8.1 Arbitration. If any dispute or claim (other than over a price per Share as described in Section 6.3(c)) between two or more Shareholders or between one or more Shareholders and the Company (in this Section 8.1, each a "disputing party") arising out of this Agreement or any of the Organizational Documents or the rights and duties of the Shareholders and the Company arising out of this Agreement or any of the Organizational Documents (in this Section 8.1, a "claim") has not been resolved by mutual agreement on or before the 30th day following the first notice of the subject matter of the claim to or from the disputing parties, then any disputing party may refer the claim to arbitration under the following provisions:
(a) To refer a claim to arbitration, a disputing party must provide notice to the other disputing parties stating (i) a general description of the claim and (ii) that the claim is being referred to arbitration under this Section 8.1.
(b) The disputing parties (excluding the Company) shall endeavor to agree promptly on a panel of three arbitrators. If on or before the 15th day following the notice described in Section 8.1(a) they have not so agreed, then:
(i) if there are only two sides to the claim, the disputing party or parties on each side may designate one arbitrator, and
(ii) in all other cases, each Shareholder or group of Shareholders with an aggregate Ownership Percentage equal to or exceeding half the aggregate Ownership Percentages of all disputing parties may designate one arbitrator.
For purposes of this Section 8.1(b), Shareholders may group together at their option to be only one side or group. If no arbitrator or only one arbitrator is selected as just provided by the 15th day following the expiration of the 15-day period referred to at the beginning of the immediately preceding sentence, any disputing party may request the Chief Judge of the United States District Court for the Southern District of New York to designate a number of arbitrators so that two in total have been designated. The two arbitrators designated as provided above in this Section 8.1 (b)shall endeavor to designate promptly a third arbitrator. If the two arbitrators have not designated the third arbitrator by the 15th day following the designation of the second arbitrator, any disputing party may request the Chief Judge of the United States District Court for the Southern District of New York to appoint the third arbitrator. If the judge named above has failed to designate an arbitrator, then on or after the 15th day following the request any disputing party may request the Judicial Arbitration and Mediation Service (or its successor) to designate the arbitrator. If any arbitrator resigns, becomes incapacitated, or otherwise refuses or fails to serve or to continue to serve as an arbitrator, the disputing party or other Person that designated that arbitrator shall designate a successor.
(c) The arbitration shall be conducted in New York City or such other place as the disputing parties may agree. The arbitrators shall set the date, the time, and the place of the hearing, which must commence on or before the 30th day following the designation of the third arbitrator. The hearing may be adjourned to later times and dates as the arbitrators determine. The arbitration shall be conducted under the rules of the International Chamber of Commerce not inconsistent with the provisions of this Agreement or such other rules as the disputing parties may agree. The arbitrators shall endeavor to notify any disputing parties not present of any adjournment to other dates or places; however, the proceedings may continue in the absence of any disputing party that has received notice of the date, the time, and the place of the initial session of the hearing. All hearings shall be conducted in English.
(d) The arbitrators shall endeavor to render their decision on or before the 30th day following the last session of the hearing. If the position of one or more disputing parties prevails, then the other disputing party or parties shall pay all fees and expenses of the arbitrators and the prevailing disputing party in the arbitration. If the positions of multiple disputing parties prevail, the arbitrators’ decision must include an allocation of the fees and expenses of the arbitrators to the disputing parties based on the extent to which those disputing parties do not prevail on their positions. Each disputing party against which the decision assesses a monetary obligation shall pay that obligation on or before the 30th day following the decision or such other date as the decision may provide.
(e) The decisions of the arbitrators are final and binding on all disputing parties and are not subject to appeal. Without limiting the provisions of Section 8.2, the decisions of the arbitrators may be enforced in any court of competent jurisdiction, and the disputing parties authorize any such court to enter judgment on the arbitrators’ decisions.
(f) EACH OF THE SHAREHOLDERS AND THE COMPANY AGREES THAT ARBITRATION UNDER THIS SECTION 8.1 IS THE EXCLUSIVE METHOD FOR RESOLVING ANY CLAIM AND THAT IT WILL NOT, AND WILL NOT PERMIT THE COMPANY TO, COMMENCE AN ACTION OR PROCEEDING BASED ON A CLAIM, EXCEPT TO ENFORCE ARBITRATORS’ DECISIONS AS PROVIDED IN SECTION 8.1(e) OR TO COMPEL THE OTHER PARTY TO PARTICIPATE IN ARBITRATION UNDER THIS SECTION 8.1.
