PT Ventures SGPS SA v Vidatel Ltd
| Jurisdiction | British Virgin Islands |
| Judge | Jack, J |
| Judgment Date | 12 May 2020 |
| Judgment citation (vLex) | [2020] ECSC J0512-1 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO. BVIHC (COM) 2015/0117 |
| Date | 12 May 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(COMMERCIAL DIVISION)
CLAIM NO. BVIHC (COM) 2015/0117
CLAIM NO. BVIHC (COM) 2019/0067
Mr. Roger Masefield QC, with him Ms. Akesha Adonis of Maples and Calder for the claimant
Mr. Jonathan Adkin QC, with him Ms. Tamara Cameron and Ms. Yegâne Güley of Walkers for the defendant
Jack, J [Ag.]: By an application issued on 24 h April 2020 the defendant seeks the following order:
“1. An Order permitting Vidatel (and, if so advised, [PT Ventures]) to adduce Angolan law expert evidence on the matters identified at paragraph 14 of the Sixth Affidavit of Michelle Duncan dated 24 April 2020… at the trial of the Recognition Claim commencing on 27 July 2020.
2. An Order (insofar as is necessary) that the matters identified at paragraph 14 [aforesaid] stand as an additional element of Vidatel's defence of the Recognition Claim.
3. Orders that:
3.1. Vidatel is to serve its Angolan law expert evidence by Friday 29 May 2020.
3.2. PT Ventures is to serve any Angolan law expert evidence in reply (if so advised) by Friday 26 June 2020.
3.3. By no later than 16:00 GMT on Friday 10 July 2020 the parties shall serve a joint memorandum signed by the Angolan law experts which records what matters are agreed and what matters in dispute. For the matters that are in dispute, each Angolan law expert can explain briefly in the body of the joint memorandum the position which he or she adopts, and the reasons advanced to justify that position.
3.4. Each Angolan law expert may produce a short supplemental report arising from the above process and any such supplemental report shall be served by 16:00 GMT on Friday 17 July 2020.”
This case concerns the enforcement of an arbitration award for US$646,445,968 given by a Paris arbitration panel in favour of PT Ventures against Vidatel. I last dealt with the matter on 16 th March 2020, when I handed down a judgment dealing with an application by PT Ventures for summary judgment against Vidatel. At that time, Vidatel raised a number of defences. The first two (“the Paris defences”) were (a) that the arbitral panel had not been composed in accordance with the provisions of the shareholders' agreement which contained the arbitration provision and (b) that two of the arbitrators were conflicted. The remaining three (“the BVI defences”) raised matters of BVI public policy. I granted the summary judgment in respect of the three BVI defences. I refused to grant summary judgment on the first Paris defence (the composition issue) and adjourned the second Paris defence to be determined at trial. The factual background I set out in my earlier judgment and I shall not reproduce it in the current judgment.
The current proceedings were commenced on 16 th May 2019. The matter first came before me on 20 th June 2019, when I gave directions (a) that the pleadings in the Cour d'Appel in Paris stand as pleadings in respect of the Paris defences and (b) for the pleading of other matters, the BVI defences. Those directions were followed with various affidavits standing as the parties' respective pleadings. No issues of Angolan law were raised.
On 2 nd August 2019, PT Ventures issued the application for summary judgment, which was argued before me on 24 th and 25 th February 2020 and resulted in my judgment of 16 th March 2020. At no stage was any application made for adducing evidence of Angolan law, nor was any point of Angolan law pleaded. The default position is that, in the absence of evidence of Angolan law, the law governing the make-up of the arbitral tribunal is that of the seat of the arbitration, in this case French law. Angolan law was thus irrelevant.
PT Ventures raise three points in opposition to Vidatel's application to adduce evidence of Angolan law. First, the proposed expert is an expert on Portuguese law rather than Angolan law. Second, the evidence he gives of Angolan law is far too vague. Third, the application has come too late.
After hearing Mr. Adkin QC's argument on Vidatel's behalf on these points, I indicated that I was against him on all three points. Since Vidatel might well wish to consider an urgent application to the Court of Appeal, I said that I would put my reasons in writing and consider any application for permission to appeal on paper. These are the reasons I promised.
