Governing Law; Dispute Resolution. (a) THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Gastar Exploration LTD)

Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The courts in the Province of Ontario shall have non-exclusive jurisdiction over all matters relating to the Agreement. The 1980 United Nations Convention on Contracts for the International Sale of Goods (a“CISG”) ~~THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED~~ and any reference thereto are explicitly excluded. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, JURY FOR DISPUTES ARISING OUT OF OR ~~RELATING~~ RELATED TO THIS AGREEMENT, ~~ANY ANCILLARY AGREEMENT OR~~ INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE ~~TRANSACTIONS THEY CONTEMPLATE~~PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, OR AND OTHER CHALLENGES TO THE ~~VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE ~~AGREEMENT TO ARBITRATE AS SET OUT~~ WAIVER IN ~~THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO~~ THE ~~BENEFIT~~ PRECEDING SENTENCE APPLIES REGARDLESS OF THE ~~PARTIES~~ TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THESE TERMS AND ~~THEIR AFFILIATES~~EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY ZEISS’S GROSS NEGLIGENCE OR FRAUDULENT REPRESENTATION, ZEISS SHALL NOT BE LIABLE FOR ANY CLAIM BY BUYER FOR ANY LOSS OR DAMAGE WHATSOEVER AND HOWSOEVER ARISING, UNLESS SUCH CLAIM HAS BEEN ISSUED IN A COURT OF COMPETENT JURISDICTION WITHIN TWELVE (12) MONTHS FROM THE DATE ON WHICH BUYER HAS FIRST BECOME AWARE OR OUGHT TO HAVE REASONABLY BECOME AWARE (WHICHEVER OCCURS EARLIER) OF THE CIRCUMSTANCES GIVING RISE TO SUCH CLAIM, FAILING WHICH ANY SUCH CLAIM SHALL BECOME TIME BARRED IN ITS ENTIRETY. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 2 contracts

Samples: Terms and Conditions of Sale, Terms and Conditions of Sale

Governing Law; Dispute Resolution. ~~(a)~~ THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY BY, AND CONSTRUED ~~AND INTERPRETED~~ IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORKWITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES AND RENOUNCES THE JURISDICTION OF ANY MEXICAN COURT AND AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN EQUITY, EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ~~SHALL GOVERN AND (IV) OHIO~~OR, IF SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE ~~LAWS~~ SUPREME COURT OF THE STATE OF ~~OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS~~ NEW YORK FOR THE COUNTY OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE NEW YORK (THE “~~ICC”) THEN IN EFFECT (THE “ICC RULES~~CHOSEN COURTS”). EACH PARTY (I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN COURTS, ~~EXCEPT~~ (II) WAIVES ANY OBJECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURTS, (III) WAIVES ANY OBJECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THAT THE CHOSEN COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY PARTY HERETO, (IV) AGREES THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTIONS 7.3 (NOTICES) AND 7.7 (SERVICE OF PROCESS) OF THE SHAREHOLDERS AGREEMENT (IN THE CASE OF THE SA PARTIES), SECTION 12.3 (NOTICES) OF THE PURCHASE AGREEMENT (IN THE CASE OF THE PA PARTIES) OR IN SUCH OTHER MANNER AS ~~MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14~~ MAY BE PERMITTED BY LAW SHALL BE ~~BINDING~~ VALID AND SUFFICIENT SERVICE THEREOF AND (V) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON ~~AND SHALL INURE TO~~ THE ~~BENEFIT OF THE PARTIES AND THEIR AFFILIATES~~JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 2 contracts

Samples: Release Agreement (Intcomex, Inc.), Option Agreement (Intcomex, Inc.)

Governing Law; Dispute Resolution. ~~(a)~~ THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY AND CONSTRUED AND ~~INTERPRETED~~ ENFORCED IN ACCORDANCE WITH THE ~~LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE~~ INTERNAL LAWS OF THE STATE OF ~~WEST VIRGINIA SHALL GOVERN, (III) NEW YORK,~~ DELAWARE WITHOUT GIVING EFFECT TO THE ~~LAWS~~ PRINCIPLES OF ~~THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY~~ CONFLICTS OF LAW ~~RULE~~ THEREOF. IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES ANY LITIGATION, PROCEEDING OR ~~PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF~~ OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING TO ~~THIS AGREEMENT, ANY ANCILLARY AGREEMENT~~ NEGOTIATION AND EXPLORATION WITH RESPECT TO OR ~~THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY~~ ENTERING INTO OF THIS AGREEMENT OR ANY ~~ANCILLARY AGREEMENT~~MATTERS DESCRIBED OