" The shares in Unitel are and were held, one quarter each, by PTV, a Portuguese company; Vidatel, a BVI company; Geni SARL ("Geni"), an Angolan company, owned by a retired Angolan general; and Mercury Serviçios de Telecomunicações SARL ("Mercury"), another Angolan company. Mercury is a wholly-owned subsidiary of Sonangol, Angola's state-owned oil and gas company. Sonangol has recently acquired majority ownership of PTV from a Brazilian company, Oi SA ("Oi"). Vidatel is owned by Ms. Isabel dos Santos. She is the daughter of a former president of Angola and is reputed to be the richest woman in Africa. More recently she appears to have fallen out with the Angolan state. On 23rd December 2019, an Angolan court granted an order of saisie conservatoire against her, including purportedly her beneficial ownership of Vidatel's shares in Unitel.
 The four shareholders held their shares pursuant to a shareholders’ agreement with an effective date of 15th December 2000. (PTV was then called Portugal Telecom International SGPS SA.) The agreement is in English and largely follows an English common-law style of drafting. The substantive rights given by the agreement I shall discuss in relation to the arbitration award. Of importance for the current application is the arbitration clause, clause 16. This follows clause 14, which is an ‘entire agreement’ provision, and clause 15, which provides for the shareholders’ agreement to be governed by Angolan law...
 Unitel commenced operations in April 2001 and grew to be the biggest mobile telephone company in Angola. Unitel declared a dividend every year (although the 2010 declaration was by way of a special dividend). These were paid to Mercury and Geni in Kwanza, the local Angolan currency, which is not freely convertible. However, PTV and Vidatel were entitled to payment in hard currency. There were delays in paying the hard currency dividends from the time of the 2010 special dividend. Between November 2012 and the date of the final award, PTV did not receive any dividend payment at all. (It refused to accept payment in Kwanza.) Although there were difficulties between the parties in 2006, matters started to become more tense in 2010. In 2014 relations between the parties broke down completely, when the other shareholders refused to vote on to Unitel’s board the director nominated by PTV. PTV complains that the other shareholders, in breach of the shareholders’ agreement, (mis)used their control of the board to prevent Unitel paying dividends to PTV.
 On 13th October 2015, PTV filed a request for arbitration with the International Chamber of Commerce ("the ICC"). In the request PTV submitted that, if the arbitration tribunal was composed as required by clause 16, namely with PTV, Vidatel, Mercury and Geni each nominating one arbitrator, this would breach the requirement of "égalité", a mandatory rule of French arbitration law, because it would effectively mean one arbitrator against three, with the president unable to use a casting vote. It invited the ICC to appoint all the arbitrators. If the ICC was against it on the question of égalité, then PTV nominated Mr. Laurent Lévy as its arbitrator.
 In its response to the ICC, Vidatel objected to any departure from the clause 16 procedure for appointing arbitrators. Vidatel nominated Dr. Matthieu de Boisséson as its arbitrator. Mercury and Geni supported Vidatel’s position on the constitution of the tribunal and nominated Dr. Maria Cristina Galhardo Vilão and Dr. Adelaide de Jesus Mata de Moura as their arbitrators respectively.
 PTV produced to the ICC an opinion from Prof. Charles Jarrosson, who is an eminent French lawyer-academic in the field of arbitration law. His opinion was that the constitution of the arbitration panel in accordance with clause 16 would be contrary to mandatory French law, because it would result in one PTV-nominated arbitrator against three respondent-nominated arbitrators. Whether he is right or not is the [main] issue under the first Paris defence. [Some additional arguments are also run under the first Paris defence.]
19] The ICC accepted Prof. Jarrosson’s view. Instead of accepting the four arbitrators nominated by the parties, it made its own selection of five arbitrators for the panel: Prof. Bernard Hanotiau, Prof. Dr. David Arias, Mr. Ferro, Prof. Luca Radicati di Brozolo, all as co-arbitrators, and Prof. Dr. Sachs, as president. This arbitration panel then proceeded to determine the arbitration."
"16.1 Any claim, dispute or other matter in question between the Parties with respect to or arising under this Agreement or the breach thereof, shall be decided by arbitration, by a panel of five  arbitrators, one to be designated by each Party, and the fifth one to be designated by the other four arbitrators, provided, however, that if no agreement between the arbitrators designated by the Parties is reached, the independent arbitrator shall be designated by the President for the time being of the International Chamber of Commerce. Such arbitration shall be in accordance with Rules of the International Chamber of Commerce. Any such arbitration shall be conducted in English in Paris.
