"All disputes arising in connection with the present contract shall be finally settled under the Rules of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The award must be issued within six months from the communication to the Court of Arbitration of the Terms of Reference referred to in the same rules. This time limit may be extended only by written agreement between the parties. "
"1. These proceedings shall be split into two stages: Stage 1 jurisdictional issues: Stage 2 substantive issues.
2. While a further Order will be needed as to Stage 2, Stage I shall be conducted as set out in Clause 3 below.
3(i) The jurisdictional questions for decision at Stage I shall be:
(a) On the assumption (to be later proved) that the Respondent were to be "held liable for the breach of all, or any, of the above subjects set out in Issue I and Issue 2 at (a), (b) and (c)" of the Terms of Reference, does the sole arbitrator have jurisdiction to award to the Claimant all, or any of the relief sought by it as set out in Issue 5 at(a), (b), (c), (d) and (e) of the said Terms?
(b) On the assumption (to be later proved) that the Respondent's allegations, as set out in the said Terms, are correct, does the sole arbitrator have jurisdiction to rule upon all, or any, of the counterclaims made by the Respondent as set out in Issues 6, 9 and 10 of the said Terms?
(ii) Each party is to draw up a Memorandum of law dealing with the jurisdictional questions set out in 3(i) above. Each Memorandum shall be supported, as appropriate, by expert opinions as to law and other relevant materials.
(iii) The Memoranda and supporting documents are to be exchanged between the parties on Tuesday 1 July 1997.
(iv) Each party is to draw up a Reply to the other party's Memorandum, appropriately supported as above, and the Replies are to be exchanged between the parties on Tuesday 5 August 1997.
(v) In order to implement the simultaneous exchanges of the Memoranda and Replies, as referred to in 3(iii) and 3(iv) above, each party shall transmit its documents, in three copies, to M. Mantilla-Serrano in the ICC Court's secretariat in Paris, for him to forward one copy of each party's documents to the other party and one copy of each to the arbitrator, as soon as each filing of documents with him is completed. He will retain one copy for his file.
(vi) An oral hearing as to the jurisdictional questions set out in 3(i) above shall begin on Wednesday 27 August 1997 at a suitable venue in London.
Such further procedural directions as may be necessary to give effect to this Order (including directions as to the filing of post-hearing memoranda) shall be made by the arbitrator, each party (or the two parties together) being entitled to make any necessary applications to him."
"1). Each of the parties shall prepare a memorandum of law relating to the question set out in Clause 3(1)(a) of the Arbitrator's order dated 21 May 1997. The memoranda are to be exchanged by transmission to the Arbitrator not later than 26 November 1997, the memoranda to be in three copies. The copies shall be sent to the Arbitrator for him to distribute them simultaneously one to the other party, one to the ICC secretariat, and one for his own file.
2.(a) The Respondent shall file a memorandum of law in relation to the issue set out in 3(1)(b) of the Arbitrator’s order dated 21 May 1997. The memorandum shall be served in three copies upon the Arbitrator not later than 26 November 1997, and he shall again, distribute the copies as set out in 1) above.
(b) The Claimant shall prepare a memorandum of law in response to that of the Respondent and shall serve that memorandum in three copies upon the Arbitrator not later than 18 December 1997. The Arbitrator shall distribute the copies as set out in 1) above."
"1. Under an Agreement dated 18th March 1985 ("the Agreement") between the Respondent, which is engaged, among other things, in the manufacture, sale and distribution of wood automative products and other vehicle parts and accessories and the Connelly Company (the predecessor in interest of the Claimant), which Agreement was subsequently assigned to the Claimant with the consent of the Respondent, the former was appointed as exclusive sales agent of the Respondent for the sale of the Respondent’s products, as defined in the Agreement, to various customers in Canada and the United States.
2. Various disputes arose between the parties, in particular as to the question of termination of the Agreement by notice dated 17th December 1990. In accordance with Clause 14 of the Agreement (as amended subsequently by agreement of the parties), these disputes were submitted to ICC arbitration (ICC Case No. 7453/FMS). An award in that arbitration ("the First Arbitration") was rendered in the form of eleven individual awards on 1st March1994 by the sole arbitrator, A. W.A. Berkeley Esq ("the Award"); the seat of arbitration being London, England. Under the Award, the arbitrator required the Respondent to pay money and to perform certain other obligations. These are set out in length in the Award to which reference may be made for them.
3. The Respondent did not, in its words, "accept" the Award ("non-acceptance"). This arbitration arises out of events subsequent to the Award, in particular the continuation of legal proceedings in the USA by the Claimant, specifically those proceedings in the United States District Court for the Eastern District of Michigan for confirmation and enforcement of the Award, and concurrent proceedings in the same Court to vacate the Award by the Respondent, under the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards and the United States Arbitration Act, including appellate proceedings initiated by the Respondent in the United States Court of Appeals for the Sixth Circuit. Following the decision of the said Court dated 3rd July 1996 confirming the Award in full, the Respondent has paid all amounts due under the individual awards four, five, six, seven, ten and eleven, including interest." (Emphasis added)
"I hearby A WARD. DETERMINE and ORDER that:
Behr shall specifically perform all the terms of the Contract remaining to be performed by it including:
1. Performance of Behr's obligations under Clause 6(e) of the contract by providing, not later than the fifteenth day of the month following the month in which shipment of any order is made by Behr, copies of all purchase orders, acceptances and invoices for products (as defined in the contract) sold in the territory (as defined in the agreement).
