vonnis RECHTBANK AMSTERDAM Afdeling privaatrecht zaaknummer / rolnummer: C/13/536856 / HA ZA 13-237 Vonnis van 9 april 2014 in de zaak van 1. de rechtspersoon naar Israëlisch recht [eisers], gevestigd te [plaats] ([land]), 2.[eisers], wonende te [plaats] ([land]), 3. de rechtspersoon naar Amerikaans recht [eisers], gevestigd te [plaats] ([land]), 4. [eisers], wonende te [plaats] ([land]), eisers, advocaat mr. M. van Hooijdonk te Amsterdam, tegen 1. de rechtspersoon naar Belgisch recht D.D. MANUFACTURING N.V., gevestigd te Antwerpen (België), 2.[gedaagden], wonende te[plaats] ([land]), 3. de rechtspersoon naar Botswaans recht DDA OF BOTSWANA (PROPRIETARY) LTD, gevestigd te Gaborone (Botswana), 4. de rechtspersoon naar Israëlisch recht FTD DIAMONDS (ED GEMS LTD), gevestigd te Ramat Gan (Israël), 5. de rechtspersoon naar Zuid-Afrikaans recht LIFE DIAMOND CUTTING WORKS (PTY) LTD, gevestigd te Johannesburg (Zuid-Afrika), gedaagden, advocaat mr. M. van de Hel-Koedoot te Rotterdam. Eisers zullen hierna gezamenlijk (ook) [eisers] en gedaagden zullen gezamenlijk (ook) [gedaagden] worden genoemd. 1De procedure 1.1. Het verloop van de procedure blijkt uit: de dagvaarding van 9 november 2012, met producties, de conclusie van antwoord, met producties, het tussenvonnis van 19 juni 2013, waarbij een comparitie van partijen is bepaald, het proces-verbaal van comparitie van 29 oktober 2013 en de daarin genoemde stukken. 1.2. Ten slotte is vonnis bepaald. 2De feiten 2.1. Tussen 2004 en 2008 heeft een samenwerking bestaan tussen [eisers] en [gedaagden]. De samenwerking zag op het winnen, bewerken en verhandelen van diamanten in Botswana, Namibië en Zuid-Afrika. Partijen hebben geen schriftelijke afspraken gemaakt. Zowel de kosten als de opbrengsten werden door partijen verdeeld volgens hun aandelenverhouding in de verschillende ondernemingen in de betrokken landen. De over en weer gemaakte kosten en opbrengsten werden door partijen bijgehouden in een document genaamd ‘Cartis’. De afwikkeling van de samenwerking heeft tussen partijen tot geschillen geleid. 2.2. Partijen zijn aangesloten bij verschillende regionale handelsorganisaties, zogenaamde ‘bourses’ (beurzen). Deze beurzen zijn aangesloten bij de World Federation of Diamond Bourses (WFDB). Op 1 september 2011 hebben partijen een arbitrageovereenkomst gesloten, op grond waarvan zij hun geschillen aan drie door de WFDB benoemde arbiters (hierna: de arbiters of het scheidsgerecht) hebben voorgelegd. 2.3. Artikel 7 van de arbitrageovereenkomst bepaalt, onder meer: “The arbitrors shall not be bound by any substantive law, the laws of evidence and of civil procedure and shall be entitled to conduct, consider and decide on the Disputes in accordance with their sole discretion and in a manner that appears to them to be best and most beneficial for a fair honest and speedy resulotion if the Disputes and in accordance with trade rules and commercial practices prevailing in the diamond trade. […]” 2.4. In de arbitrageprocedure hebben partijen in de periode van oktober 2011 tot begin juni 2012 ieder ten minste drie schriftelijke stukken (‘briefs’) met bijlagen ingediend. Op 6 mei 2012 heeft een (procedurele) preliminary arbitration meeting plaatsgevonden en op 9, 10 en 11 juli 2012 is de zaak inhoudelijk op zitting behandeld. De transcripts van hetgeen tijdens deze zittingsdagen is besproken beslaan ruim 600 pagina’s in totaal. 2.5. Op 27 september 2012 hebben de arbiters vonnis gewezen. In dit vonnis (hierna: het arbitraal vonnis) is [eisers] – per saldo – veroordeeld om USD 7.933.440 aan [gedaagden] te betalen. 2.6. Het arbitraal vonnis bevat, voor zover hier relevant, de volgende overwegingen: “[…] The parties’ claims 23. The claims of the parties and their arguments, as these emerge from the pleadings that were filed and from their oral arguments in the scope of the arbitration proceedings, can be summed up briefly and in summary as follows: Claims from “the [gedaagden]” 24. “ [gedaagden] claims are comprised of the following causes of action: 24.1 Return of all the merchandise it is alleged belongs to “[gedaagden]”, which were goods in consignment that were not returned by “[eisers]” even though the return thereof had been demanded. 24.2 In the alternative, an aggregate amount of $12.050,843, which is comprised of diamonds that were not returned by “[eisers]”, the alleged value of which is a sum of $9,405,174 and in addition thereto monetary consideration in a sum of $2,645,669. 24.3 “ [gedaagden]” claims the return of payment of goods sent to [eisers] for polishing. These goods were not part of the disputed partnership assets at all. The value of these goods was non disputed and established at a sum of $801,164.64. 24.4 “ [gedaagden]” claims $ 8 million in respect to cost made for the operations in South Africa, Botswana and Namibia. 24.5 Expenses in respect of the conduct of the arbitration. 24.6 “ [gedaagden]” repudiated all “[eisers]’” claims. Claims from “the [eisers]” 25. “[eisers]” claimed an aggregate sum of $13,430,364 from [gedaagden] and to DD Manufacturing NV (DDM), which is comprised of the following causes of action and the following amounts: 25.1 A sum of $1,430,364 as a final accounting in respect of the partnership business in diamonds which was conducted between them. 25.2 A sum of $7,000,000 as a consequence of damages that were caused to “[eisers]” due to the stoppage of the commercial activities of the partnership in Botswana and in South Africa. 25.3 A sum of $5,000,000 in respect of damage to the good name of “[eisers]” and in respect of damage to reputation suffered by it as a consequence of the lodging of a claim by [gedaagden] and/or the companies under his control with the insurance company which insured the partnership’s diamond business, on a false and groundless allegation to the effect that “[eisers]” was unlawfully holding diamonds that are owned by “[gedaagden]”, which it is alleged were delivered on a consignment basis and were not returned despite demand. 25.4 Expenses in respect of conducting the arbitration. 25.5 “ [eisers]” repudiated all “[gedaagden] claims. 26. Having heard the parties at length, as already mentioned, as well as hearing anyone who attended the arbitration on their behalf, including the bookkeepers and financial managers, and having carefully read the documents that were submitted, including the pleadings and the appendices thereto, we have arrived at the following decisions: […] Absence of a partnership agreement […] 36. […] “[gedaagden]” continued to behave as though “business as usual” and carried on selling merchandise even though it knew that the partnership had come to an end, while “[eisers]” retained possession of the merchandise it had, did not transfer it to “[gedaagden]” and at the end of 2009 created “a sale” of those goods from[eisers] to [eisers] at a price it saw fit to name. 37. Both parties acted in an improper way. However, whereas “[gedaagden]” continued on the face of things with the arrangement that had applied in the past, […] the conduct of “[eisers]” is deserving of condemnation, because not only did it retain possession of the merchandise and did not transfer it for sale through “[gedaagden]”, but decided at the end of 2009 to sell the merchandise to itself, at a price fixed by itself, did not report about this to “[gedaagden]” and even tried, at the start of the arbitration proceedings, to hide this fact from the arbitrators. […] 40. With all the regret attaching to this, “[eisers]” attempted […] to mislead not only “[gedaagden]” but also the arbitrators and the true facts became clear when[eisers] testified in the arbitration that he, had purchased for himself from [eisers] all the merchandise at prices he had fixed himself. The accounting between the parties both in relation to the Cartis and also with respect to the inventory of diamonds 41. The commercial activities and the on-going accounting system between the parties was conducted in the scope of a ledger card (Cartis), which contained various financial debits and credits that were connected with the partnership’s activities. The parties kept the Cartis jointly and concurrently and they regularly checked and balanced the debits and credits that were included in it. The financial movements arising from the purchase of merchandise, the production and sale thereof and various expenses connected therewith were included in the Cartis. 42. The Cartis did not reflect the inventory that was in the possession of the two parties at any given time. […] 44. In order to discuss and decide on the reciprocal claims of the parties which relate to the details of the debits and the credits of the one as against the other, we are obliged to decide as between the opposing positions of the parties with respect to a number of pivotal subjects: 44.1 Determining the state of the Cartis at a date that will be determined by us and details of the balances included therein, and, 44.2 The aspect of the expenses that were allegedly incurred by “[gedaagden]” during the period in which the partnership existed and in connection with the business of the partnership, and which do not find expression in the Cartis, and, 44.3 The aspect of the inventory of diamonds that was in the possession of the parties and which were sold by them, determining the value thereof and how it should be calculated, and, 44.4 The aspect of the inventory of diamonds which remained with “[gedaagden]”, determining the value thereof and how it should be calculated. 45. In order to arrive at a decision on these topics, we will also be obliged to decide on the opposing positions of the parties in relation to the questions as to how the inventory of diamonds that was in the possession of the parties should be assessed, whether on the basis of the actual cost thereof, as “[eisers]” argues, or on the basis of the actual selling prices thereof, as “[gedaagden]” argues, or perhaps on the basis of the market value thereof at the time of its sale, or at another date that will be determined by us, […]. State of the Cartis 46. After we had heard the parties’ arguments and testimonies, we determine that the last date on which the Cartis was agreed – subject to a number of changes and updates about which there is really no dispute – was at the end of December 2009. […] 48. We therefore determine that the sales values of merchandise sold by “[gedaagden]”, and which was included in the Cartis up to the end of December 2009, were agreed to by both the parties. […] 50. We therefore accept the contention that the Cartis was agreed to by the parties as at the end of December 2009 – subject to a few exceptions as will be described below, subject to the issue of expenses and subject to the issue of the inventory that remained, and that on this basis “[gedaagden]” was indebted at that time to “[eisers]” in a sum of $3.989.481,15. 