Global Gaming Philippines LLC and Global Gaming Netherlands BV v Bloomberry Resorts and Hotels Inc and Sureste Properties Inc - UNCITRAL Arbitration - Order in Respect of Claimant's Interim Measures Application - 9 December 2014
GLOBAL GAMING PHILIPPINES LLC (AS ASSIGNOR)
GLOBAL GAMING NETHERLANDS B.V. (AS ASSIGNEE)
BLOOMBERRY RESORTS AND HOTELS, INC.
SURESTE PROPERTIES, INC.
ORDER IN RESPECT OF CLAIMANTS' INTERIM MEASURES' APPLICATION
The Arbitral Tribunal:
Mr. R Doak Bishop, Esq. (Arbitrator)
Mr. Michael Hwang, S.C. (Arbitrator)
Dr. Andrés Rigo Sureda (Presiding Arbitrator)
Table of Contents
- Procedural History
- Commencement of Proceedings
- Constitution of the Tribunal
- The Claimants' Interim Measures Application (the "Present Application")
- Procedural Orders issued to date
- The Interim Measures Hearing
- Chronology of Events
- Reliefs Sought by Parties
- Claimants' Reliefs Sought
- Respondents' Reliefs Sought
- The Parties' Arguments
- Claimants Arguments
- Respondents' Arguments
- The Tribunal's Reasoning
- The Unusual Procedural Posture and the Procedural History of the Present Proceedings
- The Burden of Proof on each Party
- Application of UNCITRAL Rules 2010 to the Respondents' Position
- The Applicable Test under the UNCITRAL Rules 2010
- The Respondents' case behind their proprietary claim to the Shares
- The Respondents' case on the possibility of dissipation of assets
- Application of UNCITRAL Rules 2010 to the Claimants' Position
- Irreparable Harm
- Operative Part
Commencement of Proceedings
6. On September 12, 2013, the Claimants filed their Notice of Arbitration ("NOA").
7. On October 12, 2013, the Respondents filed their Response to the Claimants' NOA ("Response").
8. On November 11, 2013, the Claimants filed their Defense to Respondents' Counterclaims ("Defense").
Constitution of the Tribunal
9. On December 6, 2013, Mr. R Doak Bishop was nominated by the Claimants as its party-appointed arbitrator.
10. On January 9, 2014, Mr. Michael Hwang S.C. was nominated by the Respondents as its party-appointed arbitrator.
11. On March 29, 2014, Dr. Andrés Rigo Sureda was appointed by the Parties following negotiations between the Parties.
The Claimants' Interim Measures Application (the "Present Application")
12. On April 14, 2014, the Claimants filed a Request for Interim Measures of Protection ("Claimants' Request").
13. In response, the Respondents sent the Tribunal a letter dated April 28, 2014 ("Respondents' 28 April Letter") arguing that they should not be required to respond to the Claimants' submission as if it were an application for Interim Measures, on the basis that the Claimants' Request was not an application for an interim measure under Article 26 of the UNCITRAL Rules 2010.
14. The Tribunal and the Parties had a teleconference to organize the proceedings on April 30, 2014 (at 9.30 am EST), during which the Parties and the Tribunal agreed, amongst other things, that the Tribunal would hear the Parties in respect of the issues raised in the Respondents' 28 April Letter, in accordance with the following timelines.
138. The Tribunal hereby:
(a) Restores the Parties to the status quo ante as of 15 January 2014, so that:
(i) The Second Philippine Court Order is hereby revoked or superseded by this Order; and
(ii) The Claimants are henceforth free to deal with the Shares, and this includes, out of an abundance of caution, the right to sell or dispose of the Shares at their discretion.
(b) Denies the Claimants' requests for reliefs under sub-paragraphs 230(b), (c) and (e) of Claimants' Request; and
(c) Defers the issue of costs incurred in respect of this Interim Measures Application to the next phase of the Arbitration.
139. The Tribunal emphasises that it makes no declaration as to the ownership of the Shares, and has not pre-judged any aspect of each side's pleaded case, and Parties shall have the full opportunity to ventilate their respective cases at the merits hearing. Accordingly, the Tribunal defers any decision as to the declaration of the legal and/or beneficial ownership of the Shares to the merits phase of the Arbitration (which is the appropriate phase in which to determine this question).
140. The Parties shall have leave to amend their respective claims and counterclaims as they deem necessary.
141. Considering the Order dated February 25, 2014 of the Regional Trial Court of Makati City, Philippines and Rules 5.9 and 5.13 of the Philippines Special ADR Rules, this Order of the Tribunal on Interim Relief issued in the instant arbitration proceeding in regard to the "Claimants' Request For Interim Measures of Protection Pursuant to Article 26 of the UNCITRAL Arbitration Rules" is deemed to have superseded the final Order dated February 25, 2014 of the Regional Trial Court of Makati City, Philippines. Accordingly, the Writs of Preliminary Injunction and Attachment issued pursuant to the final Order dated February 25, 2014 of the Regional Trial Court of Makati City, Philippines shall now be deemed to be vacated and lifted. This Order of the Tribunal on Interim Relief is in all respects substituted for and replaces that Order and the Writs of Preliminary Injunction and Attachment. The parties are directed to accordingly bring this resolution before the Philippine Court of Appeals in the case entitled "Global Gaming Philippines LLC vs. Bloomberry Resorts and Hotels, Inc., et al.", CA-G.R. SP No. 134340, and to the Regional Trial Court of Makati City, Philippines in the case entitled "Bloomberry Resorts and Hotels, Inc., et al. vs. Global Gaming Philippines LLC, et al.", Spec. Proc. No. M-7567 and to assure its implementation.