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

Award

[1].
This award as to my jurisdiction in the above case is rendered between the Claimant, M & C Corporation ("the Claimant") represented by Mr John C. Louisell and Mr Russ E. Boltz of Cross Wrock, Detroit, and the Respondent, Erwin Behr GmbH & Company ("the Respondent") represented by Dr Sami Sarkis, Attorney at Law, and Mr Nigel Rawding, the later, of Freshfields, London:

PART I : The Constitution of the Tribunal

[2].
Under Clause 14 of an Agreement between the Claimant and the Respondent of 18th March 1985 ("the Agreement"):

"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. "

[3].
For the avoidance of doubt it was subsequently agreed between the parties that the last sentence of Clause 14 in the Agreement should not fetter the powers of the Court of Arbitration to extend the time limit or to take other measures under Article 18 of the Rules.
[4].
Referring to the above provision in Clause 14 of the Agreement, the Claimant made a Request for Arbitration, received by the ICC Court of Arbitration on 4 September 1995. The Respondent answered by way of a Response and Counterclaim dated 12 October 1995. The Claimant answered the Respondent’s Response and Counterclaim in a letter dated 12 December 1995. There has been much correspondence since then, including the Respondent’s letters of 23 February 1996 and 1 August 1996. The parties have also filed post-hearing memoranda of law. (See the Ruling at p.5 below).
[5].
In its request for arbitration the Claimant asked that A.W.A. Berkeley Esq., who had acted as arbitrator in the previous arbitration under Clause 14 of the Agreement ("the First Arbitration") should again be appointed to act in this arbitration. The Respondent, on the other hand, asked that the arbitral tribunal should consist of three arbitrators and that the place of arbitration should be a "civil law country" in Europe; not London, as in the First Arbitration.
[6].
The facts relating to the original dispute under the Agreement and the decision in the First Arbitration are set out briefly in Part III below.
[7].
The ICC Court of Arbitration at its session on 15 November 1996 decided, inter alia, that, "this matter will be heard by a Sole Arbitrator"... and "fixed London (United Kingdom) as place of arbitration’". On 29 November 1996, the Court considered the Respondent’s comments on its decision of 15 November 1996, and, in effect confirmed London as the place or arbitration and appointed me, Professor R.W. Bentham, as sole arbitrator. Hence, the Seat of Arbitration is London. The language of the proceedings is English. The Agreement, under its terms, (Clause 13), "shall be interpreted in accordance with, and governed by, the laws of the State of Michigan."

PART II : The Proceedings of the Tribunal

[8].
Terms of Reference were drafted by the sole arbitrator, agreed by the parties representatives after prolonged correspondence and signed on behalf of the parties and by the arbitrator. His, the final signature, was affixed on 10 February 1997. The Terms of Reference were duly submitted to the ICC Court of Arbitration and it took note of the Terms of Reference at its session on 5 March 1997; the necessary extensions of time having been granted.
[9].
Following correspondence with the parties, as to the future progress of the matter, the arbitrator made the following Order dated 21 May 1997; in effect, agreed by 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."

[10].
To suit the convenience of the parties, and following certain delays, an oral hearing was held at Kusel’s Arbitration Centre, 124 Aldersgate Street London on Tuesday 4 November 1997, that venue having been suggested by the arbitrator and agreed by the parties. The memoranda required by the Order had been filed prior to the oral hearing. The Claimant provided further authorities at the hearing.
[11].
For case of reference to the Issues referred to in the above Order, the Issues as they appear in the Terms of Reference are set out in Part V below.
[12].
A transcript of the proceedings on Tuesday 4 November was taken.
[13].
At the oral hearing the Claimant was represented by Mr John C. Louisell and Mr Russ E Boltz, the Respondent by Mr Sami Sarkis and Mr Nigel Rawding.
[14].
At the close of the oral hearing on 4 November 1997, the arbitrator, after discussion with the parties and with their agreement, made the following ruling:

"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."

[15].
It was understood by both parties at the oral hearing that the arbitrator retained the discretion to make such future orders as might be necessary in the furtherance of these proceedings. Despite some short delays, the memoranda referred to in the ruling were filed by the parties. In writing this Award I have taken into account the Respondent’s criticism of the Claimant’s final memorandum (2(b) above) and of the Claimant’s response to that criticism.

