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@richard & Taz
It appears Brawn phoned Whiting to ask if 2013 cars could be used for Pirelli testing. Whiting, on advice from the FIA legal eagles, said it would be ok subject to Pirelli inviting all the other teams to test and to demonstrate it had done so and that this was not binding. They then went ahead with the testing without getting back to Whiting or speaking to the other teams.
Key words are "subject to Pirelli inviting all the other teams to test and to demonstrate it had done so"
It was Pirelli who didn't invite the other teams, not Mercedes and if they falsely told Merc that they had, Merc could possibly wriggle out. However, if Merc knew the other teams had not been invited they are bang to rights.