Fidelity Management SA & Ors v Myriad International Holdings BV & Ors

MORISON J:

“... as a matter of general approach the courts strive to uphold arbitration awards. They do not approach them with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards and with the objective of upsetting or frustrating the process of arbitration. Far from it. The approach is to read an arbitration award in a reasonable and commercial way expecting, as is usually the case, that there will be no substantial fault that can be found with it.”

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis relative weight minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

“Irregularities stand on a different footing. Here we consider that it is appropriate, indeed essential, that these have to pass the test of causing “substantial injustice” before the Court can act. The Court does not have a general supervisory jurisdiction over arbitrations. We have listed the specific cases where a challenge can be made under this Clause. The test of “substantial injustice” is intended to be applied by way of support for the arbitral process and not by way of interference with that process. Thus it is only in those cases where it can be said that what has happened is so far removed from what could reasonably be expected of the arbitral process that we would expect the Court to take action. The test is not what would have happened had the matter been litigated. To apply such a test would be to ignore the fact that the parties have agreed to arbitrate, not litigate. Having chosen arbitration, the parties cannot validly complain of substantial injustice unless what has happened simply cannot on any view be defended as an acceptable consequence of that choice. In short, Clause 68 is really designed as a long stop, only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected.”

“(2) Serious Irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant:

.......

(d) failure by the tribunal to deal with all the issues that were put to it;”

“I do not consider that s.68(2)(d) requires a tribunal to set out each step by which they reach their conclusion or deal with each point made by a party in an arbitration. Any failure by the arbitrators in that respect is not a failure to deal with an issue that was put to it. It may amount to a criticism of the reasoning, but it is no more than that.”

8. He went on to conclude that the arbitration award did deal with the two main issues that were put to them. “Those were the fundamental issues in the arbitration and they are comprehensively dealt with in the award.”

9. This subsection has most recently been considered by Colman J in World Trade Corp v Czarnikow Sugar [2005] 1 Lloyd’s Rep.422. Mr Dunning QC submitted, I think rightly, that the following propositions may be extracted from this decision:

1. Section 68(2)(d) is “designed to cover those issues the determination of which is essential to a decision on the claims or specific defences raised in the course of the reference.”

2. HH Judge Humphrey Lloyd was correct in Weldon Plant Ltd v The Commission for New Towns [2001] 1 All ER 264 to state that

“Section 68(2)(d) is not to be used as a means of launching a detailed enquiry into the manner in which the tribunal considered the various issues. It is concerned with a failure, that is to say where the arbitral tribunal has not dealt at all with the case of a party so that substantial injustice has resulted, eg where a claim has been overlooked or where the decision cannot be justified as a particular key issue has not been decided that is crucial to the result. It is not concerned with a failure to arrive at the right answer to an issue.”

3. Arbitrators do not have to deal with every argument on every point raised; they should deal with essential issues.

4. “Deficiency of reasoning in an award is ... the subject of a specific remedy under the 1996 Act [section 70(4) of the Act]. It is accordingly self-evident that:

(1) failure to deal with an “issue” under section 68(2)(d) is not equivalent to failure to deal with an argument that had been advanced at the hearing and therefore to have omitted the reasons for rejecting it;

(2) Parliament cannot have intended to create co-extensive remedies for deficiencies of reasons one of which (section 68) was a general remedy which might involve setting aside or remitting the award in a case of serious injustice and one of which (s.70(4)) was designed to provide a specific remedy for a specific problem;

(3) the court’s powers under s.68(2) being engaged only in a case where the serious irregularity has caused substantial injustice, the availability of the facility to apply for reasons or further reasons under s.70(4) would make it impossible to contend that any “substantial injustice” has been caused by deficiency of reasons.”

5. Accordingly, s.68(2)(d) is confined in its application to essential issues, as distinct from the reasons for determining them;

6. “If one simply approaches that provision by asking whether that which has not been dealt with is capable of being formulated as an essential issue of the nature of what would be included in an agreed list of issues prepared for the purpose of a case management conference if instead of an arbitration the matters were to be determined in court, the answer should normally be obvious.”

12. Clause 2.1.5 of the Agreement provided as follows:

“Conditions Precedent

2.1 The obligations of the parties under this Agreement ... are conditional upon the satisfaction of the following conditions:-

.........