PART III: The Background to the Proceedings of the Tribunal

[16].
The background to these proceedings lies in the Agreement, its termination, proceedings in the United States, the First Arbitration, the award in that Arbitration and in legal proceedings in the USA subsequent to the award in that arbitration.
[17].
In the Terms of Reference in this arbitration, as agreed by the parties, the factual background was briefly summarised as follows:

"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)

[18].
As to the awards; four, five, six, seven, ten and eleven related to liquidated sums to be paid and, as seen above, these have now been paid. The eighth award, however, was not for a liquidated sum. It reads:

"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"

[19].
I set out that (eighth) award in full because its effect and implementation have been a matter for particular controversy between the parties in the period since the Award in the First Arbitration was made in March 1994, and still is. However, I do not propose to attempt to trace here the course of the continuing legal proceedings between the parties in the USA since then. That is not necessary for the purposes of this decision. The basic point is that the Issues put to me in this arbitration arise against the background of the First Award and of continuing litigation in the USA.

PART IV : The Major Contentions of the Parties

[20].
So far as the Claimant is concerned, and quoting from the Claimant’s own words, as recited in the Terms of Reference in this matter:

"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)."

[21].
Upon that basis, the Claimant has asked me to:

(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.

[22].
As for the Respondent, it has replied, that:

(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.

[23].
The Respondent also asserts two further, and more particular counterclaims. However, I would propose first in this award to deal with major issues of principle before moving to a detailed consideration of those two counterclaims in Part VI (c) below.

PART V : The Issues as set out in the Terms of Reference

[24].
After considerable correspondence between the parties and the arbitrator, the Issues were set out as follows in the Terms of Reference:

"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?"

[25].
In the course of these proceedings, it became clear that questions as to the arbitrator’s jurisdiction to take these proceedings further were central to the issues between them. Hence, with the agreement of the parties the proceedings were to be split into two stages (i) jurisdiction, and (ii) substance, as set out in the Order of May 21 1997 with its references to the Issues (see pp. 3 and 4 above).
[26].
Put shortly, the jurisdictional question, with which this award is concerned is, assuming the allegations of each party were to be proved correct, does the arbitrator have jurisdiction to award to either party, or both, all or any of, the relief which each claims?

VI. The jurisdiction of the Tribunal to deal with the Parties’ claims and counterclaims

[27].
As arbitrator in this matter, I am faced with what is for me a novel situation, and one which, I believe, might be novel to others similarly placed. Here I am faced with a pre-existing ICC arbitral award rendered between the same parties as those to this arbitration, and I am asked to give relief to each of them.
[28].
The Claimant, in effect, asks me to award to it, by way of damages, the costs it has incurred in seeking the recognition and enforcement in the United States of America, of the favourable award it received in the First Arbitration. The Respondent, for its part, asks me, in effect to strike down one of that award’s major findings on the basis of an allegation of fraud, and to interpret, or reinterpret, in light of that award and subsequent events, certain provisions of the original contract of 1985, which was itself the subject of that award.
[29].
As has been seen, in engaging on this task, and with the parties agreement, I ruled that I should first decide as to whether I had jurisdiction to entertain and determine the merits of their claims. In this sense the "merits" would also include questions of res judicata, issue estoppel or preclusion. (And see the provisions in the Terms of Reference; Issues 5, 6, 9 and 10 at pages 11 to 13 above).
[30].
Looking at that question of "jurisdiction", I find two pre-eminently important concepts in this case. The first is to be found in paragraph 14 of Contract of 1985, under which the First Arbitration, and this arbitration, has been brought. The clause reads:

"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).

[31].
The concept is "all disputes arising in connection with the.....contract" shall be "finally settled".
[32].
The second concept is to be found in Article 24 of the ICC Rules of Arbitration. It reads:

"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).

[33].
The concept is "finality" of "the resulting award" within the ICC context.
[34].
As to the first concept, it seems to me that I have jurisdiction only to deal with "disputes arising in connection with the present contract" and in my view that "connection" must be reasonably close. As to the second I must take into account the concept of "finality" as set out in Clause 14 representing the parties’ agreement to arbitrate and to carry out the award.
[35].
As to finality, the extent to which an ICC award can be recognised, and enforced in the courts of countries around the world, raises the question, before a court, of the extent to which the waiver of the right of appeal can validly be made, i.e. to what extent challenge before a court in any particular jurisdiction can be excluded.
[36].
It is I think rightly said in "International Chamber of Commerce Arbitration" (2 ed. Craig, Park and Paulsson (1990) at page 364):

"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".

