who enters into a contract in writing with the Commonwealth Secretariat which alleges the non-observance of the contract.

1.5 In a separate ruling made in November 2003, the Tribunal determined that the Application also complied with Article II 2 of the Statute [CCSAT/B. Ruling of the Arbitral Tribunal of the Commonwealth Secretariat. 25 November 2003]. The Tribunal subsequently determined that it would also grant an Application for an oral hearing of the matter. Prior to that hearing, which took place in London on 8, 9, 10 and 11 February 2005, the Applicant withdrew its claim for general damages relating to negligent misrepresentation and slander. At the hearing the applicant also withdrew its claim for compensation for stress, and its claim for the return of copyright materials belonging to the Applicant.

1.6 At the hearing the Tribunal had regard to the agreed bundle of documents submitted by the parties. The Tribunal ruled that it would not consider certain documents filed on behalf of the Applicant in the week preceding the hearing [see Volume 3 (continued)] nor a witness statement of Balaji Raghavan. Apart from the late filing of these documents the Tribunal was of the view that they, together with the witness statement, related primarily to issues associated with quantum rather than liability. These documents could be considered at a later point should the Tribunal find liability for breach of contract.

1.7 The Tribunal received oral testimony from the following witnesses:

Ms Jan Jananayagam

Mr Krishnasamy Vijayakumar Mr B J Ravichandhira Rao Mr Ram Venuprasad

Mr George Saibel

Mr Balaji Raghavan

2. THE ISSUES

2.1 The Tribunal will deal with the following issues:

• Contract and ownership of software, website and all intellectual property therein. 
• Damages claim for breach of contract in undermining basis of initial contract 
• Damages claim for delayed payment of contractual fees and related costs of recovery
• Other redress sought: 
• Costs

3.  THE CONTRACT AND OWNERSHIP OF THE WEBSITE

The applicable law

3.1  Article XIV of the Tribunal's Statute gives guidance as to the law which is to be applied by the Tribunal. Article XIV states: 

"1  In dealing with all cases before it relating to contracts of service, the
Tribunal shall be bound by the principles of international administrative law which shall apply to the exclusion of the national laws of individual member countries.

2  For the purposes of this Article, contracts with Applicants referred to in Article 11.4(a)(v) and 11.4(a)(vi) shall be treated as contracts of service.

3  In all other cases, the Tribunal shall apply the law specified in the contract. Failing that, it shall apply the law most closely connected with the contract in question." [Statute: Article XIV] 

3.2  The provisions of the contract entered into between the parties will be reviewed in detail shortly. However, at this stage, it is relevant that the contract was for a short-term consultancy involving the provision of services by the consultant company, then known as Asset Management Shop Limited, and its employees including Ms Jan Jananayagam [see 1 :1-3 and in particular Clause 11]. Under the Standard Terms and Conditions for Short-Term Consultancies, which formed a part of the contract, the term "Consultant" is used

"to refer to both an individual contracted directly by the Secretariat as well as to a company which contracts with the Secretariat to provide the services of its employees/consultants and to the employees of that company". [1 :005]

3.3  As a contract for services, rather than a contract of service, it is Article XIV 3 which is relevant to this matter. The contract entered into between the parties does not specify the law that shall apply to it. Failing this specification it is for the Tribunal to "apply the law most closely connected with the contract in question", On this issue the parties were• in agreement that this was United Kingdom law.

3.4  It should also be mentioned at this juncture that the contract contains a specific provision relating to the referral of disputes between the parties to the Tribunal. Clause 9 of the contract reads as follows:

"The Secretariat and the Consultant shall endeavour to settle by negotiation and agreement any dispute which arises in connection with this contract. Failing such agreement the dispute should be referred to the Commonwealth Secretariat Arbitral Tribunal for settlement by arbitration in accordance with its Statute which forms part of this contract and is available on request" [1 :003].

Interpretation of relevant contractual clauses:

3.5  In the course of both their written pleadings and oral submissions the parties referred to Chittv on Contracts as an authoritative text dealing with the law of contracts in the United Kingdom. The Tribunal has also had regard to this text (the 29th edition published in 2004) as well as to a number of the leading legal authorities dealing with issues of relevance to this matter. A central issue, as will be seen below, is the approach which the Tribunal should take to the interpretation of the contractual documents in this case. The preferred approach is that set out in the following general remarks about the principles by which contractual documents are to be construed, stated by Lord Hoffmann in Investors Compensation Scheme Limited v the West Bromwich Building Society and others [1998] 1WLR 896 at 912-913.

