Court of Cassation, No. 14-26.279

Court of Cassation, First Civil Chamber, 16 December 2015, No. 14-26.279

Challenged decision: Paris Court of Appeal, Pole 1, First Chamber, 14 October 2014, No. 13/13459

COLUMBUS HOLDINGS FRANCE

COLUMBUS ACQUISITIONS INC

Vs.

S.A. AUTO-GUADELOUPE INVESTISSEMENT

CARIBBEAN FIBER HOLDINGS LP

BAULAND CARBONI MARTINEZ & ASSOCIÉS

On the sole ground, hereafter annexed:

Whereas, according to the judgment under appeal (Paris, 14 October 2014), the French company AGI, the American company Caribbean Fiber Holdings (CFH), whose capital is wholly owned by the American company Leucadia National Corporation, and the Barbados company Columbus Acquisitions and the French company Columbus Holdings (Colombus) have concluded an agreement concerning the proposed sale by the first two companies to the second of the capital of the French company Global Caribbean Fiber (GCF); AGI having waived the sale, the Columbus companies initiated arbitration proceedings pursuant to the arbitration clause stipulated in the agreement; that, by an award rendered in Bridgetown (Barbados) on 27 March 2011, the sole arbitrator, Mr. X…, decided that AGI breached the agreement and referred the claims for damages and costs of the proceedings to a later award; that AGI and its agents, ex-officio, appealed the order granting the enforcement (in French Exequatur) of the award;

Whereas the Columbus companies object to the decision which overturns this order;

Whereas the judgment notes that in September 2009, the sole arbitrator issued a declaration of independence stating that Fasken Martineau, in which he was practicing as a lawyer, was not currently providing advice to Leucadia National Corporation; he noted that on 15 December 2010, Fasken Martineau’s website published the information, which was picked up in January 2011 by a business magazine for lawyers, that Leucadia National Corporation sold its interest in a Canadian copper mine. The website also indicated that Leucadia National Corporation was assisted in this transaction, which had been underway since 2005, by a team of three lawyers from Fasken Martineau and that the proceedings before M. X…, had been closed since August 2010 and the case was under advisement at the time the existence of this advisory role was made public. The Court of Appeal pointed out that the arbitrator did not mention this in his declaration of independence and that the fact was not known to AGI prior to the beginning of the arbitration. The court of appeal also noted that, during the arbitration proceedings, the obligation to investigate Mr. X…’s independence did not burden AGI, given the guarantees he provided in his declaration. Mr. X… did not reveal a transaction that was clearly important for the firm, given the wide publicity given by the firm. The Court of Appeal concluded exactly from this that these circumstances, which were unknown to AGI, were such as to reasonably doubt the arbitrator’s independence and impartiality. The Court of Appeal inferred that the arbitral tribunal was improperly constituted; that the ground of appeal, which, in its first part, criticised an erroneous but overabundant reason for the ruling, could not be upheld ;

FOR THESE REASONS:

DISMISSES the appeal;

Orders the companies Columbus Acquisitions and Columbus Holdings France to pay the costs;

In view of article 700 of the Code of Civil Procedure, dismisses their request and orders them to pay to the AGI company and its representatives, ex-officio, the total sum of EUR 5,000;

Thus concluded and judged by the Court of Cassation, First Civil Chamber, and pronounced by the Chairman in his public hearing of sixteenth of December two thousand and fifteen.