Accendo v. Deutsche Mexico Holdings et. al., Order, 14 Oct 2019

1.1.

The Applicant in these proceedings is Accendo Banco, S.A., Institución de Banca Múltiple:

Avenida Paseo de la Reforma No. 243, Floor 12
Colonia Cuauhtémoc, Alcaldía Cuauhtémoc Mexico City 06500, Mexico
The Applicant is a company incorporated under the laws of Mexico.

1.2.

The Applicant is represented by:

Mr. Juan P. Morillo
Mr. Philippe Pinsolle
Mr. David M. Orta
Mr. Daniel Pulecio-Boek
Mr. Lucas Loviscek
Quinn Emanuel Urquhart & Sullivan, LLP
1300 I Street, NW, Suite 900
Washington, DC 20005, USA
Tel. +1 202 538 8000
Fax +1 202 538 8100
Email: juanmorillo@quinnemanuel.com
philippepinsolle@quinnemanuel.com
davidorta@quinnemanuel.com
danielpulecioboek@quinnemanuel.com
lucasloviscek@quinnemanuel. com

1.3.

Responding Party 1 in these proceedings is Deutsche Mexico Holdings, S.à.r.L.:

14 rue Edward Steichen
2540 Luxembourg, Grand-Duchy of Luxembourg

Responding Party 1 is a company incorporated under the laws of Luxembourg.

1.4.

Responding Party 2 in these proceedings is Süddeutsche Vermögensverwaltung, GmbH:

Taunusanlage 12
Frankfurt Am Main 60325, Germany

Responding Party 2 is a company incorporated under the laws of Germany.

1.5.

Responding Party 3 in these proceedings is Deutsche Bank Aktiengesellschaft, Cayman Islands Branch:

c/o Cainvest and Trust Limited
5th Floor
Harbour Place
103 South Church Street
PO Box 1353
George Town
Grand Cayman KY1 1108, Cayman Islands

Responding Party 3 is a company incorporated under the laws of Germany.

1.6.

Together, Responding Parties 1, 2 and 3 are referred to as the "Responding Parties".

1.7.

The Responding Parties are represented by:

Mr. Jonathan K. Youngwood
Ms. Susannah S. Geltman
Mr. Robert H. Arnay
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017, USA
Tel. +1 212 455 2000
Fax +1 212 455 2502
Email: jyoungwood@stblaw.com
sgeltman@stblaw.com
robert.arnay@stblaw.com

The emergency arbitrator in these proceedings is Ms. Jennifer Kirby:

Kirby
68 rue du Faubourg Saint-Honoré
75008 Paris, France
Tel. +33 1 42 74 64 55
Fax +33 1 73 79 28 55
Email: jennifer.kirby@ kirbyarbitration.com

The Counsel in charge of this file at the Secretariat of the Court is Mr. Marek Krasula:

ICC INTERNATIONAL COURT OF ARBITRATION
140 East 45th Street, Suite 14C
New York, NY 10017, USA
Tel. +1 646 699 5704
Fax +1 646 737 9467
Email: ica9@iccwbo.org

4.1.

The Applicant's Application for Emergency Measures dated 26 September 2019 ("Application") relates to a Purchase Agreement dated 26 October 2016 that was signed by the Applicant (which was formerly known as InvestaBank S.A., Institución de Banca Múltiple ("InvestaBank")) and the Responding Parties ("Purchase Agreement" or "SPA").

4.2.

The Purchase Agreement appears in the record as Exhibit C1.¹ It has been amended twice. First Amendment to Purchase Agreement, 20 Oct. 2017 ("First Amendment"), Ex. R4; Second Amendment to Purchase Agreement, 8 Mar. 2018 ("Second Amendment"), Ex. C7.

4.3.

Under the Purchase Agreement, Responding Parties 1 and 2 agreed to sell to the Applicant all of their shares in two Mexican companies - a bank, Deutsche Bank México, S.A., Institución de Banca Múltiple ("DB Mexico"), and a broker-dealer, Deutsche Securities, S.A. de C.V., Casa de Bolsa ("DB Broker") - with Responding Party 3 acting as the sellers' guarantor. SPA, Ex. C1, at 1 and Exhibits A-1 and A-2.

4.4.

The sale contemplated under the Purchase Agreement did not close as planned and the parties are now in dispute.

4.5.

Section 10.4 of the Purchase Agreement provides as follows:

Section 10.4 Jurisdiction, Service of Process and Waiver of Jury Trial. Subject to Section 2.2(c), Section 2.7 and Section 6.20, any dispute, claim or controversy resulting from, relating to or arising out of this Agreement, including the breach, termination enforcement, interpretation or validity thereof, shall be submitted to final and binding arbitration administered by the International Court of Arbitration of the International Chamber of Commerce ("ICC") in accordance with its Rules of Arbitration then in effect ("Rules"), except as modified herein.

(a) There shall be three (3) arbitrators, of whom the claimant, or claimants jointly, shall nominate one, and the respondent, or respondents jointly, shall nominate another, in each case within twenty (20) days of the date of delivery of the request for arbitration. The two party-nominated arbitrators shall appoint the third arbitrator, who shall be the president of the tribunal, within thirty (30) days of the date of confirmation of the appointment of the second arbitrator. If, for any reason, any arbitrator is not timely nominated as provided herein, then such arbitrator, or the tribunal if required under the Rules, shall be appointed by the ICC upon the written request of any party.

(b) The seat of arbitration shall be New York City, New York. The language of the arbitration proceedings, and of the award, shall be the English language.

(c) By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment or other temporary or interim order in aid of arbitration proceedings. In any such action, each of the parties hereto irrevocably and unconditionally (i) submits to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York located in New York County, New York, or, if such court does not have jurisdiction, the Supreme Court of the State of New York or any court of competent civil jurisdiction sitting in New York County, New York ("New York Courts"); (ii) waives, and agrees not to assert, by motion or otherwise, that it is not subject the jurisdiction and venue of such courts, that its property is exempt or immune from attachment or execution in the New York Courts, that such action is brought in an inconvenient forum, that the action should be transferred or removed to any court other than one of the New York Courts, that such action should be stayed by reason of the pendency of some other proceeding in any other court other than one of the New York Courts, or that this Agreement or the subject matter hereof may not be enforced in or by the New York Courts; (iii) consents to service of process in any manner provided for by applicable law, through the manner provided for giving notices in Section 10.5 (Notices), or, in the case of the Buyer, through CT Corporation System (the "Agent") located at 111 Eighth Avenue, 13th Floor, New York, New York 10011, who Buyer hereby irrevocably appoint as their agent to receive service of process in such action; and (iv) WAIVES ANY RIGHT TO TRIAL BY JURY. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal, or the emergency arbitrator to the extent and as provided in the Rules, shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal's orders to that effect. Further to its appointment, which shall have been confirmed in writing by the Agent, Buyer shall have granted a notarized irrevocable power of attorney (poder irrevocable para pleitos y cobranzas) to the persons listed in Exhibit O, on the terms set forth in such Exhibit O. Each party agrees that the failure of such agent to give notice to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any action, suit or proceeding based thereon. If for any reason such agent shall cease to be available to act as such, each such party agrees to designate a new agent in the Borough of Manhattan, The City of New York, on the terms and for the purposes of this Section and each party shall, as soon as practicable, give notice to the other party of such new agent. Nothing herein shall be deemed to limit the ability of any other party hereto to serve any such legal process in any other manner permitted by applicable Law or to obtain jurisdiction over any such party or bring actions, suits or proceedings against as may be permitted by applicable Law.

