a) The City of St. Petersburg in the amount of USD 500,574, of which USD 451,708 comprises of costs for legal counsel, plus interest on the former amount pursuant to Section 6 of the Swedish Interest Act from the day of the Court of Appeal's judgment until the day of payment.
b) Joint Stock Company Rossiya Airlines in the amount of USD 76,568, of which USD 69,093 comprises of costs for legal counsel, plus interest on the former amount pursuant to Section 6 of the Swedish Interest Act from the day of the Court of Appeal's judgment until the day of payment.
c) Joint Stock Company Pulkovo Airport in the amount of USD 40,569, of which USD 36,609 comprises of costs for legal counsel, plus interest on the former amount pursuant to Section 6 of the Swedish Interest Act from the day of the Court of Appeal's judgment until the day of payment.
- When the arbitral tribunal, as an interim decision, reviewed Mr. S's right to bring his action, it stated that Mr. S had displayed an "impressive enthusiasm" during the Zurich hearing and that his assurance was "impressive", see paragraphs 123 and 124 of the interim decision of 8 February 2011 (case document No. 42).
- When the arbitral tribunal commented on the Zurich hearing, it stated that "[i]t is always particularly appreciated to have the presence of the persons who, at the time, dramatis personae", which statement was aimed at Mr. S, see paragraph 164 of the interim decision of 8 February 2011 (case document No. 42).
- The arbitral tribunal stated that Mr. S at the Stockholm hearing "eloquently" and with "charisma and enthusiasm" had argued his position as to whether he had fulfilled his obligations under the parties' agreement, see paragraph 441 of the arbitration award.
- The arbitral tribunal stated that Mr. S at the Stockholm hearing "possibly overly enthusiastic[ally]" had argued that the project was expected to generate substantial profits for the parties, see paragraph 737 of the arbitration award.
- The arbitral tribunal referenced Mr. S's "impressive entrepreneurial approach", "eloquence" and "enthusiasm" and that Mr. S "beyond doubt took center-stage" at the hearings in the arbitration and had become "unforgettable" for the participants in the arbitration, see paragraph 844 of the arbitration award.
[- Skiljenämnden anförde att Carl A. Sax var enligt egen utsago en "highly experienced lawyer and a highly 'sophisticated investor'" och att preskriptionsregler därför måste ha varit kända för honom, se punkt 674 i skiljedomen.]
- The arbitral tribunal stated that Mr. S, because he was a "most experienced lawyer" must have been aware that the issues in the arbitration award were not complicated and that the review was based on the most straight forward and most obvious legal principles, see paragraph 792 of the arbitration award.
- In its grounds for the decision, the arbitral tribunal held that Mr. S's claims under article 200.1 of the Russian Civil Code were "obviously – entirely non meritorious", see paragraph 784 of the arbitration award (case document No. 5).
- The arbitral tribunal stated that Mr. S's claims as investor were "the most unhelpful" and that he had "a zero chance of success", see paragraph 785 of the arbitration award (case document No. 5).
- The arbitral tribunal stated that general principles and starting points in the arbitration "must have been known" to Mr. S, see paragraph 792 of the arbitration award (case document No. 5).
- The arbitral tribunal stated that Mr. S had opened the arbitration "not in good faith, but indeed frivolously", see paragraph 789 of the arbitration award (case document No. 5).
1. Mr. MB said to Mr. S's counsel after his opening statement at the Zurich hearing: "Thank you, Andrew. I very much like your enthusiasm and you will see, unfortunately, the details are a little bit more complicated. Nothing that we are going to say should case any disrespect to [Mr. S's] achievement, but you will see, as we go on, it will be a little bit more difficult, a little bit, than you thought", see p. 17 of the transcripts of the Zurich hearing (case document No. 11).
2. During his opening statement, Mr. MB interrupted Mr. S's counsel by stating: "Can you understand how much our court reporter must suffer with your presentation?", see p. 26 of the transcripts of the Zurich hearing (case document No. 11).
3. Mr. MB made the following statement to Mr. S's counsel after having listened to the counsel to the respondents: "I hoped the case would be so simple as you depicted it this morning, Andrew, with your enthusiasm which I greatly admire, but we have some details here to look at.", see p. 36 of the transcripts of the Zurich hearing (case document No. 11).
