Derains & Gharavi a obtenu l’annulation d’une sentence CCI devant la Court de Paris sur la base d’une non-divulgation de la part d’un arbitre. Cette affaire est relat\u00e9e par le GAR dans un article du 29 mars 2018 :<\/p>\n
\u201cAudi Volkswagen award set aside in Paris<\/em><\/p>\n An ICC award won by the Middle Eastern branch of Audi Volkswagen has been set aside in Paris on the grounds of a German arbitrator’s non-disclosure \u2013 with the court dismissing a suggestion that a legal directory had incorrectly represented his firm’s work for an affiliate car company, Porsche<\/em>.<\/p>\n In a six-page judgment on 27 March, the Paris Court of Appeal annulled the award dismissing claims worth US$150 million brought by Qatari vehicle distributor Saad Buzwair Automotive Co (SBA). The award was issued in March 2016 by a Paris-seated tribunal made up of three German arbitrators: Wolfgang Wiegand (as president), Klaus-Albrecht Gerstenmaier (appointed by SBA) and Stefan Kr\u00f6ll (appointed by Audi Volkswagen). \u200e<\/em><\/p>\n The appeal court found that Gerstenmaier had failed to disclose work that was carried out by his law firm, Haver & Mail\u00e4nder in Stuttgart, for the Volkswagen Group during the course of the arbitration \u2013 creating reasonable doubt as to his independence and impartiality.<\/em><\/p>\n The work in question only came to light after the arbitration was over, when SBA consulted Haiver & Mail\u00e4nder’s entries in successive editions of the German directory of lawyers, JUVE. The 2010\/2011 edition said that the firm had represented a consortium of three banks including Volkswagen Bank, a Volkwagen Group entity, in a competition dispute with German public bank Sparkasse Ingolstadt. The 2015\/2016 edition said the firm’s arbitration and mediation department was representing Porsche \u2013 another part of the group \u2013 in a disput\u200ee in progress.<\/em><\/p>\n On accepting his appointment as arbitrator in 2013, Gerstenmaier had signed a declaration of independence, as required by the ICC. \u200eQuestioned by SBA about the information in the 2010\/2011 edition of JUVE, he acknowledged in a letter in May 2016 that his firm had represented Volkswagen Bank in the competition dispute until a judgment of the Munich Court of Appeal in 2010, with a separate lawyer representing it in subsequent proceedings before the Federal Supreme Court in Germany.<\/em><\/p>\n Gerstenmaier said he had not personally taken part in the case or been aware of it and his firm had<\/em> \u00ab\u00a0not otherwise acted or advised a Volkswagen Group company or entity, including the Porsche Group, from 2011 to the present.\u00a0\u00bb<\/p>\n In the set-aside proceeding in Paris, Audi Volkswagen was confronted with Haiver & Mail\u00e4nder’s 2015\/2016 JUVE entry mentioning work for Porsche. It argued that the information was incorrect\u200e and probably the result of an updating error by the publisher, noting that the next edition of the directory made no mention of the work. <\/em> The only exception Wandel mentioned was some consulting work that Haiver & Mail\u00e4nder had provided on an issue of banking law in connection with the financing of Porsche sales, which he said was carried out over several months in 2010 for a fee of \u20ac7,520. He said Gerstenmaier was not involved in the work.<\/em><\/p>\n The Paris Court of Appeal was unconvinced by Audi Volkswagen’s explanations. It noted that Wandel, as an employee of the Volkswagen Group, was hardly neutral with respect to the case\u200e and appeared not to have conducted<\/em> \u00ab\u00a0exhaustive searches\u00a0\u00bb of instructions given by legal departments of Porsche other than his own<\/em>.<\/p>\n The court also said the suggestion that JUVE had made an updating error in mentioning Porsche in the 2015\/2016 edition was contradicted by the fact that it had not been mentioned in the previous edition\u200e. The court noted that Audi Volkwagen had not produced as evidence the form Haiver & Mail\u00e4nder would have completed for entry in the directory, which required it to list its<\/em> \u00ab\u00a0top 5 most important cases from a legal point of view or for the development of the firm\u00a0\u00bb. Only by doing so could it show that the mention of Porsche was an error of the publisher, the court suggested<\/em>.