2. Payment of all commissions due to Connelly, without offset of any kind other than reductions in or refund of the purchase price due to quality or quantity or as a result of non payment to Behr of the corresponding net invoice price (as defined in the contract), not later than the fifteenth day of the month following the month in which shipment is made of any order of products in the territory and specifically including the following products:
1991 Model Year Business
- Atoma International (3 parts) - Switchplates
- Worthington Custom Plastics (4 parts, RH & LH) - IP Wood Panels
- Inland Fisher Guide - Door Panels, Quarter Panels (RH & LH), Handels-Dark Amer, Walnut Front and Rear Door Panels - Elm Burl
- Libralter Plastics (4 parts) - Wood inserts
- Prince Corporation (6 parts) - Wood Appliques plus 1 console
- Windsor Plastics - Wood obtained from Behr for Cadillac C I/P Plat Package Six Pages With Six Parts Eacg plus Radio Trim Plat-European version.
1992 Cadillac Business
- Davidson Instrument Panel (1 set, RH & LH) - 1992 EK -I/P Program
- Cadillac Motor Car Division (1 part) - 1992 EK -Console Program
- Inland Division, 1992 EK - Door Panel Program - Sevill Door Panels (Base Level) Front Doors (RH & LH); Seville Door Panels (STS Option) Front Doors (RH & LH) and Rear Doors (RH & LH); Eldorado Door Panels -Front Doors (RH & LH)
1994 Cadillac "K" Car Series
- Inland Division - 1994 K Special - Door Panel Program
- Cadillac Motor Car Division, 1994 K Special - I/P Program - Base & Up Level; 1994 K Special - Light Switch Bezel - Base and Up Level; 1994 K Special Radio Trim Plate - Base & Up Level"
"6. Defendant (Respondent) Behr has not performed the obligations to pay money and to perform other obligations as described in the Award/Sentence of March 1, 1994, and as a result Plaintiff (Claimant) M & C has been required to obtain confirmation of the Award/Sentence in the Courts of the United States of America, together with other post-confirmation proceedings to attempt to obtain compliance by Defendant (Respondent) Behr with its obligations to comply with the Award/Sentence of March 1, 1994.
7. The failure of Defendant (Respondent) Behr to comply with its obligations under the Award/Sentence of March 1, 1994, and its opposition to enforcement of it in the Courts of the United States, constitutes a breach of the Agreement to finally settle all disputes by arbitration before this Court, and also constitutes a breach of the Terms of Reference as expressly agreed to by Behr, which incorporate the rules of this Court, including the duty to comply with any award of this Court.
8. Plaintiff (Claimant) M & C has sustained damages as a result of the breaches by Defendant (Respondent) Behr for attorney fees and other expenses which, for purposes of this Request for Arbitration only are estimated at $150,000.00." (At present this amount is estimated at $250,000)."
(i) grant damages in such amounts as the proofs in the matter may establish, with interest
(ii) grant an award of the Claimant’s costs in this matter, including attorney’s fees and
(iii) grant such other and further relief as is within the authority of the Court of Arbitration and the Arbitrator as may be justified in the matter.
(iv) deny the counterclaims raised by the Respondent.
(a) the relief claimed in (i), (ii) and (iii) above lacks particularity.
(b) as arbitrator, I have no jurisdiction to award the Claimant costs of confirmation and enforcement as above
(c) the Claimant should have taken steps in Germany, rather than the USA, to seek confirmation and enforcement of the Award in the First Arbitration. The Respondent’s principal place of business is in Germany
(d) by way of counterclaim that the eighth award, (set out at pages 7 and 8 above is "spoilt by fraud", because, it is said, the Claimant misled the arbitrator, Mr Berkeley, as to the significance of certain documents produced to him in the First Arbitration.
"1. Does the non-performance by the Respondent of the Award, in whole or in part, prior to the judicial proceedings referred to in paragraph C(a)(4) above, and taking into account its position as to "non-acceptance", constitute a breach by the Respondent of: (a) the agreement to arbitrate -as set out in Clause 14 of the Agreement and/or (b) the agreed Terms of Reference in the First Arbitration and /or (c) the Arbitration Rules of the ICC; in particular Article 24(2) of those Rules?
2. Does the opposition by the Respondent to the recognition and enforcement of the Award, and again taking into account its position as to "non-acceptance", constitute a breach of (a) the agreement to arbitrate -as set out in Clause 14 of the Agreement and/or (b) the agreed Terms of Reference in the First Arbitration and/or (c) the Arbitration Rules of the ICC, in particular Article 24(2) of those Rules?