51. With respect to this amount the following financial adjustments to the cart[i]s must be made: 51.1 Crediting of “[eisers]” in respect of “agreed errors” in a sum of $18.000. 51.2 After making the abovementioned debits and credits, we determine that according to the state of the Cartis at the end of December 2009 – excluding the issue of expenses and the sale of inventory – the [gedaagden] owed the [eisers] a sum of $ 4.007.481. […] The expenses issue 53. There is really no dispute between the parties that expenses were actually been disbursed by “[gedaagden]” in connection with the partnership’s business, and that these expenses were not debited in the Cartis during a period of some four whole years, and that “[gedaagden]” is entitled to a credit in the Cartis in respect of these expenses that were incurred in connection with the partnership’s business, but the parties were divided in their opinions on the question as to what the total of these expenses was. […] 59. Nonetheless, we cannot ignore the immense negligence that accompanied the handling of the expenses by “[gedaagden]” and the demand for the expenses at such a late stage. We determine that this negligence has the effect of creating a reliance for “[eisers]” and a legitimate expectation that it would not be debited with such considerable expenses, or that the value thereof is far lower, and therefore we have decided to charge the partnership only with 50% of the disputed expenses (i.e the sum of 5 million US$) and as a consequence of this to credit “[gedaagden]” in the Cartis with a sum of 50% of 5 million times 25% which is the average share of [eisers] in respect of the disputed expenses i.e- $5.000.000*50%*25%=$625.000 for [gedaagden]. The nondisputed costs of $3.000.000 were already credited in the Cartis. […] Value of the merchandise […] 63. […] It is, indeed, correct that the partnership relationship terminated at the end of December 2008, but at that time a large inventory of diamonds still remained in the possession of the two parties. […] It is difficult to assume that “[eisers]” did not know that “[gedaagden]” was selling the inventory in its possession during the year 2009 and it is also difficult to assume that “[eisers]” did not know that “[gedaagden]” was unaware of the state at the market at that time and the plunge in prices, so that it was possible to know that was involved was a sale below the cost price. “[eisers]” did not raise any complaint or allegation in real time and furthermore it alleged in writing in the framework of this arbitration that the state of the Cartis at the end of 2009 was agreed to by the parties, subject to e few adjustments and the question of expenses, so what does it have to complain about now?[…] 68. In addition we determine that for purposes of the accounting between the parties, it is necessary to determine the value of the merchandise that remained in the possession of each party according to its market value and not on the basis of its cost. “[gedaagden]” made a practice of selling the merchandise according to its market value and “[eisers]” benefited from the profits on the sale. […] 69. We rule that the value of the merchandise that remained with “[eisers]” and was $20.022.293 at “list” prices, and had a market value of $11.012.261, were sold by [eisers] to [eisers] for $9,342,329. In the state of the market when the goods were sold, [eisers] decided to have a discount of 53,34% when selling to [eisers]. This was considerably too low and a discount of 45% is the minimum acceptable discount for a sale to a group company. In light of this, “[gedaagden]” must be credited in the Cartis with the sum of $1.660.931*75%=$1.252.448. In addition to this “the “[gedaagden]” is entitled to 75% of the value of those goods “[eisers]” sold to himself being 75% of $11.012.261=$8.259.196. We also order that the total sum of $9,511,644 shall bear interest of 4% per year beginning at January 2009 and until the date of our award, amounting to additional $1,437,315. […] 89. […] SUMMARY OF CALCULATIONS MADE STARTING IN THE CREDIT OF [eisers]- $3,989,481 AGREED CORRECTIONS- $ 18,000 REMAINING ROUGH- $ 625,000 IN FAVOR OF [eisers]- $4,632,481 VALUE OF GOODS SOLD BY [eisers]- $8,259,196 VALUE CORRECTIONS OF GOODS- $1,252,448 INTEREST FOR GOODS HELD WITH [eisers]- $1,437,315 RETURN OF GOODS BELONGING TO DD- $ 801,164 INTEREST- $ 90,798 SA EXPENES- $ 625,000 COST OF ARBITRATION- $ 100,000 IN FAVOR OF [gedaagden]- $12,565,921 TOTAL IN FAVOR OF [gedaagden]- $7,933,440 […]” 2.7. [eisers] kon (en kan) zich niet met het arbitraal vonnis verenigen en heeft de arbiters gemotiveerd verzocht om door haar gesignaleerde (rekenkundige) fouten in het vonnis te herstellen. In een schriftelijk stuk van 24 oktober 2012 heeft het scheidsgerecht dit verzoek van [eisers] afgewezen. Dit stuk heeft, voor zover van belang, de volgende inhoud: “[…] Resolution We have received requests submitted […] on behalf of the [eisers] on two issues: […] (
AI-uitleg op basis van de officiële wettekst. Indicatief, vervangt geen juridisch advies.