“Unless settled amicably, any dispute shall be settled by international arbitration. Unless otherwise agreed by both Parties: (a) the dispute shall be finally settled under the Rules of Commercial Conciliation and Arbitration 1994 of the Dubai International Arbitration Centre (b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules, (c) the arbitration shall be conducted in the language for communication defined in Sub-Clause 1.4 [Law and Language], and (d) the venue of the arbitration shall be Dubai.”
“This is with reference to submission of Performance Security by the Contractor, in accordance with Letter of Acceptance as stated above, which requires the Contractor to submit the Performance Security as soon as reasonably practicable. Therefore, please find attached herewith the Performance Security (Performance Bond) with Ref. AEPEB/GTY/1071080/A for the subject Project for your kind perusal.”
“The Respondent has failed to submit its Answer within 30 days as required in accordance with Article 5.1 of the Rules. Failure of the Respondent to file an Answer does not prevent the arbitration from proceeding, in accordance with Article 5.6 of the Rules. “Failure by the Respondent to submit an Answer shall not prevent the arbitration from proceeding pursuant to the Rules. However, if the Arbitration Agreement calls for party nomination of arbitrators, failure to send an Answer or to nominate an arbitrator within the time provided or at all will constitute an irrevocable waiver of that party’s right to nominate an arbitrator.” “Failure by the Respondent to submit an Answer shall not prevent the arbitration from proceeding pursuant to the Rules. However, if the Arbitration Agreement calls for party nomination of arbitrators, failure to send an Answer or to nominate an arbitrator within the time provided or at all will constitute an irrevocable waiver of that party’s right to nominate an arbitrator.”
“Referring to the Centre’s letter dated1 September 2010 , we note that the time limit granted to the parties for payment of their shares of the advance on costs has expired without having been received from the Respondent. Accordingly, the Centre grants the Respondent a further 10 days upon receipt of this letter to pay its share of the advance on costs, i.e. AED 528,500. We look forward to receiving the requested payment within the above-mentioned time limit. Should the Respondent fail to fulfil its payment within the additional time limit granted, the Centre will invite the Claimant to substitute for Respondent in paying the balance of the advance on costs in order for this matter to proceed. Constitution of the Tribunal The Executive Committee will be shortly invited to appoint a co-arbitrator on the Respondent’s behalf in accordance with Article 9.4 of the Rules.”
“The Centre informs you of the Executive Committee’s decision of today. The Executive Committee decided to appoint Dr Karim Hafez as co-arbitrator upon nomination of the Claimant and took the necessary steps for the appointment of the co-arbitrator on behalf of the Respondent.”
“Answer to the request for Arbitration The Centre notes that the time limit granted in accordance with Article 5.1 of the Rules expired without having received any Answer to the Request for [Arbitration] or request for extension of time pursuant to Article 5.7 of the Rules. Accordingly, the Centre cannot grant the Respondent a time extension to file an Answer to the Request. However, any Answer submitted by the Respondent will be taken into consideration by the Centre and forwarded to the Tribunal Constitution of the Tribunal The Centre notes that the Respondent nominated Mr. Hamid Gharavi as co-arbitrator. However, Article 5.6 of the Rules provides: “Failure by the Respondent to submit an Answer shall not prevent the arbitration from proceeding pursuant to the Rules. However, if the Arbitration Agreement calls for party nomination of arbitrators, failure to send an Answer or to nominate an arbitrator within the time provided or at all will constitute an irrevocable waiver of that party’s right to nominate an arbitrator”
“The Centre reiterates the content of its letter dated23 November 2010 informing the parties that the Executive Committee decided to let the matter proceed against the Respondent (i.e. MEYDAN LLC) in accordance with Article 6.2 of the Rules Accordingly the EC is prima facie satisfied that an Arbitration Agreement exists between the parties to the arbitration proceedings and “in such a case, any decision as to the jurisdiction of the Tribunal shall be taken by the Tribunal itself”
“6.1 The Tribunal therefore concludes that the Claimant should be given leave to amend the description of the Respondent to this Arbitration to “Meydan Group LLC (formerly known as Meydan LLC)” 6.2. The Claimant requests the tribunal to order Meydan Group LLC to produce a series of documents evidencing its status. In the view of the Tribunal the appropriate course is for the newly named Respondent to be given leave to serve a response to the request to Arbitration and thereafter for directions to be given for further pleadings. Questions of disclosure and production of documents will be considered thereafter.”
