"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."
I do not need to set out clause 16.3.
"(1) Enforcement of a Convention award may not be refused except in cases mentioned in this section.
(2) Enforcement of a Convention award may be refused if the person against whom it is invoked proves
(a) that a party to the arbitration agreement was, under the law applicable to that party, under some incapacity;
(b) that the arbitration agreement was not valid,
(i) under the law to which the parties subjected it; or
(ii) if there was no indication of the law to which the arbitration agreement was subjected, under the law of the country where the award was made;
(c) that the person
(i) was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings; or
(ii) was otherwise unable to present his case;
(d) subject to subsection (4), that the award
(i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration; or
(ii) contains decisions on matters beyond the scope of the submission to arbitration;
(e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with,
(i) the agreement of the parties; or
(ii) if there was no agreement, the law of the country where the arbitration took place; or
(f) that the award
(i) has not yet become binding on the parties; or
(ii) has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.
(3) Enforcement of a Convention award may also be refused if
(a) the award is in respect of a matter which is not capable of settlement by arbitration under the laws of the Virgin Islands; or (b) it would be contrary to public policy to enforce the award.
(4) A Convention award which contains decisions on matters not submitted to arbitration may be enforced to the extent that the award contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.
(5) If an application for the setting aside or suspension of a Convention award has been made to a competent authority as mentioned in subsection (2) (f), the Court before which enforcement of the award is sought may,
(a) if it thinks fit, adjourn the proceedings for the enforcement of the award; and
(b) on the application of the party seeking to enforce the award, order the person against whom the enforcement is invoked to give security.
(6) A decision or order made by the Court under subsection (5) is not subject to appeal."
" The grounds on which enforcement of an award can be refused by reason of public policy are narrowly circumscribed. In Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Ras Al-Khaimah National Oil Co11, Sir John Donaldson MR said this:
'Considerations of public policy can never be exhaustively defined, but they should be approached with extreme caution. As Burrough J remarked in Richardson v Mellish,12 "It is never argued at all, but when other points fail.' It has to be shown that there is some element of illegality or that the enforcement of the award would be clearly injurious to the public good or, possibly, that enforcement would be wholly offensive to the ordinary reasonable and fully informed member of the public on whose behalf the powers of the state are exercised.'
 In IPCO (Nigeria) v Nigerian National Petroleum Corp13 in the context of arguments to the effect that a foreign award should be refused enforcement under s. 103(3) Arbitration Act 1996 [our section 86(3)], Gross J reiterated the extreme caution with which arguments to the effect that enforcement should be refused on public policy grounds should be approached. In that case he also considered an argument that because of errors allegedly made by the tribunal in its assessment of damages the award was so excessive and that its enforcement would be contrary to public policy. He dismissed the argument at paragraph 50, saying:
'I can take this point summarily. The [award debtor's] argument was that the tribunal's errors (amounting to misconduct) led to an award so exaggerated in size that its enforcement, against a state company, would be contrary to public policy. With respect, this complaint appears to lack substance. Were it soundly based, a mere error of fact, if sufficiently large, could result in the setting aside of an award. That cannot be right and I say no more about this topic.'
 Further, in considering whether there should be a refusal of enforcement of an award on the grounds of public policy, it is necessary to have regard to, and take into account, the strong public policy in favour of enforcing arbitral awards: see Westacre Investments Inc v Jugoimport-SPDR Ltd14."
"finds Vidatel and the other respondents to the arbitration liable for the acts of Unitel, the tribunal having concluded that Unitel would not have carried out certain acts if its board of directors were differently constituted, which constitution was a result of the breach of the shareholders' agreement relating to the appointment of directors. The liability for the acts of Unitel must rest with Unitel. In making Vidatel liable for the acts of the board of Unitel, the tribunal ignored the separate corporate personalities of Unitel and Vidatel. To recognise an award premised on the absence of separate corporate personality would... be contrary to the public policy of the BVI."
The skeleton then refers to Prest v Petrodel Resources Ltd.15
"[Vidatel] agreed with [PTV] that the requirements for establishing causation are contained in Article 563 of the Angolan Civil Code but maintains that [PTV] has failed to establish causation between the alleged breach of Article 9.1 [of the shareholders' agreement, the right to appoint directors] and the losses it claims. More generally, [Vidatel] submits that [PTV] is attempting to impose on [the] Respondents a vicarious liability and to override key principles of corporate law, such as the legal independence of corporations, the limited liability of shareholders and their non-liability for actions taken by the management of the company."