(d) An award of the tribunal shall be final and binding on the parties thereto, and judgment thereon may be entered or enforced in any court of competent jurisdiction, or any court where a party or its assets is located (to whose jurisdiction the parties consent for the purposes of entering or enforcing an award).²

The language of these proceedings is English. SPA, Ex. C1, § 10.4(b).

6.1.

Article 4(1) of the Emergency Arbitrator Rules provides that, if the parties have agreed upon the place of the arbitration, such place shall be the place of the emergency arbitrator proceedings.

6.2.

The place of these proceedings is accordingly New York, New York, USA. Id. § 10.4(b).

Section 10.3 of the Purchase Agreement provides as follows:

Section 10.3 Choice of Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York applicable to agreements made and to be performed entirely within such State.

8.1.

These proceedings are governed by Article 29 of the Rules and the Emergency Arbitrator Rules.

8.2.

Article 5(2) of the Emergency Arbitrator Rules gives the emergency arbitrator broad discretion to conduct the proceedings in the manner the emergency arbitrator considers appropriate, taking into account the nature and urgency of the Application, provided the emergency arbitrator acts fairly and impartially and ensures that each party has a reasonable opportunity to present its case.

8.3.

Further to Article 29(2) of the Rules, the parties undertake to comply with any Order made by the emergency arbitrator.

8.4.

Further to Article 29(3) of the Rules, the emergency arbitrator’s Order shall not bind the arbitral tribunal with respect to any question, issue or dispute determined in the Order. The arbitral tribunal may modify, terminate or annul the Order.

8.5.

Further to Article 6(6) of the Emergency Arbitrator Rules, the emergency arbitrator’s Order shall cease to be binding on the parties upon the arbitral tribunal’s award, unless the arbitral tribunal expressly decides otherwise, or upon the withdrawal of all claims or the termination of the arbitration before the rendering of a final award.

9.1.

By way of summary, the main procedural steps in these proceedings have been the following.

9.2.

On 4 September 2019, the Applicant filed a Request for Arbitration against the Responding Parties (the "Request"). The Secretariat assigned that arbitration case number 24738/MK.

9.3.

On 26 September 2019, the Applicant filed the Application with the ICC pursuant to Article 29(1) of the Rules and Article 1 of the Emergency Arbitrator Rules.

9.4.

The President of the Court considered on the basis of the information contained in the Application that the Emergency Arbitrator Rules applied with reference to Articles 29(5) and 29(6) of the Rules, as required under Article 1(5) of the Emergency Arbitrator Rules.

9.5.

On 27 September 2019, the Secretariat notified the Application to the Responding Parties, pursuant to Article 1(5) of the Emergency Arbitrator Rules.

9.6.

That same day the President of the Court appointed Ms. Kirby as emergency arbitrator pursuant to Article 2(1) of the Emergency Arbitrator Rules and the Secretariat transmitted the file to the emergency arbitrator pursuant to Article 2(3) of the Emergency Arbitrator Rules. Although Ms. Kirby filed an acceptance with disclosure, no party raised any issue with respect to the disclosure or any objection to her appointment.

9.7.

Further to Article 6(4) of the Emergency Arbitrator Rules, the emergency arbitrator’s Order determining the Application was accordingly due no later than 14 October 2019.

9.8.

On 29 September 2019, the emergency arbitrator held a conference call with the parties for purposes of establishing a procedural timetable for the proceedings pursuant to Article 5(1) of the Emergency Arbitrator Rules.

9.9.

That same day the emergency arbitrator notified the procedural timetable to the parties.

9.10.

Also that same day the Responding Parties agreed that they would not enter into any binding agreement to sell their interests in DB Mexico or DB Broker on or before 15 October 2019.

9.11.

On the morning of 8 October 2019, the Responding Parties filed their Response to the Application. With their Response the Responding Parties submitted, among other things, two declarations: one dated 19 September 2019 from Mr. James E. Ruane, a Managing Director at Deutsche Bank AG, London Branch, and one dated 26 September 2019 from Mr. José Manuel Guillemot-Cesari, the Applicant’s Deputy General Director for Compliance and Control.³

9.12.

The afternoon of that same day the parties made oral submissions to the emergency arbitrator by conference call on the merits of the Application. At the close of the call all parties confirmed that they had no objections to the way the proceedings were conducted.

9.13.

On 14 October 2019, the emergency arbitrator timely notified this Order to the parties by email pursuant to Articles 6(4) and 6(5) of the Emergency Arbitrator Rules.

In its Application ¶ 92), the Applicant seeks an order:

- Enjoining the Sellers from making any efforts to market, sell or transfer DB México and DB Broker, including any of their businesses, and any shares or portion of the Sellers' equity in these companies to any third party, and directing them to immediately suspend any sales process of DB México and DB Broker, including, but no limited, by refraining from accepting any offer, signing purchase agreements or any other instruments and from seeking any approval from the Mexican regulators in relation to any sale, during the pendency of the arbitration;

- Directing the Sellers to pay the Applicant the full costs of these proceedings, including but not limited to compensation for all Emergency Arbitrator's fees and costs, and legal fees and expenses incurred by the Applicant in connection with the present proceedings.

11.1.

I have considered all of the allegations, evidence and arguments the parties have submitted to me, though I refer in this Order only to those I consider relevant to my reasoning and decisions.

11.2.

As noted above (¶4.3), on 26 October 2016, Responding Parties 1 and 2 agreed to sell to the Applicant all of their shares in DB Mexico and DB Broker - with Responding Party 3 acting as the sellers' guarantor - as memorialized in the Purchase Agreement. The sale was part of Deutsche Bank AG's "Strategy 2020" to improve global performance by, among other things, closing operations in ten countries - including Mexico - to rationalize its global footprint. Press Release, Deutsche Bank announces details of Strategy 2020, 29 Oct. 2015, Ex. R2; Media Release, Deutsche Bank enters into agreement to sell its banking and securities subsidiaries in Mexico to InvestaBank S.A., Institución de Banca Múltiple, 26 Oct. 2016, Ex. C5.

11.3.

Through the sale, the Applicant would acquire the "Business" of DB Mexico and DB Broker, as defined in the Purchase Agreement. SPA, Ex. C1, § 1.1(n). Certain other businesses of DB Mexico and DB Broker were excluded from the sale, the "Excluded Business". Id. §§ 1.1(kk), 6.20 (Wrong Pockets).

11.4.

The Purchase Agreement initially contemplated a purchase price of USD 175 million, subject to certain adjustments. Id. §§ 1.1(hh) (defining "Equity Purchase Price"), 2.1 (Purchase and Sale of the Transferred Shares), 2.2 (Purchase Price; Allocation).

