VISIONIC LTD
ON BEHALF OF THE RESPODENT
Respected members of the tribunal and opposing council, good morning my name is Emrah
Petkovic and together with my co counsel Faris Ruvic I will be representing the Respodent
Visionic ltd, in the case before you today. Our case concerns the fallout of what once was a
succesfull and lucrative buisness relationship which after ending left the Respodent in a unviable
position where they find themselfs a sealed by a number of unreasonable demands from the side
of the Claimant. These demands cover both procedural questions and substantive isssues as me
and my co counsel will demonstrate throuhgh our presentation On the matter of procedural issues
I will have two submissions:
1. The AT should not authorise the addition of a new claim
For this submission I will have the followoing points:
The requirements laid out in article 23(4) of the ICC rules are not met
My second point The additional requirements laid out in ToR are not met
2. The AT cannot and should not consolidate the proceedings
My points will be:
The AT does not have power to conosolidate proceedings
The criteria laid out in article 10 of the ICC Rules are not fulfilled
Starting with my first submission we will first lay out what the requirements for the additional
claim are, we can find those in Art 23(4) and in ToR and they are: indentical (equivalant) nature
of the claims, stage of the current proceedings and other relevant factors. In addition to these ICC
rules of arbitration requirements wwe also have the two requirements implemented by the parties
in ToR, in the form of noticable savings of costs and time. It is our submission that of these
requirements atleast two are not met and another two are questionable. To begin with we will
freely conceid that we are in early stage of arbitration however we would like to point out that the
requirement regarding the nature of the claims is not met. In case CBX and another v CBZ and
others the Court cautioned that any new claim or cause of action must require clear identification
and admission by the Arbitral Tribunal, even if that were only to occur by conduct rather than
express words or a pleading amandment.
Whitesell and Silva-Romero observe that for the ICC Court to decide that a single arbitration
shall proceed on the basis of multiple contracts, three criteria must be fulfilled. The first is that all
contracts must have been signed by the same parties. The second is that all contracts must relate
to the same economic transaction. Thirdly the dispute resolution clauses contained in the
contracts must be compatible. Although the claims share quite a few characteristiuc, they differ
significatly in some key points. Mainly the Pos relating to the two claims concern the sale of
different products. The sensors in PO2 are completely different products, and are both more
complex and more regulated. (millitary use). Furthermore, the nature of the dispute are
fundamentally different as the first claim concerns the non-performance of party, where s second
claim arises out of a question about partial performance and deffective products. These two
differences would present a significant challenge for the Tribunal as the nature of the sensors and
the question about their deffectivnes would require expert testimony and in the depth
understanding of the funcionallity of the highly advanced sensors. Additionally, it is crucial to
recognize that the New Claim was filed three months after the initial claim, at a later phase in the
arbitration process. Such a delay can have a significant impact on the proceedings. The initial
claim was submitted on June 9, 2023, and the request for the inclusion of the New Claim was
made on September 11, 2023 [RFA, P. 5; RFANC, P. 46]. This substantial gap in time between
the two submissions brings into question the fairness and effectiveness of addressing both matters
in one arbitration.
Furthermore to quickly mention that treating this two claims as seperate is also in line with the
fact that the two PO“s are governed by different arbitral clauses.. The fact that the parties went
out of their way to delibaretly put a different arbitration clause into the second PO clearly shows
that they wanted issues arising out of that PO to be treated seperately. You would also like to
point out that there is practically no room for conflicting awards. The two claims are independent
from one on another and the facts of the case important for both cases are only tangentialy
related. It is established that when there is one overriding agreement – a framework agreement –
which contains an arbitration agreement, and where there is no arbitration agreement in related
contracts emanating from the first, there is an intention to cover all disputes by one arbitration
agreement [Fouchard/ Gaillard/ Goldman, P. 301-6; ICC Case No. 4131(1989)].
Moving onto my next point besides the requirements in the Article 23(4) the parties also
stipulated additional requirements in ToR. Which is that the addition of a new claim is only
possible if it results in noticeable savings in cost and time. Savings of time can not be achieved
by the addition of new claim. The Tribunal would decide on a claim only after the issues
currently before the Tribunal have been resolved, which would effectievly be like a second new
arbitral proceeding in regards to the passage of time. Noticable savings of costs are nebulose at
best considering that the additional claim could be resolved by a sole arbitrator which is in line
with the value of the claim and its arbitration clause.
Furthermore the requirements of time and cost are laid out humanilitivly meaning the both have
to be met which is certainly not the case here. After submission 1 is done moving onto the second
sumbission:
The At cannot consolidate proceedings. The fact that the AT cannot consolidate the proceedings
is clear from article 10 of the ICC rules where the power consolidate the proceedigs is explicitly
an administrational power of the court. As this is a Rule of the ICC which explictly does not
allow for party autonomy and the parties have no room to deviate from it. Furthermore the
requirements for consolidation in article 10 are not met. As the only leagal question in common
beetwen the two claims relates to the FA relationship with the arbitral clauses in POs.
Consolidation
Of cases by the ICC is and remains discretionary. This means that one party does not have a right
to demand Consolidation. In a case involving two companies working for the United States
[Boeing Case ] the UK Government asked the two companies to agree on consolidation of
arbitration, but Boeing would not agree to it, considering that the cost would increase in the
Consolidation and the problem would be simpler in the case of independent [Link]
notified the UK Government that it would not consolidate Arbitration unless all parties agreed to
do so. On the other hand, Consolidation in Arbitration have disadvantages, which may
outweigh their perceived benefits or favor one party at the expense of another.
Although “lack of chronological coordination, potentially conflicting findings and the
possibility of diverging judgments may cast disfavor upon arbitration [Gary B, P. 282].
The ICC Court has exclusive jurisdiction to order consolidation under the ICC Rules. The
tribunal has no authority to do that. [Webster Buhler]
To conclude It would be prejudiced towards one side to approve the claims of a party
that hasn't even fulfilled the basic requirements for accepting them. We respectfully ask
the AT to not authorise the addition of a new claim, and to not consolidate first
proceeding with other one which is not even raised by the Claimant.