PT Ventures SGPS SA v Vidatel Ltd - Eastern Caribbean Supreme Court Claim No BVIHC COM 2015-0117 and BVIHC COM 2019-0067 - February - July - August 2020
EASTERN CARIBBEAN SUPREME COURT
BRITISH VIRGIN ISLANDS
IN THE HIGH COURT OF JUSTICE
CLAIM NO. BVIHC (COM) 2015/0117
CLAIM NO. BVIHC (COM) 2019/0067
PT VENTURES SGPS SA
2020 July 27, 28, 29, 31 August 13
 JACK, J [Ag.]: In this claim the claimant ("PTV") seek to register an arbitration award for US$646,445,968 (plus interest and costs) against the defendant ("Vidatel"). The award was made by an arbitral tribunal sitting under auspices of the ICC Court of International Arbitration in Paris. The final award is dated 20 th February 2019, but after discovery of an arithmetical mistake an addendum correcting the error was made on 30 th April 2019.
 Vidatel has challenged the award before the Cour d'Appel de Paris (an application to the appropriate French Court of Appeal being the appropriate procedure in France) and seek annulment of the award. The Cour d'Appel is likely to give its judgment in the early part of next year. An appeal (which is available as of right on a point of law) to the Cour de Cassation is likely to be decided in 2022.
 The current claim was commenced on 16 th May 2019. PTV seeks registration of the award pursuant to sections 81 and 84 of the Arbitration Act 2013, 1 which gives force of law to the New York Convention. 2 In February 2020 I heard an application for summary judgment issued by PTV. By a judgment delivered on 16 th March 2020, I rejected certain defences raised by Vidatel under BVI law ("the BVI defences"). However, I declined to give summary judgment on two defences ("the Paris defences"), which were the defences relied on in the annulment application to the Cour d'Appel. It is the Paris defences which I tried in the week of 27 th July 2020 and in respect of which I now give judgment.  The first Paris defence is that the arbitral tribunal was not properly constituted in accordance with the underlying agreement to arbitrate, contained in a shareholders' agreement of 15 th December 2000. Instead of the ICC Court accepting the four arbitrators nominated by the four parties to the shareholders' agreement (with the fifth to be selected by the four nominated arbitrators), the ICC Court appointed all five arbitrators itself. The second Paris defence is that two of the arbitrators, Klaus Sachs ("Prof. Dr. Sachs") and Marcelo Roberto Ferro ("Mr. Ferro"), were not independent and impartial. Both these defences are properly available to Vidatel under section 86(2)(e) of the 2013 Act (composition of the tribunal and independence of the arbitrators). 3 Vidatel participated fully in the hearings in the arbitration, but it is common ground that neither of these defences have been waived by Vidatel nor that Vidatel are estopped from taking either of the Paris defences in the current proceedings.