11.5.

The Applicant represented and warranted that its obligations were not subject to any conditions regarding its ability to "obtain financing for the consummation" of the transaction, that its failure to obtain financing was a "risk" of the Applicant (and not the sellers) and that it had no "reason to believe" it would not have sufficient funding to consummate the transaction. Id. § 5.8 (Funding). This was a "Fundamental Representation". Id. § 1.1(u) (defining "Buyer's Fundamental Representations").

11.6.

The sale under the Purchase Agreement was subject to a variety of conditions. These included the following:

Regulatory Approval. The parties had to obtain approval from Mexico's banking regulator ("CNBV") and antitrust regulator ("COFECE") to transfer the shares of DB Mexico and DB Broker from Responding Parties 1 and 2 to the Applicant. Id. § 7.1(a) and Exhibit J (Requisite Regulatory Approvals).

The Applicant’s Representations. As of the "Closing Date", the Applicant's "Fundamental Representations" (id. § 1.1(u)) must be true and correct "in all respects" and the Applicant's other representations and warranties (id., Article V) must be true and correct "in all material respects". Id. § 7.3(a); see also id. § 2.3 (Closing).

The Applicant’s Covenants. The Applicant must have performed all material obligations and complied with all required covenants under the Purchase Agreement. Id. § 7.3(b).

11.7.

The Purchase Agreement gave Responding Parties 1 and 2 the right to terminate the transaction if the closing did not occur by the "Outside Date" of 31 October 2017, unless the failure to close by that date resulted from a breach by Responding Parties 1 and 2 of any of the covenants under the Purchase Agreement. Id. § 8.1(b). It also gave Responding Parties 1 and 2 the right to terminate if the Applicant breached any of the covenants, agreements, representations or warranties such that Sections 7.3(a) or 7.3(b) would not be satisfied, that breach was uncured, and the Responding Parties were not also in material breach of the Purchase Agreement. Id. § 8.1(d).

11.8.

Within days of the parties signing the Purchase Agreement, two events occurred that I understand are unrelated to each other but both relevant as background to the Application.

11.9.

First, COFECE launched an investigation into the alleged rigging of the price of Mexican public debt securities. COFECE Notice, 28 Oct. 2016, Ex. C8. As part of its investigation, which is still ongoing, COFECE sought information and documents from a variety of international and Mexican entities, including DB Broker. Letter from Responding Parties 1 and 2 to the Applicant, 31 Aug. 2017, Ex. C9, at 1 ("As we understand the allegation, the potentially problematic conduct relates to businesses of Sellers and the Transferred Companies that fall within the definition of Excluded Business under the Agreement").⁴

11.10.

Second, one of the Applicant's principals, Mr. Carlos Djemal, was arrested on financial fraud charges by US authorities. On 31 October 2016, US federal prosecutors charged Mr. Djemal and others with international money laundering, wire fraud and conspiracy allegedly involving the laundering of over USD 100 million through the US banking system that deprived the Mexican government of millions of dollars in tax revenue. Mr. Djemal ultimately plead guilty to wire fraud in connection with a scheme to fraudulently obtain over USD 20 million in tax refunds from the government of Mexico. In May 2018, he was sentenced to 75 months in prison. Petition, 18 Sept. 2019, Ex. C34, ¶ 24 n.3.

11.11.

Mr. Djemal was a partner and board member of the Applicant, as well as its second largest shareholder and was one of its notice recipients in the Purchase Agreement. SPA, Ex. C1, § 10.5 (Notices). His arrest and prosecution delayed the parties' ability to move forward with the transaction. Among other things, Mr. Djemal's arrest triggered a review by CNBV to investigate whether the Applicant had been used as a vehicle for money laundering. Following that review, Mr. Djemal and his family divested their holdings in the Applicant and the Applicant brought in new shareholders. In light of these events, Responding Parties 1 and 2 also commissioned their own review of the Applicant's significant shareholders, their sources of funds and the sources of funds of new investors that may invest in the Applicant. Id. ¶ 25.

11.12.

Due primarily to the fallout from Mr. Djemal's arrest and the Applicant's efforts to recapitalize, the parties were unable to close by the original Outside Date of 31 October 2017. On 20 October 2017, the parties entered into the First Amendment to the Purchase Agreement, which extended the Outside Date to 31 December 2017. First Amendment, Ex. R4, ¶ 1.

11.13.

But the parties did not close by 31 December 2017 either. And by early 2018, the Responding Parties were concerned that the Applicant did not possess, or could not obtain, sufficient funding to consummate the transaction. On 13 February 2018, Responding Parties 1 and 2 informed the Applicant that they believed it was in breach of its representation in Section 5.8 of the Purchase Agreement regarding the availability of sufficient funding to consummate the transaction. They continued, however, to work with the Applicant towards closing the transaction and sought to negotiate a way forward. Letter from Responding Parties 1 and 2 to the Applicant, 13 Feb. 2018, Ex. R5, at 1. During these discussions, the Applicant requested that the Purchase Agreement be amended a second time to reduce the purchase price on the grounds that DB Mexico appeared to be loss-making and might remain so for some time, and DB Broker was not expected to have sufficient revenues to support its cost-base. Letter from the Applicant to Deutsche Bank AG, 15 Feb. 2018, Ex. R6.

11.14.

During these negotiations, the Responding Parties expressed that it was important for them to get certainty as to closing if they were to agree to amend the Purchase Agreement again and agree to price concessions. The Responding Parties stressed that they had significant misgivings about expending additional time and resources on a transaction that the Applicant had failed to consummate for nearly a year and a half. In response, the Applicant assured the Responding Parties that it would promptly complete the transaction if they would agree to its requested price concessions. In this regard, the Applicant was confident it could obtain CNBV approval and that the transaction would close within months, if not weeks, of executing the second amendment. Ruane ¶¶ 20-22.

11.15.

On 8 March 2018, the parties agreed the Second Amendment to the Purchase Agreement. Under the Second Amendment, the purchase price dropped to USD 130 million (subject to certain adjustments). Second Amendment, Ex. C7, ¶ 3.

11.16.

The Second Amendment also included terms designed to promote the prompt closing of the transaction. These included the following:

Outside Date. The Outside Date for closing was set at 30 June 2018. Id. ¶ 23.

Purchase Price Increases. The purchase price would step up if the transaction did not close by certain dates. Specifically, the purchase price would step up by USD 5 million if the transaction did not close by 18 May 2018. And it would step up by another USD 5 million if the transaction did not close by 18 June 2018. Id. ¶ 3.

Release of Escrow. The Applicant agreed that if the closing did not occur in accordance with the terms of the Purchase Agreement, a USD 10 million purchase price escrow payment the Applicant had made would be released to Responding Parties 1 and 2 and remain with them in the event that they terminated the Purchase Agreement. Id. ¶¶ 4, 12.

11.17.