"I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 W.L.R 1381, 1384-1386 and Rearden Smith Line Ltd. V Yngvar Hansen¬Tangen [1976] 1 W.L.R 989, is always sufficiently appreciated. The result has been subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles may be summarised as follows.
(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declaration of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Ltd. V Eagle Star Life Assurance Co. Ltd [1997] A.C. 749.

(5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Campania Naviera S.A. v Salen Rederierna A.B [1985] A.C. 191, 201:
"if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense".
3.6  It is clear from both the pleadings in the present matter, and from the
evidence led at the hearing, that the parties are at odds about the construction of the contract entered into between them on 6 July 2001. A core disagreement which exists between them concerns the ownership of a "prototype website" produced under the terms of the contract. In order to understand the nature of this dispute, and to seek a resolution of it through a construction of the contractual documents, It is necessary to consider the "admissible background" in the manner referred to by Lord Hoffmann.
 

The "Matrix of Fact"

3.7  The genesis of the contract entered into between the parties is to be found in a project (the Namibia project) involving the provision of technical assistance by the Commonwealth Secretariat, through its Export and Industrial Development Division (EIDD) to the Government of Namibia (GN). This project was under the management of Mr 8 J Ravichandhira Rao, Chief Programme Officer in EIDD [see 8:48-49]. To
further the work on the project, three consultants were engaged in July 2000 - Mr Lome Dyke; Dr Nadadur Janardhanan; and Mrs Rachna Gupta. [B:49 at para. 8].

3.8  The broad objective of the Namibia project proposed by EIDD to GN can be found in the following statement:

"The project takes into account the major problem that of identifying sources of raw materials and technology that will change the manufacturing competitiveness of industries in Namibia. The project thus lends itself to aggregating the raw material requirements of more than 278 establishments and consolidating their requirements into common raw materials that can be ordered in economic quantities .... As the number of establishments are quite large and the sources are also likely to exceed the number of establishments, a data base approach will not only enable quick solution but also create a base that will prove suitable to other SMEs in the Commonwealth. The medium of access to the databases playa crucial role in that the access needs to be quick and least expensive. EIDD's project, the Commonwealth Business Network (COMBINET), with its development objective not withstanding its private sector role, lends itself ideally to the needs. Providing access to the sources through COMBINET can create a dynamic environment that will not only solve the problems of raw material and technologies but also enable business development through increased market access." [1: 112]
 
3.9  The three consultants commenced work on the project under Mr Rao's
supervision. A crucial part of the project work, preparing a database of Namibian
enterprises to form the online group purchasing scheme, was Ms Gupta's responsibility. After making a field visit to Namibia and submitting a draft report on these databases, Ms Gupta then decided that she did not wish to continue work on the project. This resulted in a delay. [B:49, at para. 8]

3.10  In about March 2001, the GN wrote the Commonwealth Secretariat expressing concern about delay with the project. At about the same time, Mr Rao was promoted from his position in EIDD to that of Deputy Director in the Science and Technology Division (STD) of the Commonwealth Secretariat. Despite this promotion Mr Rao continued to have responsibility for managing the Namibia project from his new Division because no other members of staff were available to deal with the project. This arrangement had the support of Mr Rao's Director in the EIDD, Mr Richard Gold. [B:49 at paras 4 and 10)]

3.11  Following Ms Gupta's departure from the project, Mr Rao began to search for a new consultant who could assist with the development of an online group purchasing scheme for the Namibia project. A broad description of this project had already been provided in a report prepared by one of the consultants, Dr Janardhanan. [see 1 :95-97]
In Dr Janardhanan's view, the feasibility of an online project needed to be explored through a pilot study which could be conducted using standard rather than custom made software. Dr Janardhanan estimated that if the software chosen was appropriate

"the total cost for the pilot, which will prove feasibility of the wider GPS scheme should be in the order of GBP £100,000" [see 1 :97]

