Gerechtshof Amsterdam, 23-04-2015, ECLI:NL:GHAMS:2015:1716, 14/00621

“2.1. Eiseres maakt deel uit van een [A] concern ([B]) dat opereert in de olie- en gasindustrie. Eiseres, statutair en feitelijk gevestigd te [Z], is opgericht op [oprichtingsdatum]. Zij doet aangifte vennootschapsbelasting in de functionele valuta US Dollar (USD). Op 18 mei 1999 verkrijgt eiseres de aandelen in de eveneens per [oprichtingsdatum] opgerichte [ C ] (hierna: [ C ]). Vanaf 1 juli 2008 is [ C ] in een fiscale eenheid gevoegd met eiseres.

“Pre-emptive purchasing right. The shareholder who wishes to sell its shares shall be liable to offer to the other Shareholder to redeem them, and in the event of a refusal – to the Company itself. Such offer should compromise all conditions of the transaction required by the Effective legislation. In the event of the Company’s and the Shareholder’s refusal, the Shareholder may sell the shares to the Third parties. The refusal of the Shareholder and/or the Company to purchase the shares can be made by way of the conclusion of an appropriate agreement between the Shareholders and the Company.”

en

“Sale of the shares. Conditions for the sale of the shares to the other Shareholder or the Company and the methodics of determination of the value of the shares shall be determined in the appropriate agreement between them. Such agreement shall also determine an order of the transfer of the rights and obligations and an extent of the rights and obligations transferred.”

In de Shareholders Agreement (aandeelhoudersovereenkomst) van 27 december 1999 tussen (onder meer) [ C ] en [J] (hierna ook: Shareholders Agreement) is in de artikelen 9.2 en 9.8 een “pre-emptive right” (hierna ook: voorkeursrecht) opgenomen met het

oog op indirecte vervreemding (“Change of Control”). De Shareholders Agreement bepaalt - voor zover hier van belang - het volgende:

“9.2. Restrictions on Assignment. Without prejudice to Article 3, no assignment of any Interest hereunder shall be made by any Shareholder unless such assignment is made in accordance with the provisions of this Article 9:

(…)

“1. The Tribunal confirms that the Purchase Price for [[H1 Inc.]’s] [D] Shares (as defined in this final Award) as of 3l October 2005 is USD 800,000,000 (eighthundredmillion United States dollars).

2. The Tribunal dismisses [[H1 Inc.]’s] request for adjustments to the purchase Price in the amount of USD 313,792,600 on account of the larger-than-expected Oil Reserves head of claim; and in the amount of USD 277,495,121 on account of unpaid dividends for 2007 and 2008.

3. The Tribunal orders [H1 Inc.]:

4. The Tribunal orders [H1 Inc.] to pay to [ C ] the amount of USD 487,997,338 (fourhundredeightysevenmillionninehundredninetyseventhousand-andthreehundredthirtyeight United States dollars) as damages on account of paid-out dividends, as well as simple interest on this amount at a rate of 4.42 % per annum from 16 October 2008 until payment is effected.

5. The Tribunal notes that [H1 Inc.] has been credited an amount of USD 46.5 million on account of Time Value of Money by [ C ] and, additionally, an amount of USD 3.5 million on account of management costs in relation to [D] after 31 October 2005, and declares that no additional amount of compensation is due to [H1 Inc.] from [ C ] under the Time Value of Money head of claim.”

“[N] has received no formal notice in relation to the finalisation of the proceedings culminating in the Award. Furthermore, it is not clear to [N] how [H1 Inc.] will react to the Award. The Company also understands that the transfer of [H1 Inc.]’s share in [D] to [C] will be subject to a pre-emption right by the Government of [E] pursuant to Article 71 of the Law of [E] No. 2828 “on Subsoil and Subsoil Use” dated 27 January 1996 (as amended). Depending on the exact terms of the transaction, [N] may consider asking [O] [opmerking rechtbank: dit is de moedermaatschappij van [N]] to exercise their pre-emption right in favour of [N] as stipulated in the Services Agreement between [O] and [N].”