[37].
The reference to "appeal" here is to the possibility of an appeal before a court in a national domestic jurisidction. No award can be made completely "judge proof’. Not this, nor any other.
[38].
In this case. I am not a judge. I am an arbitrator appointed under, and in accordance with, the ICC Arbitration Rules, and my jurisdiction stems from those Rules. The Rules themselves stress the finality of an award ("the resulting award") - within the pattern of the Rules - and the Rules do not provide for a system of appeal.
[39].
In light of those general observations, let me now turn to the more specific issues raised by the parties in the arbitration.
[40].
(a) First, let me examine the Claimants prayer for relief. Here I am asked primarily to grant damages by way of the Claimants’ costs in U.S. litigation brought by the Claimant for confirmation and enforcement of the First Award. The failure of the Respondent "to comply with its obligations under the First Award and its opposition to enforcement in the U.S.A." is said to be a breach of the arbitration agreement and of the Terms of Reference in the First Arbitration (and see page 9 above). Of course, what any successful Claimant chooses to do with an award is a question for it.
[41].
At the oral hearing, and, in more detail, e. g. in its memorandum to me dated 6 November 1997, the Claimant puts its case that the question of "arbitrability" is a question of Michigan law. Under that law, I am told, there are three questions I should answer: (i) is there an arbitration provision in the parties’ contract? (ii) whether the disputed issue is arguably within the arbitration clause? (Emphasis added) and (iii) whether the dispute is expressly exempt from arbitration by the terms of the contract? As to (i) and (iii) above, I am told that there is no dispute, and as far as the original Agreement is concerned, I agree However, as to (ii) above, and on the assumption that Michigan law governs the question, the authorities cited to me by the Claimant do not assist me on what is indeed meant by "arguably". This, however, in my view is not the main issue. What I must consider in the first instance is whether the question as to subsequent damages by way of legal costs, incurred after the first ICC award was given falls within Clause 14 of the Contract as a "dispute arising in connection with the present contract".
[42].
I find that it does not. Its "connection" with "the present contract" is too remote. It arises in connection with the recognition and enforcement of the award in the First Arbitration, not the agreement itself, and hence is beyond my jurisdiction in this case. Even if I am wrong in that view, and if I did have jurisdiction to entertain the claim, it would not, I think, be for me to assess, or to order, the payment of costs in litigation subsequent to an ICC award. In accordance with English law, and I understand general international practice, while an arbitrator can award costs in the case before him - as I do in this case - his discretion as to costs does not extend to other proceedings. (See Article 20 of the ICC Rules, and, as to English law, Arnold Karberg v Blythe Green etc. (1915) KBD at 392, 393 and Higham v. Havant etc. (1951) T.L.R. at 90). The claim here is for damages, but the damages claimed amount, in substance, to costs.
[43].
There is also a further reason why I decide that I do not have jurisdiction to grant the Claimant the relief that it seeks. It is this. National domestic courts are still, and often with good reason, jealous of their own (domestic) jurisdiction. Nevertheless, in recent times, many national jurisdictions around the world have granted great freedom to the arbitral process - in particular in respect of international commercial arbitrations, like this case. There has been an increasing willingness to enforce arbitral awards, and a tendency to reduce the grounds for judicial challenge of them. One need only consider how many nation states now accept the provisions of the 1958 New York Convention and how many have, in effect, enacted the provisions of the Uncitral Model Arbitration Law of 1985, to see the trend. It is one which I, and many others, welcome since international commercial arbitration has an important place in a globalised world economy. Nevertheless national domestic legal challenge still exists, and even purported injunctive relief granted by an arbitrator may not be effective before a national court. (See pages 12 and 15 above).
[44].
In this case were I to find that the Claimant should recover damages, by way (substantially) of legal costs against the Respondent, that would in my view be tantamount to imposing a restraint upon a party prepared to challenge an award under domestic law. Hence, I am not prepared to do so. National public policy is a question, in essence, for the courts of each sovereign nation. That is not within my power here.
[45].
Let me add, however, that if a challenge to an award were to be found, under national domestic law, to be frivolous or vexatious, then the remedy for the injured party would lie within the competence of the domestic court, wherever it might be.
[46].
I deal with the question of costs in these proceedings and the Respondent’s counterclaims later in this award, but, for the reasons given, I find I have no jurisdiction to grant damages or other relief, to the Claimant.
[47].
(b) Let me now turn to the position of the Respondent.
[48].
As to the serious allegation that the eighth award in the First Arbitration is "spoilt by fraud" on the basis alleged by the Respondent, in its Counterclaim of 12 October 1995, namely that the arbitrator "was misled by Connelly (the Claimant) over the real significance of the documents actually tendered (to the arbitrator)", I shall have little to say.
[49].
As has been seen, in the Agreement, Paragraph 14, the arbitration clause, reads in part "All disputes arising in connection with the present contract shall be finally settled....." In my view the question of a possible "fraud" or "misleading" in the course of an arbitration brought under that clause simply does not arise "in connection with the present contract". It arises in connection with the prior arbitral proceedings, and I have no hesitation in reaching the conclusion that I have no jurisdiction under Paragraph 14 to enquire into that question.
[50].
A domestic court, however, before which the award were to be challenged might well have jurisdiction under its own domestic law and/or applying the New York Convention 1958 as to the Recognition and Enforcement of Foreign Arbitral Awards. Since the situs of the First Arbitration was England, an English court might well be the proper venue for such a challenge to be mounted. If the Respondent wishes to further its allegation as to "fraud" or "misleading" it might have a remedy before a court; but not before me, as an ICC arbitrator.
[51].
Those two findings, which I reach without hesitation, dispose, I think, of the claims made in these proceedings by the Claimant, and the attack by the Respondent upon the eighth award in the First Arbitration. I lack jurisdiction over either of them.
[52].
(c) Now let me turn to the two more detailed counterclaims made by the Respondent. Here, a closer analysis is needed and I repeat below at page 21 the text of those counterclaims.
[53].
At the outset of my consideration here I should say that amongst the first papers sent to me in this arbitration were "the Agreement" (the Contract of 1985), the Terms of Reference in the First Arbitration and the Award rendered in it. As to the Terms of Reference, they were detailed. As for the Award, I find it to be closely reasoned and, including the fact that the eighth award looked to the future conduct of the parties, comprehensive. An award which in any ordinary sense one would be regard as "final": a "final settlement", "the resulting award".
[54].
In light of that, I think the Respondent has had a heavy onus upon it to convince me that I should re-open or interpret any aspect of that Award. But that, in substance, it seems to me is what the Respondent seeks to do, and I laid some stress on onus of proof at the oral hearing.
[55].
Briefly, the Respondent’s case is put to me, in essence, in two ways. It is argued that this arbitration is, in effect, a continuation of the First Arbitration, that I am the successor to Mr Berkley in a re-constituted tribunal and that, just as he might have done, I can review, interpret, perhaps even amend, the First Award. (As to this point please see in particular what is said at page 2 of this Award). A number of cases have been cited to me to seek to establish that proposition, but I find that all of them concern arbitrations where the tribunal was still in being and hence still had jurisdiction, or could be re-constituted. In my view, that is not the case here. I am not Mr Berkley, nor am I his "successor" in any real sense. Under the ICC Rules, I am not an appellate judge. Before me now, I have different Terms of Reference, even a different number for this ICC Case. I reject the argument as to "continuity", again without hesitation.
[56].
However, it is also put to me that the Respondent’s counterclaims arise "in connection with the present contract" and the arbitration clause speaks of "all disputes". The Respondent says, in effect, that it’s detailed counterclaims "arise", as above, "in connection with the contract".
[57].
At first sight the Respondent’s argument looks attractive. Provisions in the contract are cited by the Respondent in its counterclaims. I am asked:

"(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).

[58].
The question to be answered here is whether I "have jurisdiction to rule" upon either or both of these counterclaims?
[59].
It is true that Paragraph 7 of the Contract is concerned with the payment of commission, while Paragraph 6 provides for certain set-off's. What matters, however, is that, as put to me now, the counterclaims arise not "in connection with the present contract", but in connection with the Award in the First Arbitration, its true interpretation, the parties’ conduct since that Award was rendered and the subsequent litigation in the United States which has occurred.
[60].
It seems to me that, wherever one looks in this particular case, one approaches a circular argument. In the broadest sense the Claimant’s case for the payment of damages by way of court costs in the U.S.A., the Respondent’s case as to "the spoiling" of the eighth award, and the detailed counterclaims of the Respondent; all - in the broadest sense - can be said to be "in connection with" the original agreement; but how close is the connection?. One can put the case this way. "Without the contract there would have been no dispute. Without the dispute there would have been no first proceedings in the U.S.A. Without that, no First Arbitration would have happened. Without that First Arbitration there would have been no First Award. Without that Award and the Respondent’s initial failure to honour it, there would have been no further proceedings in the U.S.A. Without all of that prior history, I would not now, as arbitrator, have to consider the question of my jurisdiction".
[61].
One moves further and further from the original contract ("the present contract"), from the original dispute, and from Mr Andrew Berkley’s decision. My own view is "thus far and no further".
[62].
In all the circumstances of this case, and after considerable thought - but not without some hesitation as to the Respondent’s detailed counterclaims - I find I have no jurisdiction to take this case further.

VII. The Order

[63].
In conclusion, having considered the written pleadings of the parties, the documentary evidence presented to me, and having taken into account the oral arguments and final written submissions of the parties, as arbitrator, I hereby order, for want of jurisdiction, the dismissal of:

(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).

[64].
I further order, and in taking into account the particular circumstances of the case: that: (a) the costs of these proceedings shall be shared equally between the parties, that is to say, the administrative costs of the Court of Arbitration of the ICC and the arbitrator’s fees and expenses, totalling $40,000

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.

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