Honeywell International Middle East Ltd v Meydan Group LLC (formerly Known as Meydan LLC)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ramsey |
| Judgment Date | 30 April 2014 |
| Neutral Citation | [2014] EWHC 1344 (TCC) |
| Docket Number | Case No: HT-12-372 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 30 April 2014 |
[2014] EWHC 1344 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, London EC4A 1NL
Mr Justice Ramsey
Case No: HT-12-372
Tom Montagu-Smith (instructed by Hogan Lovells International LLP) for the Claimant
Tim Taylor QC and Riaz Hussain (instructed by King & Wood Mallesons LLP) for the Defendant
Hearing dates: 27 and 28 February 2014
Introduction
In these proceedings the Claimant ("Honeywell") brings an arbitration claim against the Defendant ("Meydan") to enforce a Dubai arbitration award issued on 1 March 2012 ("the Award") made by an arbitral tribunal ("the Tribunal") in an arbitration ("the Arbitration") under the rules of the Dubai International Arbitration Centre ("DIAC").
Under the Award Honeywell was awarded the sum of AED77,080,272.44, approximately £12.6 million against Meydan.
Honeywell commenced these proceedings on 12 November 2012. It made a without notice application under s.101(2) of the Arbitration Act 1996 ("the Act") and CPR 62.18(1)(b) for leave to enforce the Award in the same manner as a judgment or order of the court to the same effect.
It supported the application with the first witness statement of Anthony Robin Marshall, a partner of Hogan Lovells International LLP dated 8 November 2012 which exhibited the documents which are required to be produced under s.102 of the Act.
By an order made on 12 November 2012 and sealed on 22 November 2012 ("the Order") Mr Justice Akenhead gave leave to enforce the Award in the same manner as a judgment or order of the court to the same effect but he ordered that the Order should not be enforced for 21 days after service of the relevant documents on Meydan or, if Meydan applied within those 21 days to set aside the Order, until after such application had been finally disposed of. The Order gave directions as to service of the documents.
On 11 September 2013 Honeywell made a further without notice application in relation to service of the proceedings out of the jurisdiction supported by the second witness statement of Mr. Marshall, dated 11 September 2013.
On 16 September 2013 Mr Justice Stuart-Smith made an order pursuant to CPR6.15(1) and 6.27 giving permission to serve the relevant documents on Meydan and their Solicitors.
On 14 October 2013 Meydan acknowledged service of the arbitration claim and indicated that it intended to dispute the court's jurisdiction.
Following correspondence between solicitors the parties agreed an extension of time for the service of Meydan's application to set aside the Order and within that extended period, on 29 October 2013, Meydan issued an application seeking a date for a case management conference to consider directions and to hear an application for security for costs and also seeking an order setting aside the Order.
By an order made on 19 December 2013 I gave directions for a hearing to take place on 27 and 28 February 2014, with directions for service of evidence. The purpose of the hearing was to consider whether Meydan's application to set aside the Order could be determined summarily as having no real prospect of success or whether a final hearing was needed in which case further directions would be given leading to a hearing on dates fixed in early April 2014.
The parties served evidence. Honeywell served three witness statements from Mr Marshall and evidence on UAE law from Amjad Ali Khan, the Managing Partner of Afridi & Angell, a firm of legal consultants in the UAE. Meydan served two witness statements from Joanne Elizabeth Strain, a solicitor in SJ Berwin (MENA) LLP, now King & Wood Mallesons SJ Berwin (MENA) LLP ("SJ Berwin"), four witness statements from Bader Sulaiman, a legal consultant to the Chairman of Meydan Group LLC and a witness statement from Mark Conn a director of CKR Consulting Engineers and an affidavit from Peter Richard Evans a chartered quantity surveyor in independent practice. In addition Meydan served evidence on UAE law from Ian David Edge a practising English barrister and lecturer in law at the Centre of Islamic and Middle East Law in the University of London.
The parties exchanged submissions in advance of the hearing on 27 and 28 February 2014 at which both parties made oral submissions.
On 4 March 2014 I informed the parties that I had decided that on the basis of the evidence and submissions I should dismiss Meydan's Application to set aside the Order. In this judgment I set out my reasons for coming to that conclusion.
Background
Honeywell is a company incorporated in Bermuda. It operated in the United Arab Emirates ("UAE") through its branch in Dubai with commercial license number 605319. It is an affiliate of Honeywell International Inc, a diversified international technology and manufacturing company.