16.2 The independent arbitrator shall have a casting vote."
"le principe de l’égalité des parties dans la désignation des arbitres est d’ordre public; qu’on ne peut y renoncer qu’après la naissance du litige..."
["the principle of equality of the parties in the appointment of arbitrators is a matter of public policy, that can only be waived after the dispute has arisen..."]
It was against public policy, the court held, to force BKMI and Siemens to "share" one arbitrator.
"Article 11 : General Provisions
11.1 Every arbitrator must be and remain impartial and independent of the parties involved in the arbitration.
11.2 Before appointment or confirmation, a prospective arbitrator shall sign a statement of acceptance, availability, impartiality and independence. The prospective arbitrator shall disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator's impartiality. The Secretariat shall provide such information to the parties in writing and fix a time limit for any comments from them.
11.3 An arbitrator shall immediately disclose in writing to the Secretariat and to the parties any facts or circumstances of a similar nature to those referred to in Article 11(2) concerning the arbitrator's impartiality or independence which may arise during the arbitration.
11.4 The decisions of the Court as to the appointment, confirmation, challenge or replacement of an arbitrator shall be final, and the reasons for such decisions shall not be communicated.
11.5 By accepting to serve, arbitrators undertake to carry out their responsibilities in accordance with the Rules.
11.6 Insofar as the parties have not provided otherwise, the arbitral tribunal shall be constituted in accordance with the provisions of Articles 12 and 13.
Article 12: Number of Arbitrators
12.1 The disputes shall be decided by a sole arbitrator or by three arbitrators.
12.2 Where the parties have not agreed upon the number of arbitrators, the Court shall appoint a sole arbitrator, save where it appears to the Court that the dispute is such as to warrant the appointment of three arbitrators. In such case, the claimant shall nominate an arbitrator within a period of 15 days from the receipt of the notification of the decision of the Court, and the respondent shall nominate an arbitrator within a period of 15 days from the receipt of the notification of the nomination made by the claimant. If a party fails to nominate an arbitrator, the appointment shall be made by the Court.
12.3 Where the parties have agreed that the dispute shall be resolved by a sole arbitrator, they may, by agreement, nominate the sole arbitrator for confirmation. If the parties fail to nominate a sole arbitrator within 30 days from the date when the claimant's Request for Arbitration has been received by the other party, or within such additional time as may be allowed by the Secretariat, the sole arbitrator shall be appointed by the Court.
12.4 Where the parties have agreed that the dispute shall be resolved by three arbitrators, each party shall nominate in the Request and the Answer, respectively, one arbitrator for confirmation. If a party fails to nominate an arbitrator, the appointment shall be made by the Court.
12.5 Where the dispute is to be referred to three arbitrators, the third arbitrator, who will act as president of the arbitral tribunal, shall be appointed by the Court, unless the parties have agreed upon another procedure for such appointment, in which case the nomination will be subject to confirmation pursuant to Article 13. Should such procedure not result in a nomination within 30 days from the confirmation or appointment of the coarbitrators or any other time limit agreed by the parties or fixed by the Court, the third arbitrator shall be appointed by the Court.
12.6 Where there are multiple claimants or multiple respondents, and where the dispute is to be referred to three arbitrators, the multiple claimants, jointly, and the multiple respondents, jointly, shall nominate an arbitrator for confirmation pursuant to Article 13.
12.7 Where an additional party has been joined, and where the dispute is to be referred to three arbitrators, the additional party may, jointly with the claimant(s) or with the respondent(s), nominate an arbitrator for confirmation pursuant to Article 13.
12.8 In the absence of a joint nomination pursuant to Articles 12(6) or 12(7) and where all parties are unable to agree to a method for the constitution of the arbitral tribunal, the Court may appoint each member of the arbitral tribunal and shall designate one of them to act as president. In such case, the Court shall be at liberty to choose any person it regards as suitable to act as arbitrator, applying Article 13 when it considers this appropriate."
"Article 41: General Rule
In all matters not expressly provided for in the Rules, the Court and the arbitral tribunal shall act in the spirit of the Rules and shall make every effort to make sure that the award is enforceable at law."
"If there are more than two parties to the dispute and they fail to agree on the procedure for constituting the arbitral tribunal, the person responsible for administering the arbitration or, where there is no such person, the judge acting in support of the arbitration, shall appoint the arbitrator(s)."
