"… [T]he Aqaba Container Terminal … is a public utility. [It] is the only Jordanian Container Terminal and the backbone of logistic transport and shipping sector and national economy and engine for [Aqaba Special Economic Zone Authority ("ASEZA")] being the main gate of the Jordanian market and the vital port of goods' transport from/to other countries in the region."
"20.4 If a dispute (of any kind whatsoever) arises between the Parties [ie Soletanche and ACT] in connection with or arising out of the [Construction Contract] or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer, either Party may refer the dispute in writing to the [Dispute Adjudication Board] for its decision, with copies to the other Party and the Engineer …
20.6 Unless settled amicably, any disputes in respect of which the [Dispute Adjudication Board's] decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties:
a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce,
b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules, and
c) the arbitration shall be settled by three arbitrators in the language for communications defined in Sub-clause 1.4 (Law and Language)
d) the arbitration shall take place in London, England."
"The [JDA]… entitled [APM Moller Jordan] the ownership, management, operation of the Aqaba Container Terminal is a Concession Agreement to manage and invest a public utility according to the Definition set out in Article (117) of the Constitution. The word "concession" provided in Article (117) of the Constitution means conferring an exclusive right to a specific body which body could be a company or individual or a government or a non-governmental entity for the purpose of investing in mines, minerals or public utilities within its public boundaries ….
The [JDA] has not gone through the constitutional framework and no law endorsing the [JDA] was passed according to the requirements of Article (117) of the Constitution. Rather, the [JDA] was signed by [ADC] and [ACT] without passing through any procedures and/or the constitutional channels described in Article (117) of the Constitution which provides "Each concession that confers any right related to the investment of mines, minerals or public utilities shall be endorsed by a law."
[T]he [JDA] was signed based on Article (17) of ASEZ Law No. (32) of 2000 in breach of Article (117) of the Constitution …
…[ADC] ignored the constitutional channels described in Article (117) of the Jordanian Constitution by relying on Article (17) of ASEZ Law referred to above. Hence, Article (17) of ASEZ Law is a provision in breach of the Constitution's provisions."
"This Statement revolves around the annulment of the Agreement signed by [Soletanche] and [ACT] [i.e. the Construction Contract] based on the unconstitutionality of the provision that established [ACT] and conferred [ACT] the right of concession over a public facility."
"Pursuant to the [JDA] …, [ACT] on 16/8/2009 issued a tender to invite construction companies to submit their bids for the execution of Aqaba Container Terminal infrastructure works. In the tender, [ACT] stated it is the party entitled to own, manage and develop the Aqaba Container Terminal, and is entitled to enter into necessary contracts for that purpose. The Parent Company of [Soletanche] submitted their bids in the tender of [ACT] under the belief that [ACT] is the owner and the rights holder to offer such tenders and to enter into contracts with third parties for that purpose.
[ACT] issued the decision of award to [Soletanche] … A construction contract [ie the Construction Contract] was signed to execute [the Works] for the Aqaba Container Terminal expansion …
The work of the … [Construction Contract] … was halted. The [Construction Contract] was terminated by [ACT] ….
[Soletanche] is claimed of millions of Dinars by [ACT]. [Soletanche] has interest to prevent being claimed such amounts based on the invalidity of the [Construction Contract] and the invalidity of the agreement from which the incorporation of, and the entitlement of [ACT] to own and manage the Aqaba Container Terminal, was derived, being unconstitutional.
There is serious intention to advance the plea of unconstitutionally of conferring the concession to [ACT]. If the concession agreement granted to [ACT] is declared unconstitutional, this will result in the invalidity of the development agreement based on the violation of the foundation by which [ACT] came about and for the breach of the formality required by the law for the conclusion of this agreement. This means that if the principle [sic., according to the translation] fails, the accessory also fails.
[Soletanche] filed this Claim to declare the annulment of the [Construction Contract] signed between [Soletanche] and [ACT] based on the invalidity and unconstitutionality of concession agreement signed pursuant to Article (17) of ASEZ Law which is expressly in breach of Article (117) of the Jordanian Constitution.
In addition to contract being null for the failure to satisfy the legal requirements, there is a constitutional reservation encompassing the agreement and the authority and ownership of [ACT] over the Aqaba Container Terminal."
(1) A declaration that Soletanche "breached the Arbitration Agreement by seeking to obtain a declaration (or equivalent remedy) as to the invalidity and/or invalidation of the [Construction Contract] in the Jordanian Proceedings".
(2) An injunction restraining Soletanche "from taking any step(s) directly or indirectly to obtain a declaration (or equivalent remedy) as to the invalidity and/or invalidation of the [Construction Contract] in the Jordanian Proceedings" (or otherwise than in accordance with the Arbitration Agreement).
(3) An injunction requiring Soletanche to "take all steps to withdraw, discontinue or bring to an end" what it had done to obtain a declaration (or equivalent remedy) "as to the invalidity and/or invalidation of the Construction Contract in the Jordanian Proceedings".
"For the avoidance of doubt, paragraph 2 and 3 above does not restrain [Soletanche] from pursuing allegations in the Jordanian Proceedings as to the unconstitutionality as a matter of Jordanian law of specified legislative enactments(s) and/or decisions(s) taken by specified entities pursuant to such statutory power(s)."
a. A constitutional claim is the sole pleaded basis for Soletanche's claim to invalidate the Construction Contract in the Jordanian Proceedings. Mr Houseman QC adds that this does not mean it is the only available claim.
b. Soletanche needs to claim to invalidate the Construction Contract in order to have any arguable locus or standing to pursue a constitutional claim in the Jordanian Proceedings.
c. It follows from b. that if the final anti-suit injunction is granted in respect of Soletanche's pursuit of a claim to invalidate the Construction Contract then Soletanche will lose whatever right or standing it may otherwise have (which is disputed) to pursue the Jordanian Proceedings.
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