Meydan is incorporated in Dubai with commercial license number 590645. It is the owner of the Ned al Sheba racecourse, commonly referred to in Dubai as the Meydan Racecourse where horse races, concerts and exhibitions are hosted.
On 17 September 2007 Meydan entered into a contract ("the Arabtec Contract") with a main contractor Arabtec-WCT JV ("Arabtec") under which Arabtec agreed to carry out certain works at the Meydan Racecourse, including an extra low-voltage ("ELV") system in the hotel, grandstand, boat house and the Dubai Racing Club which were all located there.
The employer's representative under the Arabtec Contract was Teo A Khing Design Consultants Sdn Bhd (Dubai Branch) ("TAK") who were engineering consultants with a head office in Malaysia.
On 19 March 2008 TAK on behalf of Meydan invited Honeywell to submit a tender for the supply, installation, testing and commissioning of the ELV System at the Meydan Racecourse. The tender invitation included the following provisions at clauses 2.2. and 2.3 relating to the collection of tender documents:
" 2.2 Tender Documents will only be made available upon our receipt of the following company cheque made payable to Teo A Khing Design Consultants Sdn Bhd (Dubai Br)
(i) The first cheque amounting to United Arab Emirates Dirham: Twenty Six Thousand Only (AED 26,000.00) being the documentation fees which is refundable to tenderers upon submission of completed tender documents and tender drawings.
(ii) The cheque amounting to United Arab Emirates Dirham: One Hundred Thousand Only (AED 100,000.00) being the tender deposit which is refundable to all unsuccessful tenderers.
(iii) The tender deposit of the successful tenderer will be defrayed as total lithography charges for contract documentation.
2.3 For your information, total lithography charges for tender and contract documentation of United Arab Emirates Dirham: Four Hundred Thousand Only (AED 400,000.00) will be borne by the successful tenderer."
The letter said that the tender documents were to be delivered to Meydan, for the attention of the Tender Committee at TAK's offices in Dubai on or before 17 April 2008. The letter indicated that it was copied to Meydan.
On 29 June 2008 Meydan nominated Honeywell as the nominated subcontractor to be appointed by Arabtec under the Arabtec Contract to install the ELV system. Honeywell was subsequently engaged as a sub-contractor by Arabtec although no formal written agreement was entered into. Honeywell commenced work at the site on 19 July 2008.
The Arabtec contract was terminated in January 2009 but Honeywell continued to work at the Meydan Racecourse. In DIAC arbitration case 02/2009 Arabtec commenced proceedings against Meydan.
On 10 March 2009 Meydan sent Honeywell a letter of acceptance informing them that they had been awarded a contract to execute and complete the supply, installation, testing and commissioning of the ELV system at the Racecourse.
On 17 March 2009 Honeywell wrote to Meydan and confirmed their acceptance of the terms and conditions in the letter of acceptance but noted certain points arising out of those provisions. On 17 May 2009 TAK wrote to Honeywell, responding to the comments in Honeywell's letter of 17 March 2009. The letter indicated that it was copied to Meydan.
On 7 June 2009 an agreement was signed between Meydan and Honeywell for the execution and completion of the supply, installation, testing and commissioning of the ELV System at the Racecourse ("the Contract"). The Contract indicated that it was signed by Mr. Fakhri Valikarim above Honeywell's seal or stamp.
The Contract incorporated at Clause 20.6 the following provision in relation to Arbitration:
" Unless settled amicably, any dispute shall be settled by international arbitration. Unless otherwise agreed by both Parties:
(a) the dispute shall be finally settled under the Rules of Commercial Conciliation and Arbitration 1994 of the Dubai International Arbitration Centre
(b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules,
(c) the arbitration shall be conducted in the language for communication defined in Sub-Clause 1.4 [Law and Language], and
(d) the venue of the arbitration shall be Dubai."
Honeywell submitted monthly interim payment applications to TAK and payments were made against certificates until 22 December 2009. A further payment was made on 15 February 2010 but no further payments were made by Meydan after that date. Honeywell contended that payments were overdue, payment certificates had not been issued and sums had been under-certified. As a result Honeywell reduced work on 14 June 2010 and suspended work on 20 July 2010.
As exhibited to the witness statement of Mr. Sulaiman there is a letter from Honeywell to Meydan...
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