International Court of Arbitration of the International Chamber of Commerce ICC Case 18666/FM/MHM/GFG
Professor Bernard Hanotiau, Arbitrator
Avv. Prof. Sergio Maria Carbone, Arbitrator
Dr. Wolfgang Peter, President
III. THE ARBITRATION AGREEMENT
Article 11.13 of the Agreement for the Sale and Purchase of 480,400,000 shares representing 100 percent of the corporate capital of AGORÀ S.p.A. between Claimant Solvay Italy and Edison (formerly Montedison S.p.A. and Longside International S.A.) dated 21 December 2001 (hereafter the "Agreement" or "SPA") provides as follows:
Any dispute between the Parties hereto, arising out of or in connection with this Agreement, including its implementation, interpretation, termination or enforcement, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by 3 (three) arbitrators, who shall be appointed and be operating in accordance with the said Rules.
The arbitrators shall apply Italian substantive law and shall render their award "secondo diritto". The venue of the arbitration shall be Geneva - Switzerland. All proceedings of the arbitration, including arguments and briefs, shall be conducted in English and governed by Italian procedural rules applicable to international arbitrations.
The Sellers shall be treated to a single party and shall be entitled to appoint only one arbitrator." (Exh. C-1)
For the reasons indicated earlier in this Award, the Arbitral Tribunal found that Edison is liable for breaches of the representations and warranties under the SPA as they related to HSE laws.
The Arbitral Tribunal also found that compensation is due to Claimant for the Losses and Damages incurred up until 31 December 2016 and retained jurisdiction over the damages claims from 1 January 2017 on, together with the question of the interest applicable on the incurred Losses.
Further, the Tribunal joined its decision on the Parties' costs to the next quantum phase.
Before the start of the quantum phase, the Parties are requested to explore the possibility of an amicable settlement in respect to the Losses sustained by Claimant since 1 January 2017 and report to the Tribunal within 60 (sixty) days following the notification of this Award, either with a proposal for the Procedural Timetable of the next quantum phase or a proposal for an Award by Consent.
XI. DISPOSITIVE SECTION
For the reasons set out above in this Partial Award, the Arbitral Tribunal issues the following decisions:
a) The Arbitral Tribunal has jurisdiction to hear "Historical" Claims;
b) The Arbitral Tribunal orders Respondent to pay Claimant EUR 91,493,936, i.e. EUR 97,594,222 (para. 732) - EUR 2,576,320 (para. 813) - EUR 3,523,966 (para. 814) for the Losses and Damages incurred up until 31 December 2016 due to Respondent's breaches of representations and warranties under the SPA;
c) Respondent's request to strike out Prayer for Relief (e) is dismissed and the jurisdiction over damages claims since 1 January 2017, once substantiated and presented under Prayer for Relief (e) is reserved for the next quantum phase;
d) The decision concerning the interest applicable to Claimant's incurred Losses is joined to the next quantum phase;
e) The decision concerning the Parties' costs is joined to the next quantum phase;
f) All other claims and requests not specifically mentioned or reserved above are dismissed.