3.12  Mr Rao did not have a budget which in any way approached that suggested by Dr Janardhanan. Accordingly, he set out to identify a consultant who could undertake work on the Namibia project within a small budget and within a narrow timeframe. The person he eventually identified was Ms Jan Jananayagam of Asset Management Shop, now known as Sumukan Limited. Mr Rao, who had previously met Ms Jananayagam in a personal capacity, was aware of two of the Applicant's recent projects - Smallfolk.com which was created for Great Ormond Street Hospital, and Spotcomex which was an E market place [8:49-50, para.11-12]. Mr Rao knew that the Applicant had access to software programmes associated with these projects and he formed the view that they had the ability to complete the project in the time required. Accordingly, he approached the Applicant and asked it to submit a proposal for an online group purchasing scheme. At the time of this request Mr Rao provided the Applicant with documentation relating to the Namibia project, including the Consultant Report submitted by Dr Janardhanan.

3.13  Negotiations then took place between Mr Rao and Ms Jananayagam in regard to the project, including the fee to be paid and the nature of the work to be performed. Each of the parties expressed their subjective views about the jmplication..of these negotiations upon the subsequent terms of the contract. The Tribunal concludes that these negotiations and expressions of intent are not part of the admissible background which should be now considered in construing the meaning of the ultimate contractual documents. It is, however, relevant that the Applicant presented a proposal on 7 May 2001 to the Respondent in regard to its participation in the proposed project. [see 1 :007¬015]. The proposal was titled the "COM8INETGPS Namibia Prototype. Scope, definition and prototype specification". The author of this proposal was Ms Jananayagam.

3.14  In both her written statement and in her oral testimony, Ms Jananayagam described her introduction to Mr Rao and her discussions with Mr Rao about becoming involved in the Namibia project. In April 2001 she provided Mr Rao with a demonstration of the Spotcomex website that had been produced by Asset Management Shop Limited. Spotcomex was seen as a good fit as it was a digital market place designed specifically for African commodity markets. [8:6-7] On about 24 April 2001, Ms Jananayagam said that Mr Rao asked the Applicant to submit a proposal based on the documentation with  which she had been provided. [1:98-109; B: 7, para. 22]  This proposal was sent, as already noted, on 7 May 2001, and resent on 14 June 2001.

3.15  The Terms of Reference were also the subject of discussion between Mr Rao and Ms Jananayagam. Ms Jananayagam said that on 27 June 2001 she was sent a formal letter of appointment in respect of a short-term consultancy for the project. This letter was sent on behalf of the Respondent by Mr Winston Cox, Deputy Secretary-General. Ms Jananayagam signed the letter on 6 July 2001 in her role as the Managing Director of the Applicant. [1 :003].

Ownership of the website

3.16  With this background information, which was available to the parties at the time of their entering into the contract, attention is now turned to the ascertainment of the meaning which the contract document would convey to a reasonable person in possession of this "matrix of fact". The dominant dispute between the parties relates to their conflicting understanding of what the contract has to say about ownership of a prototype website created during the course of the short-term consultancy. The prototype website is referred to in the Terms of Reference, which comprise Annex 1 of the Short- Term Consultancy Agreement. The Terms of Reference read as follows:
 "1.  The Asset Management Shop Ltd will create a prototype website with
functionality specified in their proposal for the purpose of demonstration.

2. The website owned by AMS will be built using underlying software components such as the Conjunct Market Place server which is proprietary to the Asset Management Shop Ltd. This website will be linked to the COMBINETGPS domain name.

3. Prepare suitable data based on raw materials and technology for use on PCs and on the Internet as an add on feature to COMBINETGPS

4. Prepare an on-line Group Purchase Scheme incorporating necessary forms, checks and balances and with necessary linkages to sources of technology and raw materials.
5. Advise ona communication strategy for linking the manufacturing sector using computers and COMBINETGPS taking into account the geographical features of Namibia and the present communication infrastructure.
6. Conduct workshops at places in Namibia advised by the COMSEC to train the staff from the manufacturing sector in the access and use of databases and group purchasing scheme.
7. Advise Micro & Small Enterprises on recent advances on the Internet with specific reference to Trade and Business related networks and suggest
methodology for conducting business on the Internet.
 8.  Prepare a report jointly with other experts.