It is common ground that this Article is applied to international arbitration by Article 1506 of the same Code.
"The principle of equality of the parties in the constitution of the arbitral tribunal, created by the Dutco decision, is a fortiori applicable to the present case, which is emblematic of a breach of equality between the parties. Thus, in the [current] case... the implementation of the arbitration clause would have led to the designation by the claimant of one arbitrator and the designation by the three co-respondents of three arbitrators. Accordingly, the implementation of the clause would have been incompatible with the principle of equality of the parties in the constitution of the arbitral tribunal. For this reason, the ICC Court adopted an approach that was most in line with the principle of equality... Indeed, if the ICC Court had implemented the arbitration clause as drafted it would have infringed the principle of equality of the parties in the constitution of the arbitral tribunal. In order to uphold the principle of public policy the clause could not be applied as it stood. To reiterate: a principle of public policy takes precedence over the will of the parties." (Prof. Racine’s emphasis and mode of emphasis.)
"...The process for appointing arbitrators may be different depending on the agreements of the parties, but each party must have had the right to express itself in an equal way on the process agreed upon. Moreover, if the parties do agree on the way in which the arbitrator’s contract must be formed in accordance with this principle of equality, then neither the arbitration institution nor the judge acting in support of the arbitration can override it.
 In appointing the five arbitrators itself, the International Court of Arbitration of the ICC violated the fundamental principle of the appointment of arbitrators by the parties, which its own Rules require it to apply.
 To admit, as my colleagues Jean-Baptiste Racine and Charles Jarrosson have done, that a potential consortium of co-defendants would have had the effect of violating the principle of equality of the parties, with the appointment of a larger number of arbitrators on the side of the defendant, amounts to a pure and simple denial of the Dutco case law. Equality would not be undermined by each defendant being able to appoint one arbitrator, just as the plaintiff could. On the contrary, the principle of equality would have been complied with because each party would have appointed one arbitrator, meaning that each party would have participated in the constitution of the arbitral tribunal on an equal footing." (Prof. Clay’s emphasis and mode of emphasis.)
Prof. Clay noted at para  that arbitrators, once appointed, are expected to be independent and that it is wrong to presume them biased in favour of the party appointing them.
"First, it could mean each party to the arbitration agreement having the right to appoint one arbitrator each. Second, it could mean each party to a dispute under the arbitration agreement having such a right. Third, it could mean each side to a dispute having such a right. In the first two cases, this would mean the original four arbitrators were the appropriate panel in accordance with égalité. Only in the last case would there be an argument for the approach taken by the ICC in appointing its own panel."
"that, when the arbitral tribunal is constituted: (i) each of the parties to the arbitration clause must be treated equally; or (ii) each of the parties to the dispute must be treated equally; or (iii) claimants, on the one hand and respondents, on the other, must be treated equally; or (iv) other?"
"that all parties should be treated equally. In the constitution of the arbitral tribunal, the parties to the dispute must be treated equally. Most of the time, the parties to the dispute are the parties to the arbitration clause, but not necessarily all the parties to that clause."
"intended to apply to multi-party arbitration. It therefore implies that claimants (if more than one) on the one hand and respondents (if more than one) on the other hand must be treated equally. In this case, attention must be paid to the procedural position of the parties depending on whether they are co-claimants or co-respondents. The claimant group must be treated in the same manner as the respondent group and neither should have an advantage over the other in the constitution of the arbitral tribunal. A pragmatic and concrete view on the principle of equality must be adopted and not a dogmatic and abstract view. It is not enough that each party has had the opportunity to appoint an arbitrator. Attention should be paid to the procedural positions and the existence of converging interests among the claimants and/or respondents".
"The principle laid down by the Dutco case applies from the execution of the arbitration agreement, since the Cour de Cassation specifies that it is possible to ‘waive it only after the dispute has begun’. Consequently, the principle refers to the situation where the parties are not yet in dispute and where they will agree in the arbitration agreement on the procedure for constituting the arbitral tribunal, which will have to comply with the principle of equality at this stage.
Therefore, the principle means that the parties must be treated on equal footing. The parties referred to in the arbitration agreement are the parties to the future dispute, but they will most often be the parties to the arbitration agreement. However, there will never be the claimants on one side and the defendants on the other, otherwise we find ourselves in the situation sanctioned by the Dutco decision. In this [sic : ‘that’ is intended] case, two respondents had been forced to agree on a common arbitrator, and it was sanctioned.
