"1. An Order permitting Vidatel (and, if so advised, [PT Ventures]) to adduce Angolan law expert evidence on the matters identified at paragraph 14 of the Sixth Affidavit of Michelle Duncan dated 24 April 2020... at the trial of the Recognition Claim commencing on 27 July 2020.
2. An Order (insofar as is necessary) that the matters identified at paragraph 14 [aforesaid] stand as an additional element of Vidatel's defence of the Recognition Claim.
3. Orders that:
3.1. Vidatel is to serve its Angolan law expert evidence by Friday 29 May 2020.
3.2. PT Ventures is to serve any Angolan law expert evidence in reply (if so advised) by Friday 26 June 2020.
3.3. By no later than 16:00 GMT on Friday 10 July 2020 the parties shall serve a joint memorandum signed by the Angolan law experts which records what matters are agreed and what matters in dispute. For the matters that are in dispute, each Angolan law expert can explain briefly in the body of the joint memorandum the position which he or she adopts, and the reasons advanced to justify that position.
3.4. Each Angolan law expert may produce a short supplemental report arising from the above process and any such supplemental report shall be served by 16:00 GMT on Friday 17 July 2020."
"14.3 Vidatel wishes to contend that, as a matter of Angolan law, even if PT Ventures is correct in its assertion that the contractually agreed mechanism for appointing the arbitrators was invalid or inoperable as a matter of French law (which Vidatel denies), the consequence is not that the parties are to be taken to have agreed that the ICC Court could appoint five arbitrators itself. Rather, Vidatel wishes to contend that the effect of any such invalidity or inoperability was, as a matter of Angolan law (which governs the issue), either:
14.3.1 that the parties are to be taken to have agreed on some different mechanism for the appointment of the arbitrators to the one actually adopted, with the consequence that the Tribunal as actually appointed was not appointed in accordance with the agreement of the parties to the arbitration clause (which would provide a ground for refusal of recognition and enforcement of the Final Award under [the BVI Act]), or alternatively
14.3.2 that the arbitration clause was thereby rendered invalid as a matter of Angolan law (which would provide a ground for refusal of recognition and enforcement of the Award under [the BVI Act])."
"Prof. Mota Pinto was asked to consider how the arbitration clause would be construed, and what effect such a state of affairs would have, according to Angolan law, on the assumption that Angolan law is the system of law governing the arbitration clause. In response, Prof. Mota Pinto has explained as follows. Angolan law is a civil law system which is substantially similar to Portuguese law, and the Angolan civil code... is derived from and similar to the Portuguese civil code."
"6....Angolan law would consider the process of identifying the contractual effect of the assumed state of affairs as one of ‘gap-filling', since that state of affairs [French law requiring the ICC to appoint the five arbitrators] was not one which is catered for or in the arbitration clause itself. The [Angolan civil code] contains provisions which set out how a Court is to undertake such a process as follows.
7. First, the Court is required to identify whether there are any standard terms or special rules which apply to clauses of the sort of involved, so as to fill the gap in the clause. There is none applicable to the clause in question in this case.
8. Second, in the absence of any such terms or rules, the Court is required to consider what would have been agreed by the parties, acting in good faith, if they had thought about the situation which in fact arose. In order to do so, the matters the Court may take into account include the text of the clause, the purpose of the parties in agreeing it, pre-contractual negotiations and the way in which the contract is performed. It is possible that in considering such matters the Court may conclude that the clause should be regarded as void or ineffective, in particular if the Court concludes that the parties would not have agreed to such a clause at all if they had foreseen or understood the state of affairs which in fact pertained.
9. Prof. Mota Pinto has not expressed a concluded view on what the outcome of such an approach would be in relation to the arbitration clause, not least because that requires the application of the relevant Angolan law to the relevant facts, which is, of course, a matter for the BVI Court."
"Until 16 March 2020 when the Court dismissed PT Ventures' summary judgment application (in part) it was PT Ventures' position that there should and would be no trial of this matter at all, and that it ought to be disposed of summarily. Had that happened the question of whether or not there should be Angolan law expert evidence at trial would never have arisen." (Mr. Adkin's emphasis.)
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