Common to all

Attend meetings jointly with other specialists and consolidate recommendations to achieve synergistic results.

Assist in the preparation of final report by giving full details of work carried out and the recommendatibns made in the area of expertise concerned." [1 :004]

3.17  It will be observed that the Terms of Reference refer in Clause 1 to a website
functionality specified in the Applicant's proposal. The proposal referred to is the one submitted initially on 7 May 2001. [1 :007-015]. A further reference is made to this proposal in the following terms at the outset of the formal letter sent by Deputy Secretary-
General Cox on 27 June 2001:

"Assignment
Modus operandi

"As detailed in your proposal of 7 May 2001". [1 :001]

3.18  In the proposal itself, the objective of the project is discussed in Clause 1. Mention is made of the prototyping of a model site that demonstrates the potential behind the concept of Combinet GPS. It is further stated that

"the model site will be created, hosted and owned by the Asset Management Shop Limited (AMS). Should the Government of Namibia wish to proceed further with the project, and build a fully functional website, it may enter into a separate licensing and software development agreement with AMS." [1 :009, Clause 1]

3.19  In a separate part of the proposal, titled Contract Terms, it is further stated as a governing term that:

"1  The Asset Management Shop Limited will create a prototype with the functionality specified in Section 3 for the purpose of demonstration only. All intellectual property rights to the prototype will remain with the AMS.
2. The website will be built using underlying software components such as the Conjunct Market Place server which are proprietary to the Asset Management Shop Limited.
3. Payment and delivery terms are specified on the letter of appointment." [1 :0014-015]

3.20  It is the contention of the Applicant, based upon the provisions of the proposal which have just been outlined, together with the very modest fee paid for the consultancy services provided by the Applicant, that the prototype website created under the provisions of the contract is hosted and owned by the Applicant, and that all intellectual property rights to this prototype website remain vested in the Applicant. It is also contended that this prototype website has been built using underlying software components, such as the Conjunct Market Place server, which are proprietary to the Applicant. The Applicant further contends, or in the alternative, that a true and proper interpretation of the contract documents leads to the same conclusion. The Applicant also submits that through the period during which it carried out its activities upon the instructions of the project manager, Mr Rao, there was never any suggestion to the contrary by anyone at the Commonwealth Secretariat.  [Outline final submissions on behalf of the Applicant: 3].

3.21  It is the Respondent's contention that under the express terms of the contract, and particularly Clause 3 of Annex 2 [Standard Terms and Conditions of Service for Short- Term Consultancy] the title rights and copyright in any material, including the prototype website, produced under the provisions of the consultancy, vest exclusively in the Respondent. Clause 3 of the Standard Terms and Conditions states the following:

"The title rights, copyrights and all other rights of whatsoever nature in any material produced under the provisions of this assignment which do not otherwise vest in any receiving government/organization, shall be vested exclusively in the Secretariat and the Consultant shall seek the approval of the Secretariat for any publication which the Consultant may wish to undertake, if it relates in any way to such material." [1 :005]

The Standard Terms and Conditions also contain the following preliminary statement:

"The Secretariat commissions a variety of short-term assignments. Some involve little or no travel (for example, conducting a piece of research and/or writing papers), while others will require the consultant to travel from his/her place of residence to another country or countries to carry out the terms of the contract. For this reason, the standard terms below are divided into two sections. The "general" section applies to all contracts, while the second section will only apply if the accompanying letter indicates a requirement to travel." [1 :005]

3.22  The Respondent submitted that the assignment output was a prototype website for which payment had been made to the Applicant, under the provisions of the contract, of £15,000. Although the underlying software was provided by the Applicant, the Applicant acknowledged by its signing of the contract that the title rights, copyrights and all other rights of the product produced under the assignment vested exclusively with the Respondent, as it was not otherwise vested in any receiving government/organization. There was therefore an implied assignment of the Applicant's rights in the underlying software to the Respondent who also owned the website's  address http://www.combinetgps.com/ [precis of submissions for the Respondent: 3-4].

