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28However, some alleged breaches (for examples breaches c), d) and e)) rely onthe assertion that Vision N.V. and Vision B.V. breached the SPA by not holdingthe Core Minority Shareholders to strict compliance with the terms and provisionsregulating the exercise of their pre-emption rights, as provided for by theGeneral Agreement. In order to determine whether or not Vision N.V. and VisionB.V. breached the SPA by not strictly enforcing the General Agreement,the Arbitral Tribunal will need to review and interpret the General Agreement.Before reviewing these various breaches, the Arbitral Tribunal will determine thedate on which the SPA was signed.P. THE DATE OF THE SPA48. After the negotiations resumed in March 1999, Valvision and Vision N.V.exchanged various drafts (C.75, p. 20, C.75, p. 24).On April 11, 1999, Valvision approved all proposed terms and asked for a finalagreement for signature (C.75, p. 26).On April 15, 1999, the counsel for Vision N.V. faxed to Valvision an unexecutedcopy of the final agreement for execution (C.75, p. 27).The important exhibits were faxed at the same time but the entire package ofexhibits was sent by courier and received by Valvision on April 19, 1999 (C.75,p. 28).On April 19, 1999, Valvision dated and executed the faxed SPA and faxed theexecuted copy back to Vision N.V. (C.75, p. 29 and 30).Vision N.V. required however that the down payment be made before it signedthe SPA itself (C.8 and R.1) whereas Valvision required receipt of a fully executedSPA before wiring the funds.Mr. Van der Hoeven testified that he signed the SPA on behalf of Vision N.V.,on April 21, 1999 (R.23).However, pursuant to C.6 and C.75, p. 61, the document bears the date of April22, 1999. Mr. Stumphius, Vision N.V.'s counsel for the sale, also confirmed thisdate (R.53).On April 22, 1999, at 19:12, Vision N.V. faxed to Valvision the faxed copy of theSPA now signed by both parties (C.75, p. 61).Another original version was signed by Vision N.V. on April 22, 1999 and wassent by mail (R.39; R.sub 2, p. 1).Valvision instructed its bank the next day, April 23, 1999, tment (C.75, p. 90).A02338488/0.31/16 Oct 2002jMMERCEINRTDti9Wire the down pay-COUR INTERNATIONALE D'ARBITRAGEINTERNATIONAL COURT OF ARBITRATIONc09T/n.'4L CHAMBER
2949. The question arises as to the date on which the SPA must be consideredas having been entered into. Valvision argues that the date of the SPA wasApril 19, 1999 (C.sub 2, p. 41) and Vision N.V. that it was April 22, 1999 as onlyon that date had both parties duly signed it (R.sub 2, p. 9).Vision N.V. and Vision B.V. have filed an affidavit from Nauta Dutilh (R.57),which explains that the transfer of the ownership of shares cannot take place bythe mere consent of the parties but that the transfer of the purchased item is required.Valvision argues however that under Dutch law, in the absence of specific provisions,the meeting of wills suffices to create the contract (Tr 10/7/2001 at 11and 12).The Arbitral Tribunal is of the opinion that it is not necessary to determine thecontent of Dutch law relating to the transfer of the ownership of shares. Indeed,it appears from the above review that until April 22, 1999, the parties did noteven agree on one element that appeared to be one of prime importance, i.e.the timing of the down payment, as Vision N.V. refused to sign the contract aslong as this down payment had not been made. The parties clearly onlyreached final agreement on this issue on April 22, 1999 when Vision N.V. finallyagreed to fax the signed version of the SPA to Valvision before the wiring of thedown payment.The Arbitral Tribunal will now review the breaches alleged by Valvision.11. THE ALLEGED BREACHES§1. THE BREACH OF THE CONFIDENTIALITY DUTY50. Valvision argues that, knowing that Valvision was returning to Europe withits negotiating team, Vision N.V. called on March 9, 1999 a meeting of the StrategicCommittee of RCF (R.19; C.sub 2, p. 20), which was attended by Mr. Vander Hoeven, Mr. De Vos and Mr. Gillard, the representatives of the Core MinorityShareholders.The minutes of the meeting indeed show that two matters were discussed, i.e.the termination of Mr. Esgain, the managing director of RCF, and the proposedacquisition of RCF by Valvision (R.19).Valvision is of the opinion that in disclosing the above information to Mr. De Vosand Gillard, Mr. Van der Hoeven violated the confidentiality owed to Valvisionpursuant t it l tt f intent t D ber16 1998Shtt KPand that Mr. Van der Hoeven provided the Core Minor ity ers with ad-vance notice and inside information on the financial term he deal agreedsupon in principle with Valvision.Io s e er o sen on ecem , o MT ER qoy9`COUR INTERNATIONALE G'ARBITRAGE 'INTERNATIONAL COURT OF ARBITRATION VA02338488/0.31/16 Oct 2002AL CHAMFER -
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 and 20: 17On April 15, 1999, the seller sen
Page 21 and 22: 19On the same day, Vision N.V. waiv
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: 27The Arbitral Tribunal is of the o
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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