About two weeks after the parties signed the Second Amendment, on 23 March 2018, the Applicant applied ex parte for an injunction from a court in Mexico City preventing the Responding Parties from selling DB Mexico and DB Broker to anyone other than the Applicant. Guillemot-Cesari ¶ 15. The court granted the requested ex parte injunction on 2 April 2018 (the "April 2018 Injunction"). Id. ¶ 16. The April 2018 Injunction appears in the record as Exhibits 38A and 38B.

11.18.

The Responding Parties contend that the Applicant kept the April 2018 Injunction to itself and did not notify it to the Responding Parties. The Responding Parties say they only learned of it nearly a year and half later on 9 September 2019. Ruane ¶¶ 59-61. For its part, the Applicant contends that the Responding Parties were "informed of the issuance of the injunction" and that the parties discussed it "repeatedly". Guillemot-Cesari ¶ 17. However, the Applicant has provided no documentary evidence of any such discussions or even specified when the alleged discussions took place or between whom. Moreover, the Applicant acknowledges that it did not ask the court to serve the April 2018 Injunction on the Responding Parties. And the Applicant nowhere contends that it ever provided a copy to the Responding Parties. Id. ¶ 19. In these circumstances, I accept the Responding Parties' contention that they only learned of the April 2018 Injunction a few weeks ago.

11.19.

The Applicant has also suggested that it obtained the April 2018 Injunction to prevent some of its own shareholders from interfering in the transaction under the Purchase Agreement and told the Responding Parties so. Id. ¶¶ 10-17; Second Amendment, Ex. C7, ¶ 34. This appears to be true, as far as it goes, because some of the Applicants' shareholders were also targets of the injunction. But it does not explain why the Applicant sought the injunction against the Responding Parties, much less why it did not immediately tell the Responding Parties that the injunction applied to them.

11.20.

About three weeks after the parties signed the Second Amendment, on 30 March 2018, a US-based pension fund filed a class action lawsuit against numerous international and Mexican financial institutions, including DB Mexico, based on the alleged market manipulation of Mexican public debt securities that prompted the COFECE investigation (supra ¶ 11.9). Class Action Complaint, 30 Mar. 2018, Ex. C13.

11.21.

The filing of the class action also prompted CNBV to withhold its expected approval of the transaction and to ask questions about the potential liabilities the Applicant might face if there were judgments against DB Mexico post-closing. In mid-April 2018, the Applicant proposed a third amendment to the Purchase Agreement that would give the Applicant uncapped indemnification for liabilities arising from the class action. The Responding Parties rejected the Applicant's request. Email exchange between the Applicant and Deutsche Bank AG, 25-26 Apr. 2018, Ex. C19; email exchange between the Applicant and Deutsche Bank AG, 20 and 26 Apr. 2018, Ex. C20.

11.22.

The parties continued to work together to address CNBV's concerns, but their relationship grew contentious. Email from the Applicant to Deutsche Bank AG, 1 May 2018, Ex. C21; email from the Applicant to Deutsche Bank AG, 1 May 2018, Ex. C22; letter to CNBV, 4 May 2018, Exs. C25 and C23, at 3-10; email exchange between the Applicant and Deutsche Bank AG, 10-14 May 2018, Ex. C24.

11.23.

In May 2018, several other US-based pension funds filed class actions naming DB Mexico as a defendant. Class Action Complaint, 3 May 2018, Ex. C14; Class Action Complaint, 14 May 2018, Ex. C15; Class Action Complaint, 17 May 2018, Ex. C17; Class Action Complaint, 25 May 2018, Ex. C18. All of the US class actions are still pending.

11.24.

During the summer of 2018, the parties accused each other of being in breach of the Purchase Agreement. On 11 June 2018, Responding Parties 1 and 2 gave notice that the Applicant had breached certain covenants regarding communications with CNBV, infringed Deutsche Bank AG's trademarked logo (upon rebranding from InvestaBank to Accendo Banco) and failed to release the USD 10 million escrow amount. They also reiterated their concern that the Applicant was in breach of its representation that it had sufficient funding to consummate the transaction. Letter from Responding Parties 1 and 2 to the Applicant, 11 Jun. 2018, Ex. R9.

11.25.

On 14 June 2018, the Applicant denied that it was in breach of the Purchase Agreement and confirmed that it has sufficient funds to close. Letter from the Applicant to Deutsche Bank AG, Deutsche Bank Americas Holding, Corp. and Responding Parties 1 and 2, 14 Jun. 2018, Ex. R10. And on 25 June 2018, the Applicant released the USD 10 million escrow amount. Ruane ¶ 33.

11.26.

On 26 June 2018, the Applicant gave notice that Responding Parties 1 and 2 had breached numerous representations, warranties and covenants under the Purchase Agreement, as well as an implied covenant of good faith under New York law by refusing to assume all liabilities arising out of the alleged rigging of the price of Mexican public debt securities. In this regard, the Applicant contended that these liabilities were part of the "Excluded Business" under the Purchase Agreement and that Responding Parties 1 and 2 must therefore keep them. The Applicant also accused Responding Parties 1 and 2 of breaching their covenant to make every effort to obtain CNBV's approval of the transaction and continued to press for a third amendment to the Purchase Agreement. Letter from the Applicant to Deutsche Bank AG, Deutsche Bank Americas Holding, Corp. and Responding Parties 1 and 2, 26 Jun. 2018, Ex. C28; letter from the Applicant to Deutsche Bank AG, 29 Aug. 2018, Ex. C31; letter from Responding Parties 1 and 2 to the Applicant, 6 Sept. 2018, Ex. C32.

11.27.

On 29 June 2018, Responding Parties 1 and 2 denied that they were in breach of the Purchase Agreement, again refused any further amendment to the Purchase Agreement and considered that the Applicant's correspondence with them had confirmed that it lacked the money needed to close the transaction. Letter from Responding Parties 1 and 2 to the Applicant, 29 Jun. 2018, Ex. C29.

11.28.

On 30 June 2018, the Outside Date came and went.

11.29.

On 4 July 2018, the Applicant insisted that it would have sufficient funds to close and contended that this was, in any event, an issue for closing, not before. Letter from the Applicant to Deutsche Bank AG, Deutsche Bank Americas Holding, Corp. and Responding Parties 1 and 2, 4 Jul. 2018, Ex. C30; see also Guillemot-Cesari ¶ 24 ("Accendo had sufficient funds to close the transaction and had repeatedly represented this fact to the DB Entities prior to October 26, 2018" and "had also provided documentation to the DB Entities to substantiate those representations").

11.30.

In the following months, the parties continued to try to come to terms, but to no avail.

11.31.

On 26 October 2018 – two years after the parties had signed the Purchase Agreement – Responding Parties 1 and 2 purported to terminate it. Letter from Responding Parties 1 and 2 to the Applicant, 26 Oct. 2018, Ex. C26 ("Termination Notice"). In their Termination Notice, Responding Parties 1 and 2 contended that termination was permitted because the parties had failed to close by the Outside Date (Section 8.1(b)) and because of the Applicant's breaches of the Purchase Agreement – including its failure to have enough money to close the transaction – such that the conditions set forth in Sections 7.3(a) and 7.3(b) could not be satisfied (Section 8.1(d)). Responding Parties 1 and 2 also said that they would retain the USD 10 million escrow amount further to Section 8.2(b) of the Purchase Agreement. Second Amendment, Ex. C7, ¶¶ 23-24.