It is not at all the same thing as the situation where all the parties agreed in advance on the individual choice of an arbitrator per party. It is even the symmetrically opposite situation. The arbitration clause which guarantees that each party can appoint an arbitrator rigorously applies the principle of equality of the parties in the constitution of the arbitral tribunal, and therefore complies with the Dutco case law. Circumventing this solution is tantamount to breaching the principle of equality of the parties and therefore the Dutco case law."
"faced with an uncertain situation (where the parties did not agree on the extent to which their interests were aligned and in conflict), the ICC Court quite properly and in accordance with the spirit of its rules (and in particular Article 12(8)) and Article 1453 of the French Civil Code of Procedure,... took the safest course of appointing each member of the Tribunal itself: thereby ensuring that there would be equality as between the parties with regard to the constitution of the Tribunal."
"It’s not a discretionary power that is given the Court of the ICC in a strict sense, all the more so that the decision, the ultimate award might be submitted to a judge, in case of setting aside the proceedings. But prima facie [by which I think the witness meant 'in the first instance’] it’s up to the court — the ICC court — to assess the situation and to ascertain whether or not there is a convergence or a divergence of interests. Again, even at — if there is a possibility later on that there might be a setting aside of the award, in which case, of course, this assessment might be [rebutted]."
"Well, it [interpreting the clause to give the president three votes] would have re-established equality or could have re-established equality, but it would have been so ambiguous that this could have led to considerable risk if we had applied the clause as such [i.e. in such a way]. And if we had let the Tribunal decide on the issue then the three arbitrators appointed by the co-respondents should have agreed to getting a third of a vote and not the one vote. And I would add, by way of speculation admittedly, but that I doubt any rational arbitrator would agree to only getting a third of a vote and not a full one vote."
"Q. Well, suppose this, Professor Clay: suppose there is a dispute between three of the shareholders but not the fourth. Suppose there is a dispute between PTV, Vidatel and Mercury, but not Geni. It is no part of the Dutco principle that Geni would be able to nominate an arbitrator when it is not a party to the dispute.
Q. So I think we can therefore agree, can we not, Professor Clay, that the Dutco meaning does not have the first meaning identified by Mr. Adkin. It not a principle that requires each party to the original agreement to be entitled to appoint an arbitrator.
A. What we’re talking about is the right by the signatories involved in the dispute to appoint an arbitrator. If they're not involved in the dispute then there is no arbitrator. Equality, once again, is about the constitution of the Tribunal should there be a dispute. If there isn’t, then there’s no reason for them — for the signatories to appoint an arbitrator. I mean, imagine, there would be 20, 30, 40 signatories to the shareholders’ agreement and a dispute between two, of course the others wouldn’t be entitled to appoint an arbitrator."
"[T]here are many cases with multiple parties that are not necessarily true multi-party arbitrations, e.g., where multiple Respondents are under common control or otherwise have identical interests in the outcome of the arbitration. In such a case, the multiple entities concerned might more properly be seen as forming, in reality, a single Respondent party and there would not seem to be any legitimate reason why they should not normally be expected to agree upon an arbitrator.... It is questionable whether it would be appropriate to deprive the Claimant of an opportunity to nominate an arbitrator in such a situation."
"The principle remains that if the arbitration clause provides for three arbitrators, the multiple claimants jointly, and/or the multiple defendants jointly, nominate one arbitrator. If the parties fail to make a joint nomination and all parties are unable to agree on a method for the constitution of the arbitral tribunal, the [ICC] Court may appoint every member of the tribunal and shall designate one of them to act as chairman. The Court has full discretion to appoint any person it regards as suitable to act as arbitrator.
The new system is legally watertight and is welcome in practice. Contrary to the opinion of certain commentators, the Dutco decision did not state that the principle of the equality of the parties gave each party the right to appoint ‘its’ arbitrator. Each party will receive equal treatment where all the arbitrators are appointed by third parties. In fact it is probable that the Court will seldom need to appoint all three arbitrators, as the mere fact that it may do so will... encourage the parties to agree on the method of appointment... Furthermore, the appointment of all the arbitrators by the Court is only an option: the Court could consider that, because all multiple claims or multiple defendants have the same interests (as in the case of a parent company and its subsidiary), those parties are required to make a joint nomination of one arbitrator."