<\/p>\n Contrary to what Audi Volkswagen had argued, the court said that business law firms in Germany use JUVE to<\/em> \u00ab\u00a0showcase\u00a0\u00bb their most impressive work and most coveted clients and that the portrayal of the firm would<\/em> \u00ab\u00a0not be left to chance\u00a0\u00bb. It accordingly took the view that Haiver & Mail\u00e4nder had included the work conducted for Porsche during the arbitration in its list of<\/em> \u00ab\u00a0top 5\u00a0\u00bb cases<\/em>. \u200e<\/p>\n The court said that the arbitration work for Porsche created doubt as to Gerstenmaier’s independence, observing that the arbitrator had also failed to disclose Haiver & Mail\u00e4nder’s consulting work for the Volkswagen Group in 2010.<\/em><\/p>\n The court further ruled that the fact that the award was unanimous and that the impartiality of the other arbitrators was not disputed was irrelevant, since each member of the arbitral tribunal is likely to influence other members.<\/em><\/p>\n Hence it said the award must be annulled under French law and ordered Audi Volkswagen to pay \u20ac100,000 costs in addition.<\/em><\/p>\n Dentons and Orrick Herrington & Sutcliffe in Germany represented SBA in the arbitration, which concerned the termination of deals to distribute Audi and VW vehicles in Qatar and was governed by German law. For the annulment proceeding in Paris, the Qatari company turned to new counsel, instructing a team from Derains & Gharavi led by Hamid Gharavi and including his fellow founding partners, Yves Derains and Bertrand Derains. The team also included partner Marie-Laure Bizeau.<\/em><\/p>\n Gharavi<\/strong> tells GAR,<\/em> \u00ab\u00a0We look forward to starting a new arbitration with basic safeguards in place of which my client was deprived in the first case.\u00a0\u00bb<\/p>\n Bertrand Derains<\/strong> says the judgment of the appeal court is<\/em> \u00ab\u00a0symptomatic of the Paris court’s tendency in recent years to control the independence and impartiality of arbitrators.\u00a0\u00bb<\/p>\n And Bizeau<\/strong> says that the Paris court recognised<\/em> \u00ab\u00a0the importance for the integrity of process of full and prompt disclosures by arbitrators.\u00a0\u00bb<\/p>\n Audi Volkswagen was represented by Freshfields Bruckhaus Deringer in both the arbitration and annulment proceeding. Paris-based partner Elie Kleiman, who led the team in court, was not at liberty to comment<\/em>\u201d.<\/p>\n In the ICC arbitration<\/em><\/p>\n Tribunal<\/em> \u200eCounsel to Saad Buzwair Automotive Co (SBA)<\/em> Counsel to Audi Volkswagen Middle East Fze<\/em> \u200eIn the Paris Court of Appeal<\/em><\/p>\n \u200eCounsel to Saad Buzwair Automotive Co (SBA)<\/em> Counsel to Audi Volkswagen Middle East Fze<\/em> Derains & Gharavi a obtenu l’annulation d’une sentence CCI devant la Court de Paris sur la base d’une non-divulgation de la part d’un arbitre. Cette affaire est relat\u00e9e par le GAR dans un article du 29 mars 2018 : \u201cAudi … Continuer la lecture
\n \u200e<\/em>
\nAudi Volkswagen also relied on a statement from Florian Wandel, legal director of Porsche’s distribution law department, dated January 2017. He wrote that he had not appointed Haiver & Mail\u00e4nder from the date of his arrival at Porsche in 2008 and did not know of any<\/em> \u00ab\u00a0substantial terms of reference\u00a0\u00bb given to the firm by colleagues since that date<\/em>.<\/p>\n
\n\u2022 Wolfgang Wiegand (Germany) (President)<\/em>
\n\u2022 Klaus-Albrecht Gerstenmaier (Germany) (appointed by SBA)<\/em>
\n\u2022 Stefan Kr\u00f6ll (Germany) (appointed by Audi Volkswagen)<\/em><\/p>\n
\n\u2022 Dentons<\/em>
\nPartner Wolfram Krohn<\/em>
\n\u2022 Orrick<\/em>
\nPartners Karlsten Faubhaber and Ian Johson<\/em><\/p>\n
\n\u2022 Freshfields Bruckhaus Deringer<\/em>
\nPartners Rolf Trittmann in Frankfurt and Hans-Patrick Schroeder in Hamburg and associates Renata Macejna and Wolfgang Jung<\/em><\/p>\n
\n\u2022 Derains & Gharavi<\/em>
\nPartners Hamid Gharavi, Yves Derains, Bertrand Derains<\/strong> and Marie-Laure Bizeau<\/strong> in Paris<\/em><\/p>\n
\n\u2022 Freshfields Bruckhaus Deringer<\/em>
\nPartner Elie Kleiman and associate Claire Pauly in Paris<\/em>\u201d.<\/p>\n","protected":false},"excerpt":{"rendered":"