ICC Advanced Arbitration Academy Case

WILLIAMS KWAN AND CO

ICC RULES ARBITRATION

18 April 2023

CLAIMANT’S ANSWER TO THE REQUEST FOR JOINDER

AND ADDITIONAL PARTY’S COUNTERCLAIM AGAINST CLAIMANT

Case ICC No. 28000/ALU

Private Fund Ltd

Claimant: 2nd Floor, Harbour Building, 5 Pier Road,
Central - Hong Kong

Mr. Andrew Kwan

Williams Kwan and Co
Claimant’s representatives: Phoenix Plaza, 7 Orwell Road,
Hong Kong

Mr. Flavio Pereira Ferreira

Respondent: Av. Republica do Chile, 330 - Centro, Rio de
Janeiro, Brazil

Ms. Alexa Umar, Raman, Umar and Partners

Respondent’s representatives: 15 Jalan Sudirman, 11th Floor, Riverside Tower
Jakarta, Indonesia

Fairwood Ltd.
Additional Party: 8 High Street, Tortola, British Virgin Islands

A.I. Tsimmerman, Tsimmerman and Partners

Representatives of the Additional 8022 Zurich, General-Guisan-Quai 34
Party:
Switzerland

Copyright © 2023- International Chamber of Commerce (ICC). All rights reserved.

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 ICC Advanced Arbitration Academy Case

1. The Claimant, Private Fund Ltd, hereby sets out its comments on the Request for
Joinder which was filed by the Respondent, Mr. Flavio Pereira Ferreira, on 10
February 2023 and the Additional Party’s Answer to the Request for Joinder and
Counterclaim which was filed by Fairwood Ltd. on 16 March 2023. Unless noted
otherwise, this submission adopts the terms defined in Private Fund’s Request for
Arbitration dated 4 January 2023.

2. Without admitting any statements made by Fairwood in its Counterclaim, Private Fund
respectfully submits that Mr. Pereira Ferreira’s claim against Fairwood and Fairwood’s
Counterclaim against Private Fund cannot be entertained in this arbitration for the
below reasons:

(i) Private Fund filed its Request for Arbitration under the Guarantee only. The SPA
and the Guarantee are two different agreements. Private Fund never consented
to disputes arising under the Guarantee and the SPA being considered in a
single arbitration.

(ii) Private Fund is not a party to the Cover Agreement and a company which is not
a party to the contract cannot be dragged in the proceedings initiated under such
contract. The fact of Private Fund's CEO affixing his signature and Private
Fund's seal could in no way be interpreted as Private Fund's consent to be party
to the Cover Agreement or to being bound by any provisions thereof.

(iii) The arbitration clauses in the SPA and the Guarantee are not compatible. Unlike
the arbitration clause in the SPA, the arbitration clause in the Guarantee does
not provide for the number of arbitrators nor the place of arbitration.

(iv) Fairwood did not first try to resolve the dispute through negotiations between the
management of both parties, as provided for in Article 26.30 of the SPA and
therefore its claim against Private Fund is premature.

3. In any case, Fairwood cannot nominate its own arbitrator. In the event that the ICC
Court decides to join Fairwood to this arbitration, it would have to be considered by
four arbitrators. One of the core principles of arbitration is that each party has a right
to nominate its arbitrator and the Court has no power to deprive any party of this right.
In this case, all three parties have nominated their arbitrator, and the fourth arbitrator
– the President of the Arbitral Tribunal – will be appointed by the Court, as the parties
have not agreed on another method of constituting the Arbitral Tribunal. However, the
SPA’s arbitration clause provides that the Arbitral Tribunal should consist of three
arbitrators. This means that Fairwood’s Counterclaim cannot not be admitted in this
arbitration.

4. Thus, Private Fund requests the ICC Court to:

(i) reject Mr. Pereira Ferreira’s request to join Fairwood as an additional party;

(ii) reject as inadmissible the counterclaim filed by Fairwood against Private Fund;

(iii) confirm the arbitrators nominated by Private Fund and Mr. Pereira Ferreira

Copyright © 2023- International Chamber of Commerce (ICC). All rights reserved.

ICC holds all copyright and other intellectual property rights in this work. No part of this work may be reproduced, distributed, transmitted, translated or
adapted in any form or by any means, except as permitted by law, without the written permission of ICC. Permission can be requested from ICC through
events@iccwbo.org.
 ICC Advanced Arbitration Academy Case

only; and

(iv) proceed with the appointment of the President of the Tribunal.

Respectfully submitted,

On behalf of Private Fund

Mr. Andrew Kwan

18 April 2023

Copyright © 2023- International Chamber of Commerce (ICC). All rights reserved.

ICC holds all copyright and other intellectual property rights in this work. No part of this work may be reproduced, distributed, transmitted, translated or
adapted in any form or by any means, except as permitted by law, without the written permission of ICC. Permission can be requested from ICC through
events@iccwbo.org.