“1 Was the competition Condition fulfilled?

Did the decision of the GCC [the relevant Greek Committee] on the application under 4.e.3 of the Competition Law (“the Derogation”) satisfy clause 2.1.5 of the ... Subscription Agreement as interpreted under Dutch law?

1.1 Was the Derogation “such permission as might be required .. for the conclusion and implementation of the Subscription Agreement and all related agreements and transactions”?

1.2 Was the Derogation unconditional?”

Mr Dunning QC put the same issue in this way?

“ISSUE 1

Was an approval on the merits required in order to satisfy the requirement in the Competition Condition (“such permission as might be required ... for the conclusion and implementation of the Subscription Agreement and all related agreements and transactions; provided that this condition shall only be fulfilled if such approvals, licences or permissions are unconditional”) or was the derogation under Article 4e3 sufficient?”

This is what the Tribunal said, in relation to issues.

“7.2 The principal issue before the Tribunal was whether or not the Agreements constituting the Transaction had ceased to have effect by reason of the Competition Condition Precedent in Clause 2.1.5 of the Share Subscription Agreement and parallel provisions in the other agreements not having been satisfied in time. There were also issues concerning the application of Clause 2.2 in the event of it being held that the Transaction remained effective and that the Naspers parties had been in breach, and in relation to the contractual limitation of liability.

8.2 At the end of the oral evidence, the parties each submitted a list of the issues which in their view fell to be determined at this stage of the arbitration. The detailed expression of the issues was not agreed, but the substance of the issues clearly emerged. On the main point it became clear that there were three main issues:

“9. The Derogation

9.1 It is common ground that the Agreements fell to be interpreted in accordance with Dutch law, and that under Dutch law the process of contractual interpretation involves two stages:

(1) To seek to ascertain the subjective common intention of the parties (if any);

and

(2) If no common subjective intention emerges, to interpret the contract objectively, as it would be interpreted by a reasonable person in the position of the parties and against the background of all relevant circumstances.

9.2 The latter exercise is a consequence of the principle of reasonableness and fairness which pervades Dutch law, and which finds expression in the case of Haviltex in the following terms: “… the question as to how a written contract regulates the relationship between the parties and whether it leaves a gap that needs to be filled cannot be answered purely on the basis of a linguistic analysis of the provisions of the contract. After all, to answer this question, it is necessary to know which meaning parties could reasonably attribute to the provisions, and what they could reasonable expect from each other. It can also be important to know to which social circles parties belong, and the extent of the legal knowledge that can be expected from them.”

9.3 It is also common ground that in relation to the former exercise, it is legitimate to have regard not only to any expressed intention of the parties at the time of making the relevant contract, but also to their communications and conduct, both in the negotiation or “pre-contract” phase, and the performance or “post-contract” phase.

9.4 In relation to the latter exercise, it was agreed that the literal meaning of the words of the contract should be given considerable importance, especially in a commercial context. As was recognised by Professor Kortmann, certainty and predictability are guiding principles of Dutch contract law. However, this must be subject to the qualification that the literal meaning should not necessarily prevail to the extent to which it would offend against principles of reasonableness and fairness.

9.5 It appeared at more than one stage that the parties’ submissions were directed to a somewhat different question – namely, whether the parties intended or understood that a final decision on the Notification or a decision on the derogation application would suffice to satisfy the Competition Condition Precedent. However, in the view of the Tribunal, Mr Cohen was right to emphasise that, regardless of what the parties may have had in mind at any stage, the crucial question was whether the decision on the derogation announced on 22 October 2002 satisfied the terms of Clause 2.1.5, even though the possibility of the derogation may not have been in the minds of the parties either at the time when the Agreements were initially negotiated and concluded, when they were re-executed in an amended form on 9 September 2002, or when the last amendment was finally agreed giving the final extension of time.

9.6 Mr Dunning submitted that the parties demonstrated by their communications and conduct a clear mutual intention that the approval or permission required was a full and final positive approval which would permit the Agreements to be fully implemented, and that only an approval on the Notification would satisfy that intention.

9.7 Mr Cohen concentrated on the wording of Article 4 of the Greek Competition Law. According to his interpretation, the effect of a derogation under Article 4.e.3, was that it would no longer be unlawful for the parties to implement the transaction, and it was therefore sufficient.