3. Is the Respondent’s non-performance and/or its opposition to the recognition and enforcement of the Award justified (i) by virtue of the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards or (ii) on the ground that the Award has not been granted exequatur in Germany, (i.e. a German court decision granting recognition and enforcement of the Award in Germany), the principal place of business of the Respondent?
4. Has the Respondent’s non-performance of the Award, in whole or in part, made it necessary for the Claimant to seek and obtain judgments of judicial confirmation of the First Award in the Courts of the U.S.A., and to engage in subsequent post-judgment proceedings in order to obtain compliance with the Award by the Respondent?
5. If the Respondent is held liable for the breach of all or any of the subjects set out in Issue 1 and Issue 2 at (a), (b) and (c) above (i) does the Arbitrator have jurisdiction to award all or any of the following relief to the Claimant and (ii), if so, what relief should be granted: (Emphasis added)
(a) Damages as claimed for the costs and expenses incurred by the Claimant including attorneys’ fees, sustained in connection with the confirmation and attempts to enforce the Award, estimated at this time (and subject to further assessment, including as to amount) to be in the amount of US $250,000.00; and/or
(b) An injunctive order from the Arbitrator, directing the Respondent to pay to the Claimant all costs and expenses incurred by it, including its attorneys’ fees, sustained in the future in connection with the confirmation of and attempts to enforce, the Award, and/or
(c) An injunctive order from the Arbitrator directing the Respondent to cease and effords and activities to oppose confirmation of, and attempts to enforce the Award, and/or (Emphasis added).
(d) Its costs and expenses, including attorneys’ fees and the expenses of the Arbitrator and the charges of the International Court of Arbitration in this matter, and/or
(e) Any other relief that is justified in this matter arising from the failure of the Respondent to comply with the Award?
6. Does the Arbitrator have jurisdiction to rule upon the counterclaim by the Respondent that the decision in the eighth individual award in Article IV in the First Award is null and void because of fraud? (Emphasis added).
7. If the Arbitrator finds that he has jurisdiction to rule upon that counterclaim in respect of the eighth individual award, is that counterclaim barred by the doctrine of res judicata and/or by collateral estoppel or any other applicable legal defence?
8. If the Arbitrator has jurisdiction to rule upon that counterclaim, and if that counterclaim is not barred by the doctrine of res judicata and/or collateral estoppel or any other applicable legal defence, is the eighth individual award void in its entirety or only insorfar as it concerns vehicle parts of the 1994 K Special Program which were not tooling parts for door panels at the prototyping stage?
9. Does the Arbitrator have jurisdiction to rule upon the counterclaim that the commission on orders "actively solicited" by the Claimant under Subparagraph 7(3) and 7(4) of the Agreement, such as the orders under the 1994 K Special Program, is limited to three years following the date of termination of the Agreement, i.e. up to the period ending 18th March 1994? If so, is this counterclaim barred for the reasons referred to in Issue 7 above? If not, is this counterclaim to be granted and in what amount? (Emphasis added).
10. Does the Arbitrator have jurisdiction to rule upon the counterclaim that the Respondent is entitled to set-off from any money payable to the Claimant $ 121,986.10 with interest pursuant to Subparagraphs 6(c), 6(f) and 6(g) of the Agreement? If so, is this counterclaim barred for the reasons referred to in Issue 7 above? If not, is this counterclaim to be granted? (Emphasis added).
11. What costs and expenses in these proceedings should be awarded by the Arbitrator?"
"All disputes arising in connection with the present contract shall be finally settled under the Rules of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The award must be issued within six months from the communication to the Court of Arbitration of the Terms of Reference referred to in the same rules. This time limit may be extended only by written agreement between the parties." (Emphasis added).
"1. The arbitral award shall be final.
2. By submitting the dispute to arbitration by the International Chamber of Commerce, the parties shall be deemed to have undertaken to carry out the resulting award without delay and to have waived their right to any form of appeal insofar as such waiver can validly be made." (Emphasis added).
"Waiver" of "any form of appeal" cannot, however, act as a bar to nullification procedures established under national laws to void arbitral proceedings that have been conducted without jurisdiction or by fraud or that are otherwise incompatible with national public policy".
"(i) (to state) that the commission of 3% payable in any order "actively solicited (By the Claimant) is limited to three years ending March 18 1994 in accordance with subparagraphs 7(3) and 7(4) of the Agreement" (C at page 7 of the Terms of Reference in this Arbitration), and: ((ii) "(to order) a set-off of $121,986.10 with interest from any money payable to the Claimant (pursuant to subparagraphs 6(c). 6(f) and 6(g) of the Agreement)". at the same page in the Terms of Reference and Issue 10 at pages 12 and 13 above). (Emphasis added).
(1) the Claimant’s claim for relief (see paragraph 3(i)(a) of the Order of 21 May 1997).
and (2) the Counterclaims of the Respondent (see paragraph 3(i)(b) of the Order of 21 May 1997).
Accordingly, each party shall pay $20,000
(b) each party shall bear the costs incurred by it in its preparation and representation in these arbitral proceedings.