4. Mr. MB interrupted Mr. S during his witness statement with the following comment: "Why do we sit here instead of in one of your beautiful hotels?", see p. 85 of the transcripts of the Zurich hearing (case document No. 11).
5. Mr. MB interrupted Mr. S during his witness statement by saying: "I know. I know. You are always a little bit taken too far by your enthusiasm – a little bit", see p. 35 and 36 of the transcripts of the Stockholm hearing (case document No. 12).
6. Mr. MB addressed Mr. S in particular prior to the Stockholm hearing by making the following statement: "So Carl, next time, don't be taken away by your enthusiasm and speak a little bit slower", see p. 106 of the transcripts from the Stockholm hearing (case document No. 12).
"Thank you, Maria. A fair statement. Only one question: When can I fly to St. Petersburg and land in the new Pulkovo airport? When?"
Examples of the light mood during the hearing was that also Mr. S made some lighthearted statements during the hearing, see the dialogue below;
THE CHAIRMAN: "All right. Mr. [S], welcome once again."
MR. S: "Thank you, Dr. [D]. I appreciate the opportunity to testify here and I, more than that, appreciate the opportunity of being able to do it in shirt sleeves." THE CHAIRMAN: "You can even --"
MR. S: "That's all right. I don't have to get that informal, but you now that all Americans are heat-sensitive".
THE CHAIRMAN: "Yes, indeed, we know."
- Expert witness Mr. THC and his witness statement were described by the chairman as "interesting and eloquent".
- The chairman described one of the expert witnesses, Professor O, as follows;
"Okay. Thank you so much. You gave a very eloquent, very interesting, very stimulating assessment. We could have listened to you up to midnight probably, but we are being thrown out in a couple of minutes."
"The provision in item 2 of the first paragraph of Section 34 on excesses of mandate takes aim at the framing of the arbitral tribunal's review of the merits of the matter submitted for arbitration. An example of an excess of mandate is that the arbitral tribunal goes beyond the parties' motions, another is that it has based its decision on a circumstance which has not been referenced by a party (Government Bill 1998/99:35 p. 145; cf., amongst others, Lindskog, Skiljeförfarande. En kommentar, 2005, p. 960 f.).
The parties can also by other means than motions and references limit the scope of the arbitral tribunal's review. For example, they can limit the arbitral tribunal's review to the application of a specific legal provision, or otherwise act to limit the scope of the review. Section 21 of the Swedish Arbitration Act provides that in these instances, the arbitral tribunal shall comply with the instructions of the parties, unless a deviation is justified. In the event that such a limiting instruction from the parties is disregarded, an excess of mandate has generally occurred (see Government Bill 1998/99:35 p. 146, cf., amongst others, Heuman, Skiljemannarätt, 1999, p. 616).
It is different for instructions that concern how the arbitration proceedings are to be carried out within the framing provided by arbitration agreement, motions, referenced circumstances and evidence. If the arbitral tribunal fails to comply with such instructions, it generally commits a procedural error under item 6 of the first paragraph of Section 34 of the Swedish Arbitration Act (see, e.g., Heuman, op. cit., p. 652 f., and Lindskog, op. cit., p. 965 f.). There could be several reasons underlying a provision in the arbitration agreement that the arbitration award shall contain grounds. The parties could also, in the absence of more detailed provisions on what the grounds should contain, have differing expectations on the arbitral tribunal's account of its reasoning. However, what the parties justifiably or not expect in respect of the grounds, and what could be considered generally accepted practices amongst arbitrators, must be separated from the issue of whether the arbitral tribunal's grounds are so insufficient as to cause grounds for challenge.
An account of sufficient grounds in an arbitration award is a safeguard of legal security, because it forces the arbitral tribunal to analyze the legal issues and evidence. However, the benefits of detailed grounds for the arbitration award must, as regards the issue of challengeability, be weighed against the interest of the finality of the arbitration award. A review of the merits of the arbitration award does not fall within the scope of challenge proceedings. In view of the foregoing, and since a qualitative review of the grounds would give rise to difficult questions on the limits of such reviews, only a total lack of grounds or grounds which having regard to the circumstances must be deemed so insufficient as to be equated to a complete lack of grounds could entail that a procedural error has occurred."
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