9.8 In contending for a subjective mutual intention, Mr Dunning relied on the fact that NetMed had made it clear that it wanted positive clearance from the Greek authorities, and that, despite initial doubts as to whether or not consent was necessary, Alpha Digital eventually shared this intention. Such intention was further manifested by the Parties’ joint Notification of the alleged concentration on 16 September, by the fact that, when the initially optimistic timetable was not realised, extensions of time were expressed to be for the purposes of obtaining the decision of the GCC on the Notification, and the fact that, when on 15 October 2002 the possibility of a derogation being applied for was first raised, Mr Holter made it clear that this would not only require the agreement of his clients, but also amendments to the Agreements which would have to be discussed and agreed – a position from which Mr Papadimitriou did not apparently dissent.

9.9 It was common ground between the Dutch law experts that, even though one may have regard to “pre-contract” or “post-contract” communications or conduct in order to ascertain the parties’ common intention, the object of the exercise is to find their intention at the time of contracting. But it was also common ground that inasmuch as an amendment to or variation of a contract gives rise to a new contract different from that which formerly existed, it is the parties’ intention at the time of the amendment or variation which is crucial. We accept the submission of NetMed that, as at the date of the last extension of time on 11 October 2002, the Parties did indeed have a common subjective intention or understanding that only an approval pursuant to the Notification would suffice. However, since it is common ground that, until 15 October 2002 no-one had suggested the possibility of a derogation, so that it was not in the Parties’ minds, we do not think it is possible to conclude that there was a common subjective intention or understanding that a derogation would not suffice – if it should turn out in practice that it was “just as good” and in particular satisfied the requirements of the clause.

9.10 We therefore turn to the objective test and consider what would have been the intention and understanding of the notional “reasonable man”, in accordance with the Haviltex principle of Dutch law as propounded by the Supreme Court in that case.

9.11 So far as Mr Cohen’s reliance on the wording of the Greek Competition Law is concerned, it is clear that a derogation under Article 4.e.3 is not a final approval. Under Article 4.b.1 the parties were under an obligation to notify any concentration between undertakings, and under Article 4.d the GCC was under a legal obligation to examine the concentration and either approve it, prohibit it, or impose conditions. It was common ground that the fact that derogation had been granted would not relieve the GCC of that obligation. Although it is true, as Mr Cohen pointed out, that Greek Competition Law does not describe a derogation as either “temporary” or “provisional”, that, as the full text of the decision of the GCC on the derogation application clearly confirmed, is its true nature.

9.12 Mr Cohen relied on the admitted fact that favourable decision on a derogation application, although not binding, had invariably been followed in practice by a favourable decision on the relevant Notification. But, as Mrs Tarabikou made clear to the parties’ representative on 16 October, and as the Chairman or the GCC also made clear to the parties’ representatives at the hearing on 22 October 2002, the decision on the derogation was not final, and did not pre-empt the eventual decision of the GCC on the Notification which may differ from that on the derogation. It must be borne in mind that this was the first pay-TV merger to come before the GCC, and there is no doubt but that it was a very high profile case, in which not only were the interests of the general public involved, but in which there were powerful interests seeking to exert pressure on both sides. No doubt, had the Notification application not been withdrawn, not only would the lobbying behind the scenes have continued, but interested parties could have sought leave to make submissions to the GCC. As Mr Dunning urged upon use, any risk of a reversal of conditions (especially relation to the “non-completes” which were embodied in the Transaction) would be unacceptable to the NetMed, as would any outcome which would risk the matter having to be referred to Brussels with the inevitable further delay which this would involve.

9.13 Mr Cohen emphasised in another part of his argument that the Transaction was not “free of risk” so far as NetMed was concerned. That may be so, but NedMed made it clear that it was not prepared to accept any unnecessary risk in relation to Competition approval.

9.14 Mr Cohen, not surprisingly, relied on the terms of the decision communicated in short form to the parties on 22 October 2002, from which it appeared that the GCC had given its unconditional approval to the implementation of the Agreements. However, on closer examination, it is clear that the decision only grants permission or release from the obligation in paragraph 4.1 in respect of the materialisation [or implementation] of the concentration provided in the agreements referred to, without giving any ruling or guidance as to what aspects of which agreements did indeed constitute a concentration.