"[O]ne must be aware that, if there are no serious differences between the co-defendants, their failure to agree is the result of their own choice. It is not impossible co-defendants, not satisfied with the choice made by the plaintiff, may simulate an opposition to get rid of the arbitrator appointed by the plaintiff... [I]t would be more radical and probably more in keeping with the fundamentals of arbitration to substitute only the defaulting party."
"[t]he equality of the parties was broken at the time of the constitution of the arbitral tribunal: while one of the parties to the arbitration was free to appoint the arbitrator of its choice, the other two parties were not or, at the very least, their freedom was restricted on this point. Convergence and divergence of the interests of the co-defendants [are] irrelevant to the merit of the dispute, since the arbitrators are not the representatives of the parties that have designated them in the procedure. The principle of equality provides that each party has identical prerogatives with respect to the constitution of the arbitral tribunal."
"Q....There is an arbitration. The claimant appoints an arbitrator. There are two respondents. The respondents are parent and subsidiary. If they were required to appoint a joint arbitrator, would that infringe the Dutco principle?
Q. I want you to assume a similar situation. There is an arbitration. The claimant appoints an arbitrator. There are two respondents. They are completely separate commercial entities. If they were required to appoint a joint arbitrator, would that be a breach of the Dutco principle?
Q. I want you to consider a third situation, which [sic]. There is an arbitration. The claimant appoints an arbitrator. There are two respondents. And the respondents have agreed, in their contract with the claimant, that they will be treated as being indivisible. If the two respondents were required to appoint a joint arbitrator, would that be a breach of the Dutco principle?
"the appointment of a single arbitrator for two parties whose fate is tied, having signed the agreement indivisibly and jointly and severally and having no divergent interests, does not constitute a breach of equality between the parties."
"if [what is now Article 12.8] of the ICC Rules allows the [ICC] Court, as it does in this case, in the event of... multiple respondents and failure to appoint an arbitrator jointly, to appoint each of the members of the arbitral tribunal, it does not oblige it to do so; furthermore, the divergence of interests of the respondents consisting, on the one hand, of a company and on the other, the members of the liquidation committee, regarding the outcome of the arbitration, is not established, it being of little importance in this regard that the [four liquidators] are not bound by the arbitration agreement or that separate claims have been brought by [Redle] against them."
"[Mercury] submits that the Parties’ obligations under the Shareholders’ Agreement are not plural and solidary and therefore do not give rise to joint and several liability but ‘each party responds only for its acts.’"
At para  the tribunal recorded the same submission by Geni.
"In 2014, Portugal Telecom and the Brazilian telecom company, Oi SA, implemented a transaction by which Portugal Telecom sold its 75% stake in Claimant’s parent company, Africatel Holdings BV, to Oi, while Portugal Telecom acquired a stake of 37.3% in Oi. Respondents claim that the Shareholders' Agreement provides for a pre-emption right in case of indirect transfers of controlling shares in Unitel to a non-affiliated company and that, as a result of the transfer to Oi, Claimant would have been obliged to offer its shares in Unitel pro rata for sale to Respondents, because these shares were no longer held by an affiliate of the Portugal Telecom group.
As Claimant failed to do so, Respondents submit that Claimant committed a material breach of contract and a breach of Angolan law, which entitles Respondents to terminate the Shareholders’ Agreement vis-à-vis Claimant and to acquire Claimant’s shares at their net asset value."
"arbitration arises from the Respondents’ sustained efforts to wrongfully deprive PTV of its rights as a shareholder of Unitel..., a major Angolan mobile telephone operator. In addition to blatant breaches of the Shareholders' Agreement that have damaged PTV, the Respondents are also engaged in a scheme to loot Unitel of its assets and then to divert the proceeds to other business ventures that enrich the Respondents' insiders, in particular for the benefit of Isabel dos Santos, the daughter of Angola’s President."
Relief was sought against the three respondents jointly and severally.
"(i) PTV is in breach of a material obligation under the Shareholders’ Agreement by reason of the Oi acquisition;
(ii) upon a notice of termination being served upon PTV by all three Respondents terminating the Shareholders' Agreement PTV shall be obliged to negotiate in good faith with a view to selling its shares at net asset value..."