11.32.

The following day, on 27 October 2018, the Applicant responded that the Termination Notice was invalid and threatened legal action if it was not retracted. Letter from the Applicant to Deutsche Bank AG, Deutsche Bank Americas Holding, Corp. and Responding Parties 1 and 2, 27 Oct. 2018, Ex. C27 ("Accendo expects a retraction of the purported termination", failing which "Accendo will suffer significant damages" and "will pursue all available legal relief"). Responding Parties 1 and 2 refused to retract it and reiterated that the Applicant's failure to secure funding and repeated attempts to renegotiate the Purchase Agreement reflected its unwillingness to close the transaction on the agreed terms. Letter from Responding Parties 1 and 2 to the Applicant, 29 Oct. 2018, Ex. R17; see also letter from Responding Parties 1 and 2 to the Applicant, 6 Sept. 2018, Ex. C32.

11.33.

On 30 October 2018, the parties entered into a Pre-Negotiation Agreement ("PNA") to facilitate discussions regarding a potential settlement related to the purported termination of the Purchase Agreement by Responding Parties 1 and 2. Ruane ¶ 41 ("The primary purpose of the PNA was to allow the parties to confidentially discuss a potential settlement without giving up any rights or incurring any liability").

11.34.

The following day, 31 October 2018, the Applicant learned that the Responding Parties were looking for a new buyer for DB Mexico and DB Broker and had already been looking for about a month. Request ¶¶ 14, 82.

11.35.

The parties' discussions further to the PNA began in early November 2018 and finished at the end of May 2019 without a settlement. Ruane ¶¶ 44-45.

11.36.

During this time, the Responding Parties were taking steps to find an alternative buyer for DB Mexico's corporate trust business ("DB Mexico's Trust Business"), which is its principal business. DB Mexico's Trust Business establishes and manages trusts that administer a company's cash flow and hold money and other assets. It services about 6 000 clients and is the business that is of principal interest to the Applicant. After acquiring DB Mexico, the Applicant foresees offering traditional banking services (loans and deposits) to those 6 000 clients, in addition to continuing to manage their trusts.⁵ Guillemot-Cesari ¶ 7.

11.37.

The Responding Parties solicited bidders for DB Mexico's Trust Business through a months-long competitive bidding process. Ruane ¶ 55. In March 2019, the Applicant publicly filed an audited financial report in which it claimed that it was "in the process of acquiring" DB Mexico's Trust Business further to an agreement reflected in the PNA and had delivered USD 10 million towards the purchase price. The Applicant's Financial Statements as of 31 December 2018 and 2017, Ex. R22, at 90-92; Ruane ¶¶ 46-47.

11.38.

On 10 April 2019, Responding Parties 1 and 2 wrote to the Applicant, noted that these statements were inaccurate and asked that the Applicant correct them promptly. Although the Applicant orally acknowledged to the Responding Parties that the statements were inaccurate and promised to correct them, there is no evidence that it has done so. Letter from Responding Parties 1 and 2 to the Applicant, 10 Apr. 2019, Ex. R15; Ruane ¶¶ 49-50. See also letter from Deutsche Bank AG, Deutsche Bank Americas Holding Corp and Responding Parties 1 and 2 to the Applicant, 9 Sept. 2019, Ex. C35, at 4 ("we ask that you advise Deutsche Bank as to the status of Accendo's correction of the false statements in its audited financial report"); letter from the Applicant to the Responding Parties, 13 Sept. 2019, Ex. R20, at 2 (declining to answer).

11.39.

Despite this, by early September 2019, the Responding Parties were close to selling DB Mexico's Trust Business to a third-party buyer. Of the 12 potential buyers contacted, seven had signed non-disclosure agreements, five had submitted a non-binding indication of interest and had been invited to the second phase of the process, and four had attended a management presentation and expert sessions in Mexico. Binding offers were due from bidders by 30 September 2019. Ruane ¶¶ 51-55.

11.40.

Unbeknownst to the Responding Parties, however, in August 2019, the Applicant had filed another application ex parte with the court in Mexico City to extend and expand the scope of the April 2018 Injunction. On 4 September 2019, the court granted the application. In addition to enjoining the Responding Parties from selling any part of DB Mexico to anyone other than the Applicant, the court's order also directs CNBV and COFECE not to authorize the sale of any part of DB Mexico to anyone other than the Applicant. Guillemot-Cesari ¶¶ 26-28. This extended and expanded ex parte injunction is known as the "Mexico Injunction" and appears in the record as Exhibit C37.

11.41.

As noted above (¶ 9.2), on 4 September 2019, the Applicant filed for arbitration with the ICC. In its Request, the Applicant seeks damages for breach of contract based on the Responding Parties' alleged refusal to take the necessary steps to secure CNBV's approval of the transaction by refusing to unequivocally represent to CNBV that, under the terms of the Purchase Agreement, the Applicant would never have to pay any liabilities arising from the alleged rigging of Mexican public debt securities because those liabilities were part of the Excluded Business and Responding Parties 1 and 2 therefore had to keep them.⁶ Request ¶¶ 9, 19(b), 68-69, 87, 90, 95-96, 114(d).

11.42.

The Applicant further contends that the Termination Notice is invalid because it was the Responding Parties' breach of the Purchase Agreement that prevented the parties from getting CNBV approval and closing by the Outside Date and that the Applicant had the funds needed to close. The Applicant seeks an order directing the Responding Parties to "comply with the Purchase Agreement" by (1) assuming any liabilities arising from the alleged rigging of Mexican public debt securities, (2) telling CNBV that they have assumed them and (3) transferring DB Mexico and DB Broker to the Applicant without these liabilities. Id. ¶¶ 20, 114(c). And pending the arbitration, the Applicant asks the arbitral tribunal to issue interim measures enjoining the Responding Parties from selling, or attempting to sell, any part of DB Mexico and DB Broker to anyone else. Id. ¶¶ 11-13, 71, 99, 117-119.

11.43.

The Applicant alleges that, if it fails to purchase DB Mexico and DB Broker it may cease to exist. In this regard, the Applicant says that its current capital is USD 30 million and, if the transaction does not close, it will have a loss of USD 15 million (the USD 10 million escrow amount that the Responding Parties will keep and USD 5 million in transaction expenses it will have to write down) that will cause the Applicant to fall below the minimum capital requirements under Mexican law. Request ¶¶ 27, 28, 84-85; see also Application ¶ 13.

11.44.

The Applicant did not mention anything about the Mexico Injunction in its Request, however, nor did it immediately provide a copy of it to the Responding Parties. Instead, on 5 September 2019, the Applicant wrote to the Responding Parties and asked them to voluntarily agree to refrain from selling any part of DB Mexico or DB Broker during the pendency of the arbitration. The Applicant said that, if the Responding Parties did not so agree by 7 September 2019, the Applicant "will seek immediate injunctive relief" – relief the Applicant had, in fact, already sought and received. Letter from the Applicant to the Responding Parties, Deutsche Bank, AG and Deutsche Bank Americas Holding, Corp., 5 Sept. 2019, Ex. C36.

11.45.

On 9 September 2019, Responding Parties 1 and 2 confirmed that they would not enter into any binding agreement to sell their interests in DB Mexico or DB Broker on or before 30 September 2019. The Responding Parties learned of the Mexico Injunction – and the 2018 April Injunction that it references and extends – later that same day after DB Mexico received a copy of it. Ruane ¶¶ 59-61.

11.46.

On 17 September 2019, DB Mexico filed a motion in the Mexico City court to set aside the Mexico Injunction on the grounds that that court did not have jurisdiction to issue it. Guillemot-Cesari ¶ 30. And one day later, on 18 September 2019, the Responding Parties filed a petition in the US District Court for the Southern District of New York ("Southern District") for an order directing the Applicant to withdraw the Mexico Injunction and to refrain from enforcing it while it remains in effect. Petition, 18 Sept. 2019, Ex. C34. On 20 and 23 September 2019, DB Mexico and COFECE filed appeals against the Mexico Injunction. Guillemot-Cesari ¶ 30. All of these actions are still pending.⁷

11.47.

On 26 September 2019, the Applicant filed the Application that commenced these proceedings.

11.48.

Further to Article 6(2) of the Emergency Arbitrator Rules, I must determine whether I have jurisdiction to order Emergency Measures and whether the Application is admissible pursuant to Article 29(1) of the Rules.

11.49.

As noted above (¶ 9.4), the President of the Court considered on the basis of the information contained in the Application that the Emergency Arbitrator Rules applied with reference to Articles 29(5) and 29(6) of the Rules, as required under Article 1(5) of the Emergency Arbitrator Rules.

11.50.

The Responding Parties confirmed during oral submissions that they do not contest my jurisdiction to order Emergency Measures.

11.51.

With regards to my jurisdiction, Article 29(5) of the Rules provides that Articles 29(1) through 29(4) of the Rules and the Emergency Arbitrator Rules (together, "Emergency Arbitrator Provisions") only apply to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories. As noted above (¶ 4.1), the Purchase Agreement containing the arbitration agreement was signed by the Applicant (which was formerly known as InvestaBank) and the Responding Parties. All of the parties are accordingly signatories of the arbitration agreement under the Rules, as required by Article 29(5) of the Rules.

11.52.

Article 29(6) of the Rules provides that the Emergency Arbitrator Provisions shall not apply if (a) the arbitration agreement under the Rules was concluded before 1 January 2012 or (b) the parties have agreed to opt out of the Emergency Arbitrator Provisions or (c) the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures. None of these apply here. The parties concluded their arbitration agreement after 1 January 2012. They have not agreed to opt out of the Emergency Arbitrator Provisions. And they have not agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures.

11.53.

I accordingly have jurisdiction to order Emergency Measures.

11.54.

With regards to the admissibility of the Application, Article 29(1) provides that a party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal may make an application for such measures pursuant to the Emergency Arbitrator Rules.

11.55.

The Responding Parties also confirmed during oral submissions that they do not challenge the admissibility of the Application. The arbitral tribunal has yet to be constituted in case 24738/MK. And it is undisputed that Responding Parties 1 and 2 are "on the cusp" of selling DB Mexico's Trust Business to a third-party buyer (Petition, 18 Sept. 2019, Ex. C34, ¶ 8) and might enter into a binding agreement with a new buyer as soon as 16 October 2019 (supra ¶ 9.10) – something the Application seeks Emergency Measures to prevent.

11.56.

The Application is accordingly admissible.

11.57.

Article 29(1) of the Rules permits parties to seek Emergency Measures, which are "urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal". To succeed, the Applicant must accordingly demonstrate that the Emergency Measures it seeks cannot await the constitution of the arbitral tribunal in case 24738/MK. Beyond this, however, neither Article 29 of the Rules nor the Emergency Arbitrator Rules articulate the standards I am to apply when deciding whether to grant the Emergency Measures requested in the Application. Andrea Carlevaris and José Ricardo Feris, Running in the ICC Emergency Arbitrator Rules: The First Ten Cases, ICC Bulletin (2014) ("Carlevaris | Feris"), Ex. CL3, at 21.

11.58.

When parties apply for interim measures before arbitral tribunals in international commercial cases, arbitrators frequently take into account the following when deciding whether to grant the application:

(1) Has the applicant established a prima facie case on the merits?

(2) Is there a risk that the applicant will suffer serious or irreparable harm?

(3) Is the risk of harm imminent? (i.e., urgency)

(4) Does the balance of hardships weigh in the applicant's favor?

(5) Can the arbitral tribunal decide to grant the requested measures without prejudging the merits of the parties' dispute?

See Ali Yesilirmak, Interim and Conservatory Measures in ICC Arbitral Practice, 1999-2008, ICC Bulletin Special Supplement (2011), Ex. CL4, at 11-12 (explaining the criteria arbitrators often use in considering applications for interim measures). See also Interim Award in Case 12361 (Extract), ICC Bulletin Special Supplement (2011) ("Award 12361"), Ex. CL5, at 5 (noting that the "granting of interim relief constitutes an exceptional measure").

11.59.

In practice, arbitral tribunals typically take a pragmatic, commercially-sensible approach and consider these issues in light of all of the relevant circumstances and the particular measure requested. Depending on the situation and the nature of the measure, each of these issues may feature more or less prominently. For examples of the way arbitral tribunals approach applications for interim measures, see Award 12361, Ex. CL5; Partial Award in Case 10681 (Extract), ICC Bulletin Special Supplement (2011), Ex. CL6; Interim Award in Case 10021 (Extract), ICC Bulletin Special Supplement (2011), Ex. CL7.

11.60.

In deciding whether to grant the Emergency Measures at issue here, I adopt a similar approach, as the Applicant has advocated. Application ¶¶ 56-58, 60. I note, however, that in these proceedings, the fifth consideration – regarding prejudgment of the merits – does not apply. While arbitrators should be mindful when deciding applications for interim measures not to prejudge the merits of the dispute they will ultimately have to decide, I am an emergency arbitrator and will have no role in deciding the parties' dispute. Emergency Arbitrator Rules, Art. 2(6) (providing that an "emergency arbitrator shall not act as an arbitrator in any arbitration relating to the dispute that gave rise to the Application"). In all events, however, my Order cannot prejudge the ultimate merits of the parties' dispute, as it is based on only a prima facie analysis of their claims and defenses.

11.61.