9.15 Furthermore, in the view of the Tribunal, this document cannot be looked at in isolation. It must be read against the background of the Report of Secretariat, signed by Mrs Tarabikou, in which, despite making a positive recommendation, she made it plain that the Secretariat had had insufficient time to consider all the material submitted, and reserved its position in relation to a number of aspects of the Transaction. This is not surprising if one bears in mind that Mrs Tarabikou had indicated that the Secretariat would not be in a position to produce its report to the GCC on the Notification until the end of November, whereas she was able to produce the Report on the derogation within about 6 days.

9.16 Those reservations may not have been highlighted in the decision communicated on 22 October, but that decision made it clear that the full text was to follow at a later date. When the full text was published, it became abundantly clear that, far from giving the GCC’s approval to the full implementation of the transaction (as in our view Clause 2.1.5 required), it only gave provisional approval to those aspects of the Transaction which constituted a concentration; and while the GCC expressed the view that the Subscriber Conversion Agreement fell within that description, it expressed similar reservations to those expressed by Mrs Tarabikou in respect of other aspects of the Transaction.

9.17 The question is not whether the requirements of Clause 2.1.5 would be satisfied by a derogation, but whether they were satisfied by the derogation granted in this case. The Tribunal concludes that the derogation did not satisfy the literal meaning of the wording of the Competition Condition Precedent in Clause 2.1.5.

9.18 It is common ground that, under Dutch law, the literal interpretation of the words used is not necessarily the end of the story – if that interpretation would be unfair or unreasonable in the eyes of the notional reasonable man in the position of the parties and in the light of all relevant circumstances. Thus, Alpha Digital’s expert Dutch lawyer, Professor Kortmann, after considering the facts and the Greek law to the extent to which he was briefed on those matters, expressed the conclusion, in his first Expert Report, that applying Dutch law to the circumstances of the case, the derogation did satisfy the requirements of the clause.

9.19 The Tribunal makes two observations on this conclusion. First, whilst the Tribunal is grateful for the considerable assistance provided by the Dutch law experts, it is the task of the Tribunal to seek to apply the relevant principles of Dutch law to the facts, but not necessarily to decide any issue as a Dutch judge would decide it, let alone to take account of how one of the parties’ experts would decide the point (however eminent that expert). Second, Professor Kortmann appears to have placed some reliance on the fact that an approval on a Notification would normally require a period of 3-6 months, while the parties had stipulated for a shorter period. But he was apparently unaware of the fact that a number of Notifications had been approved by the GCC within 45 days of the Notification, and that one was granted in as short a time as 16 days; nor was he apparently aware of the fact that the dates provided for in the Agreements as originally drafted, and in subsequent amendments, were agreed upon as a result of optimistic predictions on the part of the Alpha Digital, represented largely through Mr Anthony Papadimitriou, to the effect that political lobbying would secure approval within a very short time. Indeed, the last extension of time granted on 11 October 2002 was agreed to by NetMed following (and no doubt in reliance on) a representation from Mr Papadimitriou that informal approval had already been granted, and that formal written approval would be forthcoming within a few days.

9.20 In considering the application of principles of reasonableness and fairness, it is in the view of the Tribunal legitimate to have regard to the full history of the communication between the parties, which we have already summarised above, and which were relied upon by Mr Dunning as evidencing a subjective mutual intention.

9.21 There is the further, wider consideration that, if one were to construe the Agreements in a manner whereby the Competition Condition Precedent could be satisfied by a temporary, provisional derogation (even if the risk of a favourable decision on the derogation application not being followed by a favourable decision on the notification was sufficiently slight to be “shrugged off” by the reasonable man) what of the imposition of conditions, which decisions in similar cases in other European countries had shown were not unlikely?

9.22 Mr Cohen pointed out that the contract itself provided for the possibility of conditions being imposed, and adjustments having to be made to the contractual Agreements to cater for such conditions. But this submission ignores three matters:

9.23 If the parties’ respective rights and obligations under the Agreements were to be triggered by a derogation in the terms of that granted by the decision in the present case, there must have been a real perception of risk of some part of the deal having to be “unscrambled”, with the Naspers parties being left with something less than that for which they had bargained.

9.24 The Tribunal has no hesitation in reaching the unanimous conclusion that the Competition Condition Precedent was not satisfied by the grant of the derogation on 22 October 2002.”