"23. Each prospective arbitrator or arbitrator must assess what circumstances, if any, are such as to call into question his or her independence in the eyes of the parties or give rise to reasonable doubts as to his or her impartiality. In making such assessment, a prospective arbitrator or arbitrator should consider all potentially relevant circumstances, including but not limited to the following:
• The prospective arbitrator or arbitrator or his or her law firm represents or advises, or has represented or advised, one of the parties or one of its affiliates.
• The prospective arbitrator or arbitrator or his or her law firm acts or has acted against one of the parties or one of its affiliates.
• The prospective arbitrator or arbitrator or his or her law firm has a business relationship with one of the parties or one of its affiliates, or a personal interest of any nature in the outcome of the dispute.
• The prospective arbitrator or arbitrator or his or her law firm acts or has acted on behalf of one of the parties or one of its affiliates as director, board member, officer, or otherwise.
• The prospective arbitrator or arbitrator or his or her law firm is or has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality.
• The prospective arbitrator or arbitrator has a professional or close personal relationship with counsel to one of the parties or the counsel’s law firm.
• The prospective arbitrator or arbitrator acts or has acted as arbitrator in a case involving one of the parties or one of its affiliates.
• The prospective arbitrator or arbitrator acts or has acted as arbitrator in a related case.
• The prospective arbitrator or arbitrator has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel to one of the parties or the counsel’s law firm." (Emphasis in original.)
"2. The Red List consists of two parts: 'a Non-Waivable Red List’... and ‘a Waivable Red List’... These lists are non-exhaustive and detail specific situations that, depending on the facts of a given case, give rise to justifiable doubts as to the arbitrator’s impartiality and independence. That is, in these circumstances, an objective conflict of interest exists from the point of view of a reasonable third person having knowledge of the relevant facts and circumstances... The Non-Waivable Red List includes situations deriving from the overriding principle that no person can be his or her own judge. Therefore, acceptance of such a situation cannot cure the conflict. The Waivable Red List covers situations that are serious but not as severe. Because of their seriousness, unlike circumstances described in the Orange List, these situations should be considered waivable, but only if and when the parties, being aware of the conflict of interest situation, expressly state their willingness to have such a person act as arbitrator...
3. The Orange List is a non-exhaustive list of specific situations that, depending on the facts of a given case, may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence... with the consequence that the arbitrator has a duty to disclose such situations. In all these situations, the parties are deemed to have accepted the arbitrator if, after disclosure, no timely objection is made...
7. The Green List is a non-exhaustive list of specific situations where no appearance and no actual conflict of interest exists from an objective point of view. Thus, the arbitrator has no duty to disclose situations falling within the Green List."
"114....Dr. Sachs undertook pursuant to Article 11(5) to carry out his responsibilities in accordance with the ICC Rules, one of which was Article 11(3) which required him immediately to disclose in writing to the Secretariat and the parties any facts or circumstances which might have been of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could have given rise to reasonable doubts as to the arbitrator’s impartiality, and which arose during the course of the arbitration. Dr. Sachs failed to comply with that obligation on a number of occasions:
114.1. In September 2016, Dr. Sachs should have disclosed that one of his partners, Mr. JLM Groenewegen of CMS Netherlands, had been approached to be appointed as PTIF's administrator.
114.2. In April 2017, Dr. Sachs should [have] disclosed that this same partner had been appointed as judicial administrator (bankruptcy trustee) of PTIF.
115. Dr. Sachs did not do so, breaching his disclosure obligation."
"93. In June 2016, Oi was the subject of a quasi-bankruptcy (restructuring) procedure in Brazil. According to media reports, it constituted, at the time, the largest restructuring in the history of the Brazilian economy with nearly US$20 billion in debt to be restructured. Mr. Ferro was aware that Oi was the true party to the dispute and that PT Ventures was merely an investment vehicle.
94. It is no doubt for this reason that, on 23 June 2016, Mr. Ferro informed the parties that the firm in which he was ‘partner’ was likely to be asked to advise and represent the judicial administrator who was to be appointed by the Brazilian courts in the restructuring of Oi and its subsidiary [PTIF], and that he thus consulted the parties in this regard:
On June 20th, Oi SA and its wholly-owned direct and indirect subsidiaries, among which [PTIF], have requested for judicial reorganization before Brazilian Court, as published on its ‘material fact’ on the company’s website... Although Oi SA and [PTIF] are not parties to this arbitration procedure, they are related to the Claimant. At this point, according to Brazilian Law, the Court is about to appoint a judicial administrator in order to help it during the course of the procedure. There is a possibility that members of Ferro, Castro Neves, Daltro & Gomide Advogados (‘FCDG’), of which I am a partner, be elected to provide legal services for the judicial administrator in Oi Reorganization..."
