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18paid for by, the Minority Shareholders or any one of them), thisAgreement will terminate automatically with immediate effectand without any liability of any Party towards the other for anyreason whatsoever, except that the Downpayment (togetherwith all interest thereon pursuant to the terms of the escrowAgreement) shall be returned to the Purchaser.On April 29, 1999, Vision N.V. sent the notification of the sale to the MinorityShareholders (C.10, R.3, R.4, R.5). The issue as to whether this notificationwas made at the right time is disputed and will be discussed below.The Core Minority Shareholders notified Vision N.V. on May 31, 1999 of theirintention to exercise their pre-emption rights (C.13, C.14). Valvision argues thatthese notices were late, that the pre-emption rights should have been exercisedon May 27, 1999 at the latest and that consequently the Core Minority Shareholdershad waived all their pre-emption rights under the General Agreement.This issue will be discussed below.§5. THE AGREEMENT BETWEEN VISION N.V. AND THE CORE MINORITYSHAREHOLDERS24. On June 7, 1999, Brussels and Gillam entered into an agreement withMediareseaux in order to sell to M6diareseaux the 73.775% of the share capitalof RCF that they would acquire from Vision N.V. as well as their own shares inthe capital of RCF, which altogether represented 95.763% of the share capitalof RCF (C.17).The purchase price to be paid by M6diareseaux under this agreement for95.763% of the shares amounted to NLG 57,909,251.25.25. On June 14, 1999, Valvision asked for the return of its down payment(C.19).Vision N.V. refused, stating that the obligation to repay the escrow amountwould only arise after the shares were actually transferred to and paid for by thepre-emptors (C.21 and C.26).26. On June 17 and 19, 1999, Vision N.V. and the Core Minority Shareholdersentered into an agreement by which Vision N.V. sold 73.775% of the sharecapital of RCF to Brussels and Gillam (C.24).Valvision argues that the conclusion of this agreement was a violation of the requirementunder the General Agreement that the sale and paymentchase price should take place within 10 Business Days following nHthe pre-emption right.COUR INTERNATIONALE D'ARBITRAGER`A02338488/0.31/16 Oct 2002INTERNATIONAL COURT OF ARBITRATIONC/4TQNAL 4t OFCHAMBEJ
19On the same day, Vision N.V. waived the requirement that Brussels and Gillammake a down payment provided that Brussels and Gillam guaranteed the purchaseprice and agreed to close within 30 days (R.21). Valvision criticises thiswaiver as a modification of the conditions of the sale and a sign of collusion betweenthe parties.27. On June 29, 1999, Brussels and Gillam purchased from Vision N.V.73.775% of the share capital of RCF, paid the total purchase price and retransferredthe shares on the same day to UPC/Mediareseaux (C.29, C.30, C.31).§6. THE REQUEST FOR ARBITRATION AND PROCEEDINGS IN THEFRENCH COURTS28. By letter received by the ICC on June 29, 1999, Valvision alleged thatthere had been a breach of the SPA and submitted to the Secretariat of the ICCthe request introducing the present arbitration.It also submitted a request to the President of the Tribunal de commerce ofNanterre in order to have 95% of the share capital of RCF seized ("saisiesequestre conservatoire"), for the period of the arbitration procedure (C.32).Valvision alleged that the pre-empting Minority Shareholders had not exercisedtheir pre-emption rights in accordance with the terms of the General Agreementand had therefore waived them.The President of the Tribunal de commerce of Nanterre rendered an order authorisingValvision to seize the share capital of RCF on June 29, 1999 at 12noon (C.33).When the bailiff proceeded to the seizure of the shares of RCF on June 29,1999 at 4.45 p.m., the shares of RCF had already been transferred by VisionN.V. to the Core Minority Shareholders (C.34).On the same day, Brussels and Gillam, the pre-empting Core Minority Shareholders,submitted a writ of summons to the President of the Tribunal de commerceof Nanterre asking him to review his position.On the same evening, the President of the Tribunal de commerce of Nanterrerendered a second court order confirming the seizure of the shares of RCF andnominated an "administrateur" to control the management of RCF.Brussels and Gillam appealed before the Court of Appeal of Versailles. On August6, 1999, the Court of Appeal of Versailles declared the Wi ERtshares of RCF null and void (C.45).V COUR INTERNATIONALE D'ARBITRAGEt'INTERNATIONAL COURT OF ARBITRATIONA02338488 VALVISION FLEAWARDmarkedvers F /0.31/16 Oct 2002CHAMB[IR SS
Page 1 and 2: International Chamber of CommerceTh
Page 3 and 4: In the matter of an arbitrationBETW
Page 5 and 6: 37. Conclusion 545. The context of
Page 7 and 8: 51. ABBREVIATIONS - DEFINITIONSP. A
Page 9 and 10: 7II.THE PARTIESThe parties in this
Page 11 and 12: 9agreement entered into in 1995 bet
Page 13 and 14: 115. The Terms of Reference were si
Page 15 and 16: 13On February 6, 2001, a witness su
Page 17 and 18: 15In particular, the Arbitral Tribu
Page 19: 17On April 15, 1999, the seller sen
Page 23 and 24: 21Valvision had incurred substantia
Page 25 and 26: 23an amount of FRF 337,100 (= 51,39
Page 27 and 28: 251. IN GENERAL§1. THE JURISDICTIO
Page 29 and 30: 27The Arbitral Tribunal is of the o
Page 31 and 32: 2949. The question arises as to the
Page 33 and 34: 3153. As a conclusion, the Arbitral
Page 35 and 36: 33paragraphs of this provision appe
Page 37 and 38: 35bank employees, including Sunday.
Page 39 and 40: 37could reasonably derive from each
Page 41 and 42: 39§5. VISION N.V. AND VISION B.V.'
Page 43 and 44: 4180. In R.sub 5, Vision N.V. and V
Page 45 and 46: 43UPC se developpe rapidement en Eu
Page 47 and 48: 45the General Agreement and, more s
Page 49 and 50: 47towards the seller. (See also, Pr
Page 51 and 52: 49ers a price adjustment, which mig
Page 53 and 54: 51Should Vision N.V. and Vision B.V
Page 55 and 56: 53F.2: "Seller shall furnish Purcha
Page 57 and 58: 55He reiterated the same message on
Page 59 and 60: 57Such interpretation, which is con
Page 61 and 62: 59Vision N.V. also allowed the Core
Page 63 and 64: 61123. The Arbitral Tribunal is how
Page 65 and 66: 63128. The concept of "damage" refe
Page 67 and 68: 65the Hoge Raad of February 20, 197
Page 69 and 70: 672. The abstract method138. This t
Page 71 and 72:
69presented together to the judge/a
Page 73 and 74:
71Proportion of Mediareseaux' purch
Page 75 and 76:
733. Valvision lawyers' fees149. Va
Page 77:
75Place of arbitration : Londonv V,
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