“It is noteworthy, that the Notice intentionally makes no mention whatsoever of these arbitral proceedings, particularly when it purports to cover exactly the same, inter alia, contract, the parties, the issues and the subject matters thereof (albeit disguised as introducing a mere new grounds for relief). The purported Notice served by the Claimant through the Dubai Courts has taken place over a year after the commencement of these arbitration proceedings in July 2010 and appears to attempt to ‘introduce’ an entirely new claim. In the circumstances, the attempted introduction of this wholly new claim is intended to severely prejudice Meydan Group LLC in circumstances where the same is being attempted deliberately after Meydan Group LLC has put on record its objections to the jurisdiction of this Tribunal and has indicated that it will not participate in these arbitration proceedings. Meydan Group LLC therefore has no opportunity to respond to this further claim, which should be disallowed by the Tribunal in accordance with Article 26.1 of the DIAC Rules given the nature of the claim, the delay in making this claim and the intended prejudice to be suffered by Meydan Group LLC.”
“Honeywell have asked us to clarify that the Notice to which you refer is a notice of termination of their contract with Meydan pursuant to Clause 16.2 of the General Conditions of the Honeywell-Meydan Contract (FIDIC form).It was served through the court bailiffs’ service in order to ensure that an indisputable record of service would be available. It does not involve any commencement of court proceedings in relation to the said Contract or the making of any claim, although additional claims do accrue to Honeywell as a result of the termination (please see Clause 16.4 of the General Conditions). The formal notice of suspension served in July 2010 was, as you may recall, served via the same procedure. It was not necessary to draw the Tribunal’s attention to the termination of the Contract, although the fact of the termination would of course have become known at some stage during the proceedings.”
“…now write with the Claimant’s Amended Request for Arbitration, reflecting the Tribunal’s decision that the Respondent is properly referred to a “Meydan Group LCC (formerly known as Meydan LLC)”
“1. The Respondent named in the amended Request for Arbitration has failed to give notice whether it intends to participate in the arbitration, and has failed to provide its Answer to the Request by 30 October. 2. The Claimant should therefore, on or before 29 November, serve its Statement of Claim in accordance with the DIAC Rules. 3. The Claimant is also invited to propose dates for a hearing in Dubai, the hearing presently being estimated as requiring 3 days in February or March 2012. The Tribunal will give such other directions as may be necessary prior to any hearing.”
“We do not accept the Tribunal’s Directions. There is no provision in the DIAC Arbitration Rules for simply amending a Request. Accordingly the Request served on13 October 2011 constitutes a new Request altogether and our client has 30 days to submit its Answer, along with its comments with regard to the nomination of arbitrators. Our client will most probably nominate Mr Ali Ghosheh, of Counsel (Abu Dhabi) as its nominated Arbitrator. Please note, our client intends to contest the Claimant’s claims and make its own counterclaims.”
“The Respondent is, as usual, invited to send any comments both to the Tribunal and to the Claimant for its response. If the Respondent intends to maintain its previous stance that it will not participate in the hearing, it should please note the following (i) The Tribunal will continue to afford the Respondent the opportunity to be heard up to and including the hearing itself. However, any application the Respondent may choose to make must be made in a timely manner. Any application which would affect the hearing date is unlikely to be entertained once the hearing date is fixed. (ii) The Respondent is discouraged from repeating the grounds previously expressed for its decision so far not to participate. Those grounds are familiar to the Tribunal and are not accepted.” (i) The Tribunal will continue to afford the Respondent the opportunity to be heard up to and including the hearing itself. However, any application the Respondent may choose to make must be made in a timely manner. Any application which would affect the hearing date is unlikely to be entertained once the hearing date is fixed. (ii) The Respondent is discouraged from repeating the grounds previously expressed for its decision so far not to participate. Those grounds are familiar to the Tribunal and are not accepted.”
“101. The Tribunal has before it, as R-2, the formal legal opinion dated20 October 2012 issued by Dr. Louay Belhoul, the Director-General of the Dubai Government’s Legal Affairs Department in response to a request directed to him by the Dubai Courts on16 September 2012 to advise them on the legal nature of Meydan Group LLC. In his capacity as the Government’s senior legal officer acting pursuant to the functions of his office, Dr. Belhoul stated, as part of the factual background recited for the purposes of the opinion, “on8/12/2008 the company’s name was changed from Meydan LLC to Meydan Group LLC.”