De Amicable Settlement verwijst voor de hoogte van de Settlement Payment deels naar de Final Award van het AISCC. De door [H1 Inc.] te betalen vergoeding is als volgt opgebouwd (in USD):

1) Niet ontvangen dividend [D] over de periode 2004-2007 537.997.338

2) Af: Rente over de niet betaalde koopsom van de aandelen ad

USD 800 miljoen over 15 maanden x $ 3.1 miljoen -/- 46.500.000

3) Af: Kosten door [H1 Inc.] gemaakt -/- 3.500.000

Totaal bedrag Final Award AISCC 487.997.335

4) Rentevergoeding conform AISCC van 16 oktober 2008 tot 20 juni 2010 37.002.662

Totaal 525.000.000

In het kader van de Amicable Settlement overeengekomen vermindering

van het te vergoeden bedrag (-/- 16,5%) -/- 86.625.000

Door [H1 Inc.] te betalen vergoeding: 438.375.000

“In Canada (where [H1 Inc.] is incorporated), the risk remained, though insignificant in our opinion, that the Canadian court would have taken the position pleaded by [H1 Inc.] and rejected [ C ]’s claims for enforcement in full or in part. Further, even if [ C ] had won the case before the trial court, the proceedings could have been complicated and significantly delayed by appeals. Finally, [ C ] could face significant difficulties at the actual enforcement stage, as [H1 Inc.] does not have substantial assets in Canada.

In [E] (where [H1 Inc.] has its main assets), the risk was moderately high that [H1 Inc.] would attempt to re-litigate the disputed matter and either significantly delay the actual enforcement or even make it impossible. Further, there was a conflict of interests involving a [H1 Inc.]’s shareholder (namely, [E]’s National Oil and Gas Company “[M]” (hereinafter - [M]”) which could have benefited from the exercise of the state priority right. [C] was aware that [M] (who have influence on the descision making within the government) was supportive of [H1 Inc.]’s position. These factors could significantly decrease [C]’s chances for actual enforcement of the award in [E].

(…)

In the circumstances, we can readily understand the business decision made by [ C ] to take less than the face value of the claim in order to have it settled and be assured of payment. Overall, the settlement is, in our view, very beneficial to [ C ] notwithstanding the fact that it gave up the shares and a portion of damages.”

“[H1 Inc.] and [ C ] further agreed that the amicable settlement is made in full and final settlement of all and any claims between the parties. [H1 Inc.] is to retain its 50% shareholding interest in [D]. The Alberta Court agreed with the Consent Order submitted to it by the parties and the case was duly dismissed.

[ C ] agreed to settlement at the amount of USD S 438,375,000 waiving potential rights to acquire [H1 Inc.]’s share in [D], residual amount of damages and interest because of the following main reasons:

- to stop ongoing litigation, which could deprive [ C ] and its affiliated companies from broader co-operation with [K Company], which is the major shareholder of [H1 Inc.];

- to avoid further risks and uncertainties associated with the enforcement of the AISCC award by the Alberta Court;

- to ensure an undelayed collection of the amounts receivable from [H1 Inc.] under the AISCC award.”

De onder 2.18 van de uitspraak van de rechtbank vermelde ‘Amicable Settlement’ (hierna: de settlement) van 16 augustus 2010 luidt onder meer als volgt:

“Hereinafter [H1 Inc.] and [C] are referred to together as the “Parties”and each as a “Party.”

(…)
2. DISMISSAL OG PROCEEDINGS AND PAYMENT
2.1. The Parties have agreed to resolve their differences by means of executing this Amicable Settlement on the following terms.

3. RELEASES AND AGREEMENTS NOT TO SUE
(…)

In de onder 2.22 van de uitspraak van de rechtbank aangehaalde brief van [S] (Baker & McKenzie, kantoor [R]) van 8 september 2010 is voorts vermeld:

“Summary of the Dispute
(…)
5. [H1 Inc.] is opposed to the recognition and enforcement of the award, since such enforcement, as [H1 Inc.] holds, would run counter to Canada’s public policy and would violate the laws of Canada and [E]. Viz, in [H1 Inc.]’s view, a judgement on the recognition and enforcement of the Final and Partial Awards is possible (both with regard to the share transfer and the recovery of damages) solely on condition that and after
- [E] has decided to waive the priority right; and
- The Competent Authority of [E] has issued a permission for the
transfer of the right to use subsoil resources (that is, shares in the subsoil user-company);
and

- The Anti-Monopoly Agency of [E] has consented to such economic
concentration.
(…)
Risks and Concerns associated with enforcement in [E]
12. Since [H1 Inc.] has its main assets in [E] (including its shares in [D]), in all likelihood, [C] would also have faced the necessity to take actions for enforcement in [E] subsequent to the Canadian proceedings.

13. [H1 Inc.]’s main objection to [C]’s enforcement was that no enforcement should be granted unless and until [E] waives its statutory priority right to acquire the shares which were awarded to [C]. In this regard, it should be noted that indeed according to Article 12 of the Law of [E] “On Subsoil and Subsoil Use” dated 24 June 2010 (…), in case of a proposed sale/acquisition of shares in a company holding subsoil use rights in [E], the State ([E]) has a priority right to acquire the relevant shares on the terms that are not less favorable to the seller than the terms offered by the prospective buyer. Under the [E] law, preemptive rights of other parties (the buyer, shareholders, etc.) cannot be exercised unless and until the State waives its priority right (irrespective of whether such parties’ rights arise as a result of court/arbitration award, contractual arrangement or otherwise).
(…)
16. Also, [C] was aware that [M] was supportive of [H1 Inc.]’s position. Specifically, [M] communicated to [C] (albeit on an unofficial basis) that it was in fact considering raising with the Government of [E] the issue of the state priority right to [D] shares. This again came as no surprise to [C] since [C] was aware that [M]’ position was probably explained by the fact that [M] owned (and still owns) 33% of [H1 Inc.] (and, hence, [M] was very much interested in [H1 Inc.]’s position prevailing over [C]’s position). [C] disagreed with [M]’ allegations. At the same time, [C] was aware of the [M]’ influence in [E] and, hence, accepted [M]’ allegations as a very serious potential impediment to the enforcement process.”

In een verklaring van [T], van 17 oktober 2013 is onder meer het volgende opgenomen:

“1. My name is (…) [T]. I currently hold a position of Administrative Director / Legal Counsel of [C GmbH] in [W].

2. Before that I held the positions of (…) Head of Legal and General Counsel at [C Ltd.]. [R], [A] (2001-2011). (…)

3. In my capacity of Head of Legal and General Counsel I was personally involved in and was responsible for the negotiation and preparation of the Amicable Settlement on Resolution of Dispute Regarding [D]of 16 August 2010. (…)

4. On behalf of [ C ] from facts within my own knowledge I can declare the following:

It was the intention of [ C ] and [H1 Inc.] ([H1 Inc.]) to put into effect the Final Award of 28 October 2009 of the Arbitration Institute of the Stockholm Chamber of Commerce (…) by means of the Amicable Settlement Agreement. It was agreed that [H1 Inc.] would pay to [ C ] an amount of US dollar 438,375,000 on account of dividends which were paid out to [H1 Inc.] but to which [ C ] was entitled. In addition, [ C ] would dismiss the proceedings before the Court of Queen’s bench of Alberta initiated by [ C ] against [H1 Inc.] in 2010 and would waive all claims against [H1 Inc.] amongst which its right to transfer of the shares in [D]. [ C ] would be released from its obligations to pay the purchase price of US dollar 800 million. (…) ”.