4 March 2021

In the ongoing saga of claims against Bariven, a subsidiary of the Venezuelan state oil company PDVSA, the Dutch Court of Appeal in The Hague upheld an ICC award of approximately USD 70 million (including interest). Surpass, a Chinese state-owned manufacturer, obtained the award against Bariven in an ICC multi-contract arbitration (click here for an English machine translation of the decision).

The dispute originated from 26 purchase orders that Bariven left unpaid. Each of the 26 purchase orders include an identical arbitration agreement providing for ICC arbitration in The Hague. Surpass argued, based on Article 9 of the ICC Rules (allowing for the possibility of multi-contract arbitration), that the parties agreed to resolve the dispute in a single ICC arbitration procedure. Bariven, amongst other arguments against the merits of Surpass's claims, opposed that request. Bariven also initiated a multi-million counterclaim in the arbitration. In its award of 27 May 2019, the arbitral tribunal denied all of Bariven's defences and granted Surpass's full claim including full legal costs. The tribunal also denied Bariven's counterclaim.

Bariven tried to set aside (vernietiging) the award at the CoA. Bariven's request was solely founded on the argument that the parties allegedly did not agree to the possibility of resolving multiple contracts in a single arbitration. In its decision of 2 March 2021, the CoA rejected this argument and accepted Surpass's arguments that the parties did agree to the possibility of multi-contract arbitration. The CoA also held that even if there was no agreement to multi-contract arbitration, which would possibly constitute a violation of the tribunal's mandate, this violation would not be serious enough to warrant setting aside the award. This is because the parties did not dispute that there were 26 identical arbitration agreements referring to ICC arbitration. The CoA found that Bariven did not show its interest in having the dispute settled in 26 separate arbitrations.

This decision confirms that the ICC rules provide for an efficient way for parties to resolve disputes relating to multiple contracts, even where those contracts resulted from a series of separate individual transactions.

Surpass was represented, both in the arbitration and before the CoA, by a Houthoff team led by Dirk Knottenbelt and Thomas Stouten, who have been successful in several arbitrations against Bariven and are currently still involved in several matters against Bariven, PDVSA and Venezuela, both in arbitration and in court.