3.23  The "rule" that words should be given their "natural and ordinary meaning", in the situation which has just been described is of little immediate assistance in reaching a conclusion about which party is correct in its assertion of ownership over the prototype website. Specifically, the express term of the Standard Terms and Conditions applicable to all short-term consultancy appears in direct conflict with the provisions of the proposal referred to in the contract. From the stated background it cannot be concluded that this was intended by the parties and something must have gone wrong with the language. What is now required is a search for the intention of the parties which, in the words of Lord Diplock in Antaios Campania Naviera S:A. v Salen Rederierna A.B.[1985] A C 191 at 201 "must be made to yield to business commonsense".

3.24  The Tribunal concludes the problem has arisen as a result of a poorly drafted reference to the proposal in the context of the "modus operandi" of the project, as well as in Clause 2 of the Terms of Reference which make mention of "the website owned by AMS". The reference to the "modus operandi" contained in the proposal is in fact to the method of operation, as this term is commonly understood and used, that is to the way in which it is intended to give effect to the agreement, rather than to its objectives and contractual terms. Thus a review of the proposal shows that it is in Part II, titled Industry Sectors and Structure, and Part III, titled Deliverable Functionality, that reference is made to matters associated with the modus operandi of the project. These are not matters which are set out elsewhere in any detail in the contractual documents. On the other hand, the objective of the Namibia project, and also the expressed terms of the contract, are delineated in the formal letter and its annexes.

3.25  It is also clear when reviewing the sections in the proposal titled Objective and Contract Terms, that they detail prospective issues associated with the project, including the development of a fully functional website with separate licensing, software and other developmental agreements entered into with other entities. In contrast, the Short-Term Consultancy Agreement is for a very specific and finite period - sixteen person weeks over a period of six months. [1 :001]

3.26  In regard to the drafting of Clause 2 of the Terms of Reference, the Tribunal concludes that this is a poorly phrased provision which recognizes that when constructing the prototype website referred to in Clause 1, it will be necessary to utilize underlying software components which are owned by the Applicant. However, these Terms of Reference still remain subject to the general provisions of Clause 3 of the Standard Terms and Conditions. The Tribunal does not accept a contention made on behalf of the Applicant that this clause should be read to apply solely to documentary material. It applies to "any material produced under the provisions of this assignment which do not otherwise vest in any receiving government/organization". Nor does the Tribunal accept that because the Respondent took no action to assert its ownership of the prototype website until at earliest May 2002, this affected the situation. If the Respondent owned the website it did so, under the provisions of the contract, from the moment that the prototype was established. The time of this establishment was certainly by the date of the "launch" of the website performed at the workshops in Namibia in August 2001. [See B:16 –
17]].

Claims for relief

3.27  As noted earlier, among the principal heads of relief sought by the Applicant is a claim for a declaration "that the ownership of software and website and all intellectual property rights therein belong to the Applicant" [See A" 1 0]

3.28  During the course of oral submissions made by the parties at the conclusion of the hearing the Tribunal sought clarification as to the interpretation to be given to the phrase "intellectual property rights". Counsel for the Applicant agreed that no list existed of these rights. Counsel for the Applicant also submitted, initially, that all of the intellectual property to which the Applicant laid claim was in the website, http://www.combinetgps.com/. The website belonged to the Applicant, and everything encapsulated within it.

3.29  Questioned further about this issue Counsel for the Applicant modified this contention agreeing that publicly available information which appeared on the website, such as names and addresses of people, did not form a part of the intellectual property rights claimed by the Applicant. What did form part of these rights, and was owned by the Applicant, was data which had been formatted and processed in order to be displayed on the website. It was the formatting process which created the intellectual property rights.

3.30  The development of the software and other elements of the prototype website is discussed in detail later in the judgment under the head "Other Redress Sought". The Tribunal does not find it necessary to make a definitive ruling in regard to the individual intellectual property rights which were created as a part of this process. For the reasons already provided above the Tribunal concludes that the collective ownership of the software and website and all intellectual property rights therein belong not to the Applicant but to the Respondent. As such the relief claimed by the Applicant in the form of a declaration is denied. Also denied is the additional relief sought by the Applicant for the Respondent's wrongful claim of ownership of the website, software and intellectual property. This claim of ownership was not wrongful but based on a correct interpretation of the terms of the contract.