For avoidance of doubt, I also note that, while the place of these proceedings is New York, NY, USA, to the best of my knowledge neither New York law nor US federal law prescribe standards an arbitral tribunal should apply when deciding applications for interim measures in international arbitrations and no party has claimed that they do. Under these circumstances, I consider that international standards apply and accordingly declined the Responding Parties' invitation to import into these proceedings the standards New York courts or US federal courts apply when evaluating requests for interim measures (Response ¶¶ 74-80). ICC Commission Report – Emergency Arbitrator Proceedings, 2019, Ex. R24, ¶ 30 ("most EAs have applied substantive criteria developed in connection with the granting of interim measures by arbitral tribunals and by reference to standards distilled from international arbitration practice rather than in accordance with any specific domestic laws"); Carlevaris | Feris, Ex. CL3, at 22 (noting that it is not uncommon for emergency arbitrators to rely "more heavily on international arbitral practice").

11.62.

As noted above (§ 10), the Applicant seeks an order enjoining the Responding Parties from making any efforts to sell any part of DB Mexico or DB Broker, and directing them to suspend the sale process, during the pendency of the arbitration in case 24738/MK. In support of its request, the Applicant says that the sale of DB Mexico or DB Broker or their core businesses to a third party would aggravate the dispute between the parties and frustrate its right to close the deal under the Purchase Agreement. And any award the Applicant might ultimately receive from the arbitral tribunal ordering the Responding Parties to transfer ownership of DB Mexico and DB Broker to the Applicant would be rendered ineffectual.

11.63.

Relatedly, the Applicant contends that, if the requested measures are not granted, it will suffer irreparable harm that cannot adequately be compensated by money. This is because, if the Responding Parties sell BD Mexico's Trust Business, the arbitral tribunal will be unable to grant the key relief of specific performance that the Applicant is seeking and its rights under the Purchase Agreement will be irremediably eviscerated. The risk of that harm is imminent, as the Responding Parties have indicated that they may enter into a binding agreement with a third-party buyer as soon as 16 October 2019, long before the arbitral tribunal will be constituted.

11.64.

The Applicant further contends that, if the requested measures are granted, there will be no harm to the Responding Parties because there is already a valid and enforceable contract in place – namely, the Purchase Agreement – through which the Applicant will purchase DB Mexico from the Responding Parties. During the pendency of the arbitration, the Responding Parties will continue running and profiting from DB Mexico and its trust management services. The balance of convenience and the equities in the case therefore weigh in favor of granting the requested measures.

Application ¶¶ 6-9, 55-69.

11.65.

I disagree.

11.66.

As a preliminary matter, I consider that the urgency that attends the Application is of the Applicant's own making. As noted above (¶ 11.34), the Applicant has known since 31 October 2018 that the Responding Parties were looking for a new buyer for DB Mexico and DB Broker. If the Applicant considered that, despite the Termination Notice, it still had a right to acquire those companies under the Purchase Agreement, it could have filed for arbitration straightaway. It did not.

11.67.

The Applicant has suggested that it did not because the parties entered into settlement discussions under the PNA. It is not clear to me, however, why those discussions would have precluded the Applicant from filing for arbitration in parallel. In addition, the Responding Parties terminated those discussions at the end of May 2019 and the Applicant did not file for arbitration then either. Instead it waited three more months – until 4 September 2019, when the Responding Parties were about to sell DB Mexico's Trust Business to a third-party buyer – to do so. I see no legitimate reason for this delay.

11.68.

Moreover, the Applicant delayed still further its request for Emergency Measures. It filed the Application for those on 26 September 2019, nearly three weeks after it filed for arbitration. In this regard, the Applicant emphasized during oral submissions that it only learned on 18 September 2019 (when the Responding Parties filed their Petition with the Southern District) that the Responding Parties were to receive binding offers for DB Mexico's Trust Business on 30 September 2019. But even if the Applicant did not know these specific details until then, it has known that the Responding Parties were looking for a new buyer for DB Mexico and DB Broker – a sale that would encompass DB Mexico's Trust Business – since November 2018. I see no legitimate reason the Applicant would wait until the sale was imminent to seek measures to prevent it.

11.69.

And, in fact, the Applicant did not wait until the sale was imminent to seek measures to prevent it. The Applicant has long been concerned that events might evolve such that the Responding Parties would want to sell DB Mexico and DB Broker to a third party and it has repeatedly sought – and received – ex parte injunctive relief from the Mexico City court to prevent this. It first did so back in March 2018, months before the Responding Parties purported to terminate the Purchase Agreement and seek a new buyer. And then again in August 2019 when the Responding Parties' sale process was already well-advanced. It was only after the Responding Parties learned of these ex parte injunctions and began to challenge them in light of the terms of the parties' arbitration agreement that the Applicant sought the Emergency Measures at issue here.

11.70.

In short, the Applicant could have filed for arbitration to enforce the Purchase Agreement and buy DB Mexico and DB Broker in November 2018 or, at the latest, June 2019. It did not do so, instead preferring to seek ex parte injunctions from the Mexico City court to prevent a sale to anyone else. And it cannot now rely on urgency of its own making to obtain Emergency Measures under the Rules.

11.71.

I am also not persuaded that the Applicant will suffer irreparable harm if the requested measures are denied. The Applicant contends that, absent the requested measures, the Responding Parties will sell DB Mexico's Trust Business to another buyer and it will be impossible for the arbitral tribunal to order the Responding Parties to specifically perform the Purchase Agreement and sell DB Mexico and DB Broker to the Applicant – the key relief it seeks. But even assuming arguendo that that the arbitral tribunal would be minded to make an order of specific performance, its inability to do so could only arguably constitute irreparable harm if the Applicant were in fact ready, willing and able to close on the terms set out in the Purchase Agreement. The Applicant has not persuaded me that it is.

11.72.

Since the Responding Parties purported to terminate the Purchase Agreement about a year ago, the Applicant has not been acting the way I would expect it to act if it were eager to enforce its alleged rights under the Purchase Agreement and close the transaction. At a minimum, I would have expected it to immediately and aggressively pursue its alleged rights by filing for arbitration – as it threatened to on 27 October 2018, the day after it received the Termination Notice. But it did not – not then and not after the parties' settlement negotiations finished at the end of May 2019. Its failure to do so in and of itself makes me doubt it is as committed to seeing the transaction through on the agreed terms as it now claims.

11.73.

Moreover, since US-based pension funds began filing class actions against DB Mexico in March 2018, the Applicant has repeatedly asked the Responding Parties to agree to a third amendment to the Purchase Agreement that would give the Applicant uncapped indemnification for any liabilities arising from those cases – something the Responding Parties have refused to do. This suggests to me that the Applicant may not be content with the terms of the Purchase Agreement as they currently stand. It is also not clear to me that, absent such an amendment, CNBV would be willing to approve the transaction, as it was apparently CNBV's concerns about these potential liabilities that prompted it to withhold approval in 2018.

11.74.

In addition, I have doubts as to whether the Applicant has the funds needed to close. The Applicant contends that it does – or that it can get the money from its principal shareholders – and that it has provided the Responding Parties documentation to prove this. This documentation has not been provided to me, however, and it was apparently insufficient to allay the Responding Parties' concerns. During oral submissions, the parties disagreed as to how much money the Applicant would need at closing. The Responding Parties said at least USD 100 million. The Applicant said no more than USD 45 million. But even assuming the Applicant is right about the amount of money needed to close, this is more than the USD 30 million in total capital it currently claims to have.⁸

11.75.