Ms. Duncan's sixth affidavit says this:
“14.3 Vidatel wishes to contend that, as a matter of Angolan law, even if PT Ventures is correct in its assertion that the contractually agreed mechanism for appointing the arbitrators was invalid or inoperable as a matter of French law (which Vidatel denies), the consequence is not that the parties are to be taken to have agreed that the ICC Court could appoint five arbitrators itself. Rather, Vidatel wishes to contend that the effect of any such invalidity or inoperability was, as a matter of Angolan law (which governs the issue), either:
14.3.1 that the parties are to be taken to have agreed on some different mechanism for the appointment of the arbitrators to the one actually adopted, with the consequence that the Tribunal as actually appointed was not appointed in accordance with the agreement of the parties to the arbitration clause (which would provide a ground for refusal of recognition and enforcement of the Final Award under [the BVI Act]), or alternatively
14.3.2 that the arbitration clause was thereby rendered invalid as a matter of Angolan law (which would provide a ground for refusal of recognition and enforcement of the Award under [the BVI Act]).”
The evidence which it is sought to adduce is an expert report of Prof. Paulo Mota Pinto. He is a professor of law at the University of Coimbra. He was a judge of the Portuguese Constitutional Court between 1998 and 2007. As such he seems to be a distinguished jurist in Portuguese law. Ms. Duncan's seventh affidavit she says in paras 5 and 6:
“Prof. Mota Pinto was asked to consider how the arbitration clause would be construed, and what effect such a state of affairs would have, according to Angolan law, on the assumption that Angolan law is the system of law governing the arbitration clause. In response, Prof. Mota Pinto has explained as follows. Angolan law is a civil law system which is substantially similar to Portuguese law, and the Angolan civil code… is derived from and similar to the Portuguese civil code.”
That is all the evidence relied on to show that Prof. Mota Pinto is qualified to act as an expert in Angolan law. It gives no indication of his having had actual dealings with Angola or its law. The impression given (or at least the evidence is consistent with) Prof. Mota Pinto having read the relevant parts of the Angolan civil code and having applied his Portuguese legal learning to its interpretation.
The difficulty is that giving an opinion on a point of foreign law does not depend solely on the wording of the relevant law (although of course the wording is important). What matters is how the courts of the foreign jurisdiction would interpret the law. This applies to jurisdictions with a civil law tradition just as it does to jurisdictions with a common law heritage.
This can be seen most clearly by reference to the German civil code, the Bürgerliches Gesetzbuch (“BGB”). This was drafted in the late nineteenth century on liberal principles in the legal positivist tradition. It came into force on 1 st January 1900. The whole approach of the BGB was undermined by the hyperinflation of 1923, which had the effect of ruining creditors by rendering the debts owed them worthless. In order to try and achieve some measure of justice between the parties, so that creditors were not completely wiped out, the German courts effectively ignored the liberal principles of the original draftsmen. The method adopted was to use certain “general clauses”, especially §§ 138 and 826 (which concerned “gute Sitten” or good moral values) and §§ 157 and 242 (which concerned “Treu und Glauben” or good faith), so as to give the courts a flexibility to do justice.
The same type of application of general clauses was used in a much more sinister manner after 1933 in order to introduce principles of Nazi ideology into German civil law, but again without any amendment to the BGB having been made. 1 Likewise after 1948, the BGB continued in force in East Germany until it was replaced by the Zivilgesetzbuch in 1976, but the interpretation of the BGB in the East reflected the “real existierender Sozialismus” of the German Democratic Republic, not the nineteen century positivism of the draftsmen.
It can be seen that advising on German law cannot involve solely reading the BGB. The advice which would be given on the same point of construction of a provision of the BGB in 1910, in 1925, in 1937, in East Germany in 1970 and in
reunified Germany in 2020 might well be completely different. The contemporary legal precedents and culture are key considerationsVidatel have adduced no evidence about the development of the Angolan civil code post-independence. Until 1975, Angola was a Portuguese colony. Portugal was ruled from 1932 until his death in 1970 by António de Oliveira Salazar, a right-wing dictator. Only after the revolution of 1974 did Portugal become a democracy. After obtaining independence the following year, Angola described itself as the “Marxist-Leninist Republic of Angola”, which suggests a certain ideological bent. In the meantime, a civil war raged in Angola which was only finally resolved in 2002.
Now it may be that none of these events impacted on the way the Portuguese and Angolan Courts interpreted the Portuguese, and subsequently the Angolan, civil code. Courts in fascist Salazar Portugal, communist Angola...
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