"PTV sought as its principal remedy a full buyout of its shares in Unitel at a price of US$2,176,615,000, which it claimed was the fair value for those shares as at 15 December 2014, the claimed date of breach. In the alternative, it sought damages in the same amount for breach of the shareholders' agreement.
These amounts were argued by PTV to be appropriate on the basis that by reason of the breaches of the shareholders' agreement PTV had been permanently deprived of all of its rights as a shareholder. PTV advanced no case that those rights had been lost in part, or only temporarily, so that some lesser amount of damages would be appropriate.
The tribunal rejected PTV's case as to diminution of the value of its shares. However, it then adopted its own approach, supposedly pursuant to some 'broad discretion' conferred by Angolan law, decided that PTV's shares had declined in value by precisely two-thirds, and applied its calculation of the resultant damage [assessing the amount payable at US$339.4 million].
This was an approach to the calculation of loss which was unheralded and on which Vidatel had no opportunity to advance evidence or make submissions. Put simply, in arriving at this critical element of the final award, the tribunal deprived Vidatel of the opportunity to present its case."
"[PTV] submits that the tribunal has a broad discretion in determining the amount of compensation, noting that Article 566(3) of the Angolan Civil Code provides that '[i]f the exact amount of damages cannot be ascertained, the court shall judge equitably within the limits it deems proven.' On that basis [PTV] argues that the tribunal may adjust the values and methods proposed by the parties based on its own assessment of the evidence on quantum and the circumstances of the case, 'with a view to ensuring that PTV is fully compensated for its losses.'"
"[Vidatel] further rejects [PTV's] argument that, if the tribunal finds that the current value of [PTV's] shares is not zero, it should use its discretion to arrive at a figure it considers satisfactory. [Vidatel] agrees with [PTV] that neither the Santander valuations nor the value recorded in Oi's accounts are reliable proxies for the 'as is' value of Unitel or [PVT's] share in Unitel. According to [Vidatel] both figures are subject to the same 'value-inflating bias'.
Contrary to [PTV's] position, however, [Vidatel] considers that it is not within the tribunal's discretion to calculate the 'as is' value of [PTV's] share or to grant compensation to [PTV] based on the difference between the 'as is' and 'but for' value; according to [Vidatel], the tribunal would thereby act ultra petita because it would decision on a claim that was not brought before it. In addition, [Vidatel] argues that Article 566(3) of the Angolan Civil Code does not excuse [PTV] from having to discharge its burden of 'proving the existence, nature and extent of its alleged loss.' [PTV's] claim for damages would thus have to be dismissed as unsubstantiated."
"To the extent that [PTV] receives payment these amounts [i.e. the damages in respect of unpaid dividends] from either [sic] of the respondents, it shall no longer claim payment of the same amount from Unitel."
Indeed, PTV offer an undertaking to this Court that, insofar as Vidatel has paid the award in respect of unpaid dividends, PTV will pay to Vidatel any monies received from Unitel in respect of those unpaid dividends.
"there is no public policy which requires the refusal of enforcement to an arbitral award which states and is intended to award compensatory damages, and where, even if the damages awarded are higher than this Court would consider correct..., that arises only as a result of an error of fact or law on the part of the arbitrators. The enforcement of such an award would not be 'clearly injurious to the public good' or 'wholly offensive to the ordinary reasonable and fully informed member of the public'. Furthermore, the public policy in favour of enforcing arbitral awards is a strong one, and, if a balancing exercise is required at all, outweighs any public policy in refusing enforcement of an award of excessive compensation. The labelling of such excessive compensation as 'punitive' or 'penal', as the [award debtor] seeks to do in this case does not alter this conclusion.
"(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means.
(2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case."
"that there are cases in which the default application of a rule of English law is simply too problematic to be appropriate, but that apart from the fact that a court should not 'invent' a rule of English law to be applied in default of proof of foreign law, no sharp line exists to define the limits of the principle that in default of sufficient proof, foreign law will be taken to be the same as English law."
"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..."]
Both BKMI and Siemens had a right to appoint their own arbitrator and it was against public policy, the court held, to force them to "share" one arbitrator.
"submits that the parties' obligations under the shareholder's 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.
"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 notes 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.
"In the absence of any application under section 103(2) [the equivalent of our section 86(2)], the respondent had no ground for resisting enforcement under section 103(2), unless the court 'considered it proper' to adjourn under section 103(5) [the equivalent of section 86(5)]. So the court could impose terms, on which alone it would 'consider it proper' to adjourn and would forego from enforcing the award."
"No proceeding by audita querela shall hereafter be used; but any party against whom judgment has been given may apply to the Court or a Judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded: and the Court or Judge may give such relief and upon such terms as may be just."
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