“(i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001]1 All ER 91; (ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: [ED & F Man Liquid Products Ltd v Patel[2003] EWCA Civ 472 at [8],[2003] All ER (D) 75 (Apr) at [8]] (iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman (iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products Ltd v Patel at [101] (v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: [Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 , 76 Con LR 621; (vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: [Bolton Pharmaceutical Co 100 Ltd v Doncaster Pharmaceuticals Group Ltd[2006] EWCA Civ 661 ,[2007] FSR 631 ; (vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: [ICI Chemicals and Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 ,[2007] All ER (D) 115 (Jun).”
“It is important that a judge in appropriate cases should make use of the powers contained in Pt 24. In doing so he or she gives effect to the overriding objectives contained in Pt 1. It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.”
“(i) ... the person making the payment makes it to the agent of another person with whom he is dealing; (ii) ... he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) ... he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person’s agent: Industries & General Mortgage Co Ltd. v Lewis[1949] 2 All ER 573 at p. 575G. Thus, a bribe is “a commission or other inducement which is given by a third party to an agent as such, and which is secret from his principal”: Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Company Limited [1990] 1 Lloyd’s LR 166 at p. 169....”
“4.74 Given the large sum requested for payment, the timing of the request in relation to Honeywell’s appointment, and the knowledge I now have of TAK’s corrupt practices, I have since sought advice on the matter.”
“You had to issue 2 cheques… one non refundable tender collection and the second for approx AED 400,000 which is on award of the project… Who did the cheques have to be made out to? Meydan… TAK…?”
“6.1 Unless otherwise agreed by the parties, an Arbitration Agreement which forms or was intended to form part of another agreement shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and the Arbitration Agreement shall for that purpose be treated as a distinct agreement.”
“9.5 (b) In the absence of any agreed procedure, the two party nominated arbitrators shall agree upon the third arbitrator who shall act as Chairman, subject to confirmation and appointment by the Centre, as prescribed in this article.”
“18.4 The parties shall directly choose a chairman for the Arbitral Tribunal or shall ask the arbitrators to choose him, but if the parties or the arbitrators do not agree thereon, then the Committee shall appoint the chairman of the Tribunal.”
“For my own part, as a matter of construction I conclude that the parties in the present case agreed that there would be arbitration if required in China, and that such arbitration would be held under the rules of the relevant institution at the time when arbitration was invoked. In other words the parties have not used clear enough words to contract out of the prima facie construction of such clauses as laid down by the English cases to which I have referred.”
“It is also relevant to observe that the argument that the arbitration could only proceed under the provisional rules has been raised at a very late stage. When the plaintiffs invoked arbitration the new CIETAC rules were sent to Balli. Balli did not at that stage say that they had only agreed arbitration under the FETAC provisional rules. They never gave any reason for refusing to participate in the arbitration. They waited until the award had been made and proceedings were brought to enforce that award. The plaintiffs were never given any opportunity to consider what action, e.g. an ad hoc arbitration or litigation in England, might be appropriate in the light of an argument that any arbitration had to take place under the old FETAC provisional rules and in no other way. … A party who, only at the door of the enforcing Court, dreams up a reason for suggesting that a convention award should not be enforced is unlikely to have the Court’s sympathy exercised in his favour, and for this reason also I would not on the facts of this case be prepared to refuse the enforcement of the award.”
“The Committee grants the parties a maximum period of 21 days to appoint a chairman of the Tribunal; otherwise it shall do so by itself in accordance with the provisions of Article 18 of these Rules.”
“Clause 20.6 of the FIDIC Conditions (as modified by the Particular Conditions of Contract) provides that the rules of the dispute shall be the Rules of Commercial Conciliation and Arbitration 1994 of the Dubai International Arbitration Centre (‘DIAC’). As of7 May 2007 , new DIAC arbitration rules came into effect, issued by Decree no. 11 2007.The DIAC Arbitration Rules 2007 now replace the once applicable Rules of Commercial Conciliation and Arbitration of Dubai Chamber of Commerce and Industry No. (2) of 1994.”