1. An award of monetary damages for losses sustained by EEMC as a result of the wrongs specified above, including the total amount of its investment in the Project of US$158.2 million, and additional damages measured by the attorneys’ fees and costs incurred as a result of Respondents’ wrongful acts in pursuing various proceedings in India both in its courts and before the Company Law Board designed to frustrate both EEMC’s rights as a shareholder of DPC and its contractually-stipula ted right to exclusive recourse to international arbitration to vindicate those rights;
2. Injunctive relief restraining Respondents from taking any further actions in breach of the Shareholders Agreement or Articles of Association;
3. Injunctive relief restraining Respondents from continuing or commencing any proceedings in India, or taking any steps which have the purpose and/or effect of interfering with this arbitral proceeding or otherwise interfering with EEMC’s right to arbitrate disputes under the Shareholders Agreement;
4. An award of pre- and post-award compound interest;
5. An award of the costs of this arbitration, including EEMC’s attorneys’ fees, incurred both in these proceedings and in the ancillary proceedings in the United States District Court for the Southern District of New York brought in aid of this arbitration;
6. Any other relief this Arbitral Tribunal deems just and appropriate.
8.2 Jurisdiction, (a) This Section 8.2 does not affect the limitations set forth in Section 8.1 on commencing judicial proceedings, but may be used to enforce arbitrators’ decisions, to compel Persons to participate in arbitration, or to compel Persons that have brought judicial proceedings other than in compliance with this Article VIII to dismiss those proceedings.
(b) ANY ACTION ARISING OUT OF THIS AGREEMENT OR ANY OF THE ORGANIZATIONAL DOCUMENTS OR THE RIGHTS AND DUTIES OF THE SHAREHOLDERS OR THE COMPANY ARISING OUT OF THIS AGREEMENT OR ANY OF THE ORGANIZATIONAL DOCUMENTS MAY BE BROUGHT, IF AT ALL, ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (OR IF THAT COURT REFUSES JURISDICTION, THE SUPREME COURT OF THE STATE OF NEW YORK' SITTING IN AND FOR NEW YORK COUNTY) AND NOT IN ANY OTHER COURT OR TRIBUNAL.
They sought an order compelling MPDCL to arbitrate, and simultaneously moving for injunctive relief against any action by MPCDL to interfere with this proceeding. MPDCL did not appear in the federal court action, but immediately obtained an ex parte order from a court in Maharashtra purporting to restrain Claimants from pursuing this proceeding. The federal court in New York issued successive orders enjoining MPDLC from interfering with the arbitration, all of which MPDCL ignored. MPDCL also informed the ICC Court that it would neither participate in the arbitration nor name an arbitrator as called for by Section 8.1 (b)(i) of the Shareholders Agreement.
"We have refused to honor our contractual obligations by choice. It is our strategic decision not to pay...as we want to scrap the power purchase agreement the state has with [DPC]...Our decision not to pay...has nothing to do with the state’s finances."
1. The Arbitral Tribunal has jurisdiction over Respondents and each of them, and has jurisdiction to determine all the issues tendered to it by the Terms of Reference and to render an Award thereon.
2. Respondents are jointly and severally liable for and, pursuant to the terms of Section 8.1 (d) of the Shareholders Agreement, shall pay to Claimant EEMC on or before the 30th day following the date of this Award, the amount of Ninety-four million seven hundred thousand dollars (US$94,700,000), with simple interest thereon at the rate of 9% per annum from May 2, 2002, to the date of this Award and thereafter at such rate on any unpaid balance of such amount until it has been paid in full.
3. Respondents are jointly and severally liable for and, pursuant to the terms of Section 8.1(d) of the Shareholders Agreement, shall pay to Claimant EEMC on or before the 30th day following the date of this Award, the additional amount of two million seven hundred twenty-four thousand nine hundred sixty-two dollars (US$2,724,962) with simple interest on any unpaid balance thereof at the rate of 9% per annum from the date of this Award until paid in full.
4. Respondents shall pay in full the costs of this arbitration. Respondents shall therefore be jointly and severally liable for and, pursuant to the terms of Section 8.1(d) of the Shareholders Agreement, shall pay to Claimant EEMC on or before the 30th day following the date of this Award, the additional amount of two hundred eighty-five thousand dollars (US$285,000) with regard to the costs of the arbitration as fixed by the ICC Court, with simple interest on any unpaid balance thereof at the rate of 9% per annum from the date of this Award until paid in full.
5. All other claims for relief should be and the same hereby are denied.