Radisson Hotels APS Danmark v Hayat Otel Isletmeciligi Turizm Yatirim Ve Ticaret Anonim Sirketi
| Jurisdiction | England & Wales |
| Judge | Dame Clare Moulder DBE |
| Judgment Date | 21 April 2023 |
| Neutral Citation | [2023] EWHC 892 (Comm) |
| Docket Number | Case No: CL-2022-000037 |
| Court | King's Bench Division (Commercial Court) |
[2023] EWHC 892 (Comm)
Dame Clare Moulder DBE
sitting as a Judge of the High Court
Case No: CL-2022-000037
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Ali Malek KC, Can Yeginsu and Calum Mulderrig (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for the Claimant
Jonathan Dawid and Emilie Gonin (instructed by Gardner Leader LLP) for the Defendant
Hearing dates: 13 and 14 March 2023
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
This judgment was handed down in unredacted form by the judge remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be Friday 21 April 2023 at 10:00.
Contents
| Introduction | 3 |
| The contact between CD and Mr Önkal | 3 |
| Chronology | 4 |
| Issues | 5 |
| Delay/waiver-Section 73 | 5 |
| Hayat's case on waiver | 6 |
| Radisson's response on waiver | 6 |
| Does s73 apply where a partial award has been issued? | 7 |
| Application of section 73 | 8 |
| The grounds of objection in this case | 9 |
| When did Radisson have knowledge of the grounds for objection? | 11 |
| Submissions on knowledge | 11 |
| Evidence | 12 |
| Credibility of Ms Cambré and absence of other witnesses | 19 |
| Conclusion on credibility of Ms Cambré | 22 |
| Documents and deletion of messages | 23 |
| Discussion on knowledge | 24 |
| Conclusion on knowledge | 27 |
| Knowledge prior to 13 January 2022 | 30 |
| Attribution | 31 |
| Have Radisson shown that they “could not with reasonable diligence have discovered the grounds for the objection.” | 31 |
| Conclusion on exercise of reasonable diligence | 36 |
| Other issues | 37 |
| Addendum | 37 |
Introduction
The claim between the Claimant (“Radisson”) and the Defendant (“Hayat”) arises out of an ICC Arbitration (the “Arbitration”), commenced in October 2018. Radisson is the Respondent and Hayat is the Claimant in the Arbitration. The Arbitration is seated in London, England, and conducted pursuant to the 2017 ICC Rules (“ICC Rules”).
Hayat is an indirect subsidiary of Bilgili Holding AS (“Bilgili Holding”), a Turkish holding company ultimately owned by the Bilgili family. Radisson is part of the Radisson Hotel Group, an international hotel management group.
The subject matter of the Arbitration concerns claims by Hayat relating to the management of a hotel in Turkey. Radisson has also brought a counterclaim for allegedly unpaid management fees.
The Tribunal originally constituted for the Arbitration comprised AB KC, BC KC and CD. AB KC is an Australian barrister. He was appointed by the ICC as Presiding Arbitrator. BC KC is an English barrister. She was nominated by Radisson as co-arbitrator. CD is a Turkish hospitality professional. She is not legally qualified. CD was nominated by Hayat as co-arbitrator.
The contact between CD and Mr Önkal
It is common ground that in the course of the Arbitration, CD had the following contact with Mehmet Önkal, a Turkish hospitality professional who, at that time, was engaged by Hayat in the Arbitration:
a. On 20 and 21 March 2019, CD forwarded to Mr Önkal two chains of internal Tribunal emails (“March Emails”), one of which contained BC's initial impressions of the parties' cases. The other emails dealt with hearing logistics among other things.
b. CD was copied on an email from Mr Önkal to (among others) Mr Natan, a board member of Bilgili Holding, and on Mr Natan's reply on 26 April 2019 (“April Emails”). In his email of 25 April 2019, Mr Önkal stated to Mr Natan inter alia that CD had returned from London “fully filled” and that “we have a lot to talk about”. Mr Natan responded the next day saying “[b]rother, if it suits let's talk on the phone on Monday, then decide how to proceed.” Mr Natan's evidence is that he subsequently spoke to Mr Önkal and instructed him not to have any contact with CD.
c. On 14 May 2019, CD sent Mr Önkal an email attaching inter partes correspondence from Radisson to the Tribunal. Mr Önkal forwarded this email (without the attachment) to Mr Natan (“May Emails”). Mr Natan's evidence is that following receipt of this email, he again spoke to Mr Önkal and repeated his instruction not to have any contact with CD. The recipients of the April Emails (but not the March and May Emails) also included Dr Durman, Vice President of Legal at Bilgili Holding, as well as Ms Tahmaz and Mr Ercantürk (board members of Bilgili Holding).