For these same reasons, I am also not persuaded that the sale of DB Mexico's Trust Business would necessarily aggravate the dispute between the parties. Any potential aggravation flowing from the sale of DB Mexico's Trust Business would only be of concern if the Applicant were in fact ready, willing and able to buy DB Mexico and DB Broker on the terms set out in the Purchase Agreement, and I am not persuaded that it is.

11.76.

I am also not persuaded that the balance of hardships weighs in the Applicant's favor. The Applicant contends that granting the requested measures would not harm the Responding Parties at all because the Purchase Agreement is valid and enforceable and the Applicant will purchase DB Mexico from the Responding Parties. As explained above, however, I am not persuaded that the Applicant would actually purchase DB Mexico and DB Broker under the terms of the Purchase Agreement if it were found to have the right to do so. The Applicant also says that, during the arbitration, the Responding Parties will continue running and profiting from DB Mexico and its trust management services. But this contention is at odds with the assumptions that underlay the price reduction in the Second Amendment – namely, that DB Mexico was loss-making – and the Responding Parties dispute it. According to them, until the sale is complete, there are significant carrying costs of over USD 1 million per month to continue to operate DB Mexico. Ruane ¶ 57.

11.77.

Moreover, the Responding Parties have been trying to sell off their Mexico business for the past three years. Since November 2018, they have invested significant time, effort and resources on the sales process for DB Mexico's Trust Business. That process is now at an advanced stage. Further, during 2019, CNBV has continually pressured Deutsche Bank AG to promptly sell DB Mexico's Trust Business and has at times threatened to impose penalties if it does not complete the sale. Id. ¶¶ 51-58 (noting that CNBV has not, however, pressured Deutsche Bank AG to sell DB Mexico's Trust Business to the Applicant). In these circumstances, I do not accept that granting the requested measures would be cost-free for the Responding Parties or even that the balance of hardship weighs in the Applicant's favor.

11.78.

In closing, I note that, during oral submissions, the Applicant contended that under Section 10.13 of the Purchase Agreement it does not need to prove urgency or irreparable harm to obtain Emergency Measures. That Section provides in pertinent part as follows:

Section 10.13 Specific Performance. The parties hereto hereby acknowledge and agree that immediate, extensive and irreparable damage would result, no adequate remedy at law would exist and damages would be difficult to determine in the event that any provision of this Agreement is not performed in accordance with its specific terms or otherwise breached. Accordingly, the parties hereto shall be entitled to specific performance of the terms hereof and immediate injunctive relief and other equitable relief, without the necessity of proving the inadequacy of money damages as a remedy, and the parties hereto shall waive any requirement for the securing or posting of a bond in connection with the obtaining of such injunctive or other equitable relief. Each of the parties hereto hereby acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief and the parties' entitlement to seek specific performance of the terms hereof, is in addition to any other remedy at law or in equity available to such party. Each of the parties hereto further acknowledges and agrees that injunctive relief and/or specific performance will not cause an undue hardship to such party. Notwithstanding the foregoing, following the termination of this Agreement pursuant to Section 8.1, no party hereto shall be entitled to seek or obtain specific performance or any other equitable remedy with respect to the enforcement of any party's obligation to consummate the Closing and any other related obligations.

11.79.

The parties have not made submissions to me as to what effect (if any) this type of provision has under New York law. I also confess that it is not clear to me from the face of it whether the parties intended it to have any bearing on a request for Emergency Measures under the Rules. Moreover, by its express terms, following termination of the Purchase Agreement pursuant to Section 8.1, Section 10.13 bars the parties from seeking specific performance or any other equitable remedy with respect to the enforcement of any party's obligation to close and any other related obligations. Responding Parties 1 and 2 purported to terminate the Purchase Agreement pursuant to Section 8.1 on 26 October 2018. The Applicant contests the validity of that purported termination, so this will be an issue for the arbitral tribunal to determine. But I see no reason for me to accept the Applicant's position that the purported termination was invalid for purposes of considering the Application. For all of these reasons, I am not persuaded that Section 10.13 necessarily has any application to the decision I need to take here.

11.80.

The requested measures are accordingly denied.

11.81.

Article 7(3) of the Emergency Arbitrator Rules provides that my Order shall fix the costs of these proceedings and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.

11.82.

Article 7(4) of the Emergency Arbitrator Rules provides that the costs of these proceedings include the ICC administrative expenses, my fees and expenses and the reasonable legal and other costs incurred by the parties for these proceedings.

11.83.

Further to Article 7(1) of the Emergency Arbitrator Rules, the Applicant has paid to the ICC an amount of USD 40 000, consisting of USD 10 000 for ICC administrative expenses and USD 30 000 for my fees and expenses.

11.84.

The costs of these proceedings are now fixed as follows:

ICC administrative expenses USD 10 000

Emergency arbitrator's fees USD 30 000

11.85.

For avoidance of doubt, I incurred no expenses in connection with these proceedings.

11.86.

Given the time constraints on these proceedings, rather than make submissions to me on costs, the parties agreed during oral submissions that I should provide in my Order that (1) the Applicant shall bear the ICC administrative expenses and my fees and (2) each side shall bear its own legal and other costs incurred in these proceedings.

11.87.

The parties foresee in due course asking the arbitral tribunal to reallocate these costs pursuant to Article 29(4) of the Rules. The arbitral tribunal will have time to receive submissions on costs from the parties, consider the reasonableness of the legal costs incurred and determine for itself the most appropriate way to allocate all of the costs associated with these proceedings.

12.1.

For the reasons set forth above. I make the following Order:

12.2.

I have jurisdiction to order Emergency Measures.

12.3.

The Application is admissible under Article 29(1) of the Rules.

12.4.

I deny the Emergency Measures requested in the Application.

12.5.

The costs of the emergency proceedings are fixed as follows:

ICC administrative expenses USD 10 000

Emergency arbitrator's fees USD 30 000

12.6.

The Applicant shall bear the costs fixed in paragraph 12.5.

12.7.

The parties shall bear their respective legal and other costs.

12.8.

The cost allocations in paragraphs 12.6 and 12.7 are subject to reallocation by the arbitral tribunal in case 24738/MK.

12.9.

All other requests are rejected.

Accendo v. Deutsche Mexico Holdings et. al.

Documents of the case

Lawyers, other representatives, expert(s), tribunal’s secretary

Order

1. PARTIES

2. EMERGENCY ARBITRATOR

3. SECRETARIAT OF THE COURT

4. DISPUTE RESOLUTION PROVISIONS

5. LANGUAGE OF THE PROCEEDINGS

6. PLACE OF THE PROCEEDINGS

7. APPLICABLE LAW

8. PROCEDURAL RULES

9. PROCEDURAL HISTORY

10. EMERGENCY MEASURES SOUGHT

11. REASONING

A. Background to the Application

B. Jurisdiction and Admissibility

Jurisdiction

Admissibility

C. Standards for Granting Emergency Measures

D. The Requested Emergency Measures

E. Costs

12. ORDER

Instantly access the most relevant case law, treaties and doctrine.