"98... Mr Ferro was therefore fully informed that any direct or indirect relationship that may exist between any of the members of the tribunal and Oi, PTV’s majority shareholder, or any of its companies, was a sensitive matter and likely to create a conflict that would be considered unacceptable."
"100. Mr. Ferro and his law firm were, as it appears, the regular counsel of Mr. Nelson Tanure, the most influential shareholder of Oi at the time of the arbitration, and of his companies. The connections between Mr. Tanure and Oi... may be summarised as follows:
100.1. Mr. Tanure is a well-known businessman in Brazil. He notably invests in distressed companies which he then attempts to turn around. He invested in Oi just before it was restructured, in June 2016. Oi's reorganization began in June 2016 and was still ongoing at the time of the arbitration.
100.2. According to the press, Mr. Tanure intended to resell his investment at a significant profit. He therefore attempted to influence the management of Oi from the time he invested in the company.
100.3. Mr. Tanure is a director and shareholder of Pharol. Pharol is a member of the Board of Directors of Oi. Pharol also owns around 25% of the capital of Oi.
100.4. Mr. Tanure is also the economic beneficiary of Société Mondiale Fundo de Investimento, which owned between 3% and 5% of Oi’s shares during the 2016-2018 period.
100.5. Mr. Tanure was himself an alternate member of the Oi Board of Directors as from 2016.
100.6. Mr. Tanure was described by a number of sources as a shareholder who controlled Oi despite holding a minority share:
‘In Oi’s case, it had two minority, but effectively controlling, shareholders that were actively involved throughout the restructuring process — the investment vehicles of Pharol, SGPS SA, the legacy owner of Portugal Telecom, and Nelson Tanure, a well-known activist shareholder in Brazilian restructurings who acquired his interests in Oi on the eve of its judicial restructuring. Pharol and Tanure exerted pressure on Oi's board throughout the process and ensured that each restructuring plan proposed by Oi’s board, over the course of nearly 18 months under judicial restructuring, would have effectively resulted in existing shareholders retaining 100% of Oi’s shares immediately post restructuring, while forcing creditors to either take massive principal haircuts or significant maturity extensions and interest rate cuts.’
100.7. The press also commented on his taking control of the Board of Directors, which occurred at the same time as the arbitration:
‘By the time the company collapsed under its massive debt load and filed for bankruptcy in June 2016, a global who’s who of distressed debt investors had bought in and frictions between shareholders and bondholders were coming into sharp relief... Among the former was Tanure's Société Mondiale, which had scooped up a chunk of the company’s shares and struck alliances giving him majority control of Oi’s board.’
101. Against this background, the existence of a very substantial arbitration involving a subsidiary that was majority-owned by Oi, i.e. PTV, was a key component of Oi's financial situation, in which Mr. Tanure had a direct interest. Further, Mr. Tanure himself had a direct interest in the matter since, according to a Material Fact released by Oi on 8 January 2019, it undertook, if it were to sell its stake in Unitel, to pay a portion of the amounts received from the sale to Pharol, a company in which Mr. Tanure owns shares and for which he acts as director, and the proceeds from the potential sale of PTV's share in Unitel were said by Oi to be directly contingent on its success in the arbitration.
102. Mr Ferro or his law firm have regularly represented Mr. Tanure's companies, having acted for the following companies:
102.1. JVCO, a company wholly owned by Mr. Tanure, which was involved in a major arbitration against Telecom Italia between 2012 and June 2016.
102.2. Sequip Participações, a company wholly owned by Mr. Tanure, which was involved in an arbitration between an entrepreneur, Paulo Roberto Franco Marinho, and Sequip Participações in 2011 and 2012.
102.3. Docas Investimentos, a company wholly owned by Mr. Tanure, from 2012 to June 2016 in a major arbitration against Telecom Italia, and according to the registries of the Brazilian courts (Diario da Justiça Eletrónico), from 2008 to 2016 in Norske Skog Pisa v. Docas Investimentos and Editora JB SA and from 2012 to 2013 in Docas Investimentos v. Amura Publicidade Marketing e Eventos Ltda. In its litigation against Telecom Italia, Docas was represented by Mr. Ferro himself, and Mr. Tanure was directly involved."
Already registered ?