Following a change to Hayat's legal representation, Hayat ceased using Mr Önkal's services in August 2019. Mr Önkal was not called to give evidence and did not submit any reports in the Arbitration.
The existence of the March, April and May Emails was not disclosed to Radisson by either CD or Hayat prior to the issue of these proceedings.
Chronology
The following summary of the facts is also common ground and is taken from the List of Common Ground and Issues.
The evidential hearing on liability and causation took place in October 2020.
On 13 and 14 December 2020, Dr Durman exchanged LinkedIn messages and emails with Ms Cambré of Radisson in which he offered his services as a lawyer “even against Bilgili”.
On 23 March 2021, the Tribunal issued a Partial Award on liability and causation (the “Partial Award”), finding Radisson liable for breach of contract, breach of fiduciary duty, negligence, and breach of duty as bailee. The Tribunal deferred consideration of Radisson's counterclaim to the quantum phase.
Radisson held meetings and/or calls with Dr Durman on at least 24 September, 16 November and 25 November 2021, during which Dr Durman made and/or repeated allegations that Hayat had had ex parte communications with CD.
On 1 December 2021, Radisson engaged Dr Durman as a legal adviser for matters relating to Turkey.
Radisson held further meetings/calls with Dr Durman on at least 4 and 26 January 2022.
Dr Durman also put Radisson in contact with Mr Önkal. Radisson held meetings with Mr Önkal and Mr Önkal's assistant, Ms Gülkilik, on at least 29 September and 16 November 2021 and 4, 25 and 26 January 2022, in the course of which they had discussions related to Mr Önkal' s previous work for Hayat and whether Mr Önkal could assist Radisson in the Arbitration.
By no later than 4 January 2022:
a. Radisson agreed to engage Mr Önkal to assist it with the quantum phase of the Arbitration.
b. Mr Önkal provided Radisson with a USB drive of documents pertaining to his work for Hayat which Radisson provided to its legal counsel in the Arbitration, Quinn Emanuel.
By no later than 13 January 2022, Radisson and/or Quinn Emanuel identified that the USB drive also contained a Word Document apparently reproducing the text of emails between CD and the rest of the Tribunal (i.e. the March Emails).
Radisson subsequently obtained native copies of the March Emails from Mr Önkal and Ms Gülkilik by no later than 25 January 2022.
On 27 January 2022, Radisson issued the Claim Form in the present proceedings together with a Supplementary Statement of Case, applying to set aside the Award pursuant to sections 68(a), (c) and (g) of the Arbitration Act 1996 (“1996 Act”). The Claim Form was amended on 31 January 2022.
On 31 January 2022, Radisson applied to the ICC Court challenging CD and BC KC under Articles 14, 15(2) and 42 of the ICC Rules (“ICC Challenge”). In her response to the challenge, CD admitted to having been contacted by Mr Önkal and to having sent him the March Emails.
On 4 March 2022, Hayat disclosed the April Emails and May Emails, both in these proceedings and in the ICC Challenge. Before the challenge to CD was determined, on 9 March 2022, she resigned from the Tribunal. On 24 March 2022, the ICC Court ruled in favour of the challenge against BC and at the same time accepted CD's resignation.
Following disclosure of the April and May Emails on 4 March 2022, Hayat consented to Radisson re-amending its case to include reliance upon them subject to preserving Hayat's right to object to the amendment as being out of time. In the re-amendment, made on 28 March 2022, Radisson withdrew its Supplementary Statement of Case and its reliance on s.68(g) of the 1996 Act.
Issues
It is common ground that:
(1) The statutory requirements for a challenge to the Award under s. 70(2) of the 1996 Act are satisfied.
(2) The time limit for challenging the award under s. 70(3) of the 1996 Act has expired and Radisson needs an extension of time to bring its challenge pursuant to s. 80(5) of the 1996 Act and CPR r.62.9.
Delay/waiver-Section 73
Although Radisson stressed the seriousness of the substantive allegations against CD, I propose to deal first with the issue of waiver under section 73 of the 1996 Act, since section 73 can result in Radisson having lost the right to challenge the Partial Award.
Section 73(1) provides (to the extent relevant):
“ If a party to arbitral proceedings takes part, or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any provision of this Part, any objection—
(a) […]
(b) that the proceedings have been improperly conducted,
(c) that there has been a failure to comply with the arbitration agreement or with any provision of this Part, or
(d) that there has been any other irregularity affecting the tribunal or the proceedings,
he may not raise that objection later, before the tribunal or the court, unless he...
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