ABB Ag v Hochtief Airport GmbH & Anor, Court of Appeal - Commercial Court, March 08, 2006, [2006] EWHC 388 (Comm)
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ABB Ag v Hochtief Airport GmbH & Anor, Court of Appeal - Commercial Court, March 08, 2006, [2006] EWHC 388 (Comm)
Neutral Citation Number: [2006] EWHC 388 (Comm)Case No: 2005 Folio No. 670IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCOMMERCIAL COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 08/03/2006Before :MR JUSTICE TOMLINSON- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -David Waksman QC (instructed by CMS Cameron McKenna LLP) for the ClaimantChristopher Style, Solicitor-Advocate of Linklaters for the First DefendantThe Second Defendant did not appear and was not representedHearing dates: 19 and 20 January 2006- - - - - - - - - - - - - - - - - - - - -Mr Justice Tomlinson : Introduction1. The court has before it a challenge to an award made by three professional lawyer arbitrators sitting as a tribunal to resolve an international commercial dispute. The arbitrators described the dispute as ``a very high profile case, ..... which will have considerable impact not only on the business of Hochtief and ABB, but will also no doubt have a very considerable impact in Greece.'' The arbitration was conducted according to the Rules of the London Court of International Arbitration, hereinafter the ``LCIA Rules'' which in Article 26.9 include an irrevocable waiver of the right to any form of appeal, review or recourse to any State court or other judicial authority, insofar as such waiver may be validly made. The seat of the arbitration was London. The matters referred to arbitration were, so far as now relevant, governed by Greek law. By direction of the tribunal the International Bar Association (hereinafter ``IBA'') Rules on the Taking of Evidence in International Commercial Arbitrations were to apply. The challenge is made pursuant to s.68 of the Arbitration Act 1996 on the ground of serious irregularity. It is not suggested that the challenge is, by reason of Article 26.9 of the LCIA Rules, incompetent. However the bald recitation of the nature of the arbitration alone indicates that the court is operating in territory in which judicial restraint and sensitivity is required. 2. The Claimant ABB AG is a German company in the electrical industry. It was the First Respondent in the arbitration. The First Defendant Hochtief Airport GMBH to which I shall refer hereafter as ``HTA'' or ``Hochtief'' is a German construction company. Strictly it was an associated Hochtief company which carried out the relevant construction work but nothing turns on this. HTA was the Claimant in the arbitration. The Second Defendant Athens International Airport SA hereinafter ``AIA'' is the company which owns and operates the new Athens International Airport which opened in March 2001. AIA was the Second Respondent in the arbitration. It took no part in the arbitration and no part in the application before the court.3. The Greek State owns 55% of the shares in AIA. HTA holds 40%. ABB at one time held and if the arbitrators' award stands still holds the remaining 5%. I am told that the holding of 5% of the shares is of great potential significance. There are apparently matters which can be accomplished by a vote of 60% of the shares which cannot be accomplished with only 55%. 4. In 2004 ABB purported to transfer its 5% holding to a Greek company Horizon Air Investments SA, a company in the Copelouzos Group of companies. I shall refer to this company hereinafter as ``Horizon.'' The consideration for the transfer was 23 million. The suggestion is that the Copelouzos Group has close links to the Greek State and might therefore be expected to vote its shares together with the 55% State holding.5. The arbitration was commenced by HTA in order to challenge the validity of the transfer of the shares. The arbitrators by their award declared that ABB's purported transfer of its shares in AIA to Horizon is null and void and further declared that AIA's purported registration of ABB's purported transfer is null and void. My understanding is that for the reasons set out above this has considerable implications for the parties and perhaps also for the Greek State.6. The claim to impugn the transfer was complex and changed significantly part-way through the arbitration which in consequence was conducted in two sessions, 8 and 9 December 2004 and 16 March 2005. The parties then exchanged written Final Submissions in lieu of oral submissions at the conclusion of the evidence. The award is dated 19 July 2005. 7. In order to understand the nature of ABB's challenge to the award it is necessary to understand the issues which arose in the arbitration and the course which the arbitration took. For that purpose I propose substantially to adopt paragraphs 7 - 50 of the First Witness Statement of Guy Pendell, a solicitor acting on behalf of ABB. I believe that account to be largely non-controversial, although HTA would I think say that it is in some respects incomplete. For the purpose of setting the scene it will suffice.A The Bac...See the full content of this document
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