“2.1 Where the parties have agreed in writing to submit their future or existing disputes to arbitration under DIAC Rules they shall be deemed to have submitted to arbitration in accordance with the following rules (“the Rules”) being those in effect on the date of commencement of the arbitration proceedings or such amended rules as may have been adopted hereafter, unless they have expressly agreed to submit to the Rules in effect on the date of their arbitration agreement.”
“Where a major reconstruction takes place, as it did with the companies involved in the Meydan City Project, with a change of name, objects, assets and ownership, then it is quite likely that the courts in the UAE would accept an argument that the pre reconstruction and the post reconstruction entities are different legal entities.”
“It must not be too closely assimilated to western company law as Middle East legal systems, and particularly those in the Arabian Peninsula, do not regard companies and their juristic personality with quite the same rigidity as western company law.”
“Under section 103(2)(b) of the 1996 Act/article V(1)(a) of the New York Convention, when the issue is initial consent to arbitration, the court must determine for itself whether or not the objecting party actually consented. The objecting party has the burden of proof, which it may seek to discharge as it sees fit. In making its determination, the court may have regard to the reasoning and findings of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them.”
“3.7 It is noted that the Statement of Claim includes claims not referred to in the Request for Arbitration, notably the claim based on termination. The facts relevant to this claim arose after the Request was served. Article 26 of the DIAC Rules allows the introduction of new claims “unless the Tribunal considers it inappropriate to allow such amendment having regard to its nature, the delay in making it, the prejudice that may be caused to the other party and any other relevant circumstances”. 3.8 The claim based on termination could not have been included in the Request, since it arose more than a year later. The Tribunal is satisfied that the Claimant has not delayed in bringing the claim and further that there is no prejudice to the Respondent, which has not raised any objection to its inclusion in the arbitration. The Tribunal does not consider it inappropriate to allow the new claim and therefore allows the inclusion of the termination claim.”
“26.1 Subject to any contrary agreement by the parties, either party may amend or supplement its claim, counter-claim, defence during the course of the arbitration, unless the Tribunal considers it inappropriate to allow such amendment having regard to its nature, the delay in making it, the prejudice that may be caused to the other party or any other relevant circumstances. 26.2 After the submission of the Statement of Claim and Defence and Counterclaim, no party shall make new claims or counterclaims, unless authorised to do so by the Tribunal, which shall consider the nature of such new claims or counterclaims, the stage of the arbitration and any other relevant circumstances.”
“Both the Convention and the Act clearly contemplate that the curial court is or may be invested with and capable of exercising a supervisory power whilst leaving to the enforcing court a discretionary power (a) to permit a pending supervisory process to continue and (b) to refuse enforcement of the award if it results in the award being suspended or set aside.”
“…section 103(2)(f) is only applicable when there has been an order or decision suspending the award by the court in the country of origin of the award (“the country of origin”). Section l03(2)(f) is not triggered automatically by a challenge brought before the court in the country of origin. This conclusion flows from the wording of section l03(2)(f) itself, it is supported by leading commentators (Van den Berg, The New York Convention of 1958 (1981), at page 352, Fouchard Gaillard, Goldman on International Commercial Arbitration (1999), at pages 980 - 981) and it is consistent with the provisions of sections 103(5)of the Act - which would be otiose, or at least curious, if an application to the court in the country of origin automatically resulted in the award being suspended.”
“Each party shall provide in its internal law for the possibility for all parties to a contract whose consent has been undermined by an act of corruption to be able to apply to the court for the contract to be declared void, notwithstanding their right to claim for damages.”
“The principal has alternative remedies against both the briber and the agent for money had and received where he can recover the amount of the bribe or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given: Mahesan s/o Thambiah v Malaysia Government Officers’ Housing Co-operative Society Ltd[1979] AC 383 . Furthermore the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made: Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha and Telegraph Works Co (1875) LR 10 Ch App 515,527,532-533.”
“The English Court is bound by a statute, arising from treaty obligations, to enforce the award. The presence of assets in the jurisdiction is not a precondition under the statute to the enforcement of the award. It ought not to be regarded in the exercise of the Court’s discretion as a pre-requisite to the granting of leave to serve out of the jurisdiction. A contrary view would in effect introduce into the statute, which carefully reflects our treaty obligations, a precondition which is not to be found in the 1958 New York Convention.”
“As far as the Claimant was aware, the Defendant’s name was “Meydan LLC”, not “Meydan Group LLC”