2.3.In mei 2014 is KT Kinetics een arbitrageprocedure gestart voor het Hof van Arbitrage van de International Chamber of Commerce in Geneve, Zwitserland (hierna: de ICC). In deze procedure heeft KT Kinetics van EMG het bedrag van € 4.223.790 en rente gevorderd, alsmede vergoeding van de door haar geleden schade. Tijdens deze procedure hebben KT Kinetics en EMG een minnelijke regeling getroffen, die zij hebben vastgelegd in een vaststellingsovereenkomst van 22 april 2016. Deze overeenkomst is vervolgens op verzoek van partijen vastgelegd in de scheidsrechtelijke uitspraak van de ICC van
8 augustus 2016 (hierna ook: het arbitraal vonnis). Dit onderdeel van het arbitraal vonnis, waarin tevens de gehele vaststellingsovereenkomst is opgenomen, luidt als volgt:
“107 (a) The above Settlement Agreement of the parties dated 22 April 2016 is recorded
in the form of an award by consent as requested by the Parties.
108 (b) The amount of Euro 4,223,790 (four million two hundred twenty three thousand
seven hundred and ninety) under the Suspension Agreement and the amount of the
Suspension Fee of Euro 350,000 (three hundred fifty thousand) are awarded to the
Claimant (hereinafter together referred to as the “Settlement Amount”). Subject to
paragraphs 8(e) below, the Settlement Amount has become due and payable upon signing
of the Settlement Agreement.
109 (c) [...]. The total amount of the Costs of the Arbitration was fixed by the Court as
US dollars 89,000 (eighty nine thousand) and the amount of 89,000 US dollars (eighty
nine thousand) has been paid already by the Claimant. The 50% of this amount i.e. US
dollars 44,500 (forty four thousand five hundred) is awarded to Claimant and the
Respondent is obliged to pay the Claimant the amount of US dollars 44,500 (forty four thousand five hundred). Such amount will become due and payable by the Respondent on
30 June 2016 or earlier simultaneously with the payment of the Settlement Amount. 50%
of the Costs of the Arbitration that KT may be required to pay in the future in accordance
with Article 36 of the ICC Rules shall become due and payable on the date on which they
are paid by KT.
110 (d) The Respondent agrees that in the event the Settlement Amount and the Costs of
the Arbitration are not paid in full by 31 December 2016, interest shall accrue on the
portion of the amount that has not been paid as of that date for the period until the
payment is made (hereinafter referred to as the “Interest”). Such Interest shall be
calculated in accordance with Article 7 of the Suspension Agreement.
111 (e) The Claimant agrees not to take any enforcement actions in respect of the
Settlement Amount and the Costs of the Arbitration prior to 30 June 2016. This deadline
may be extended in accordance with Section 4.2. of the Settlement Agreement.
112 (f) The parties have agreed that subject to the requirements of applicable law, the
Respondent shall in any event pay the Settlement Amount, the Costs of the Arbitration
and Interest (if any) to the Claimant no later than ten (10) Business Days following receipt
by the Respondent of a total or partial payment pursuant to the award in the EMG ICC
Dispute or the EMG Cairo Pending Dispute (as these terms are defined in the Settlement Agreement). For the avoidance of doubt, a partial payment does not relieve the Respondent from its obligation to pay in full the remaining amounts owed to KT pursuant to the Settlement Agreement.
113 (g) This Award by Consent shall become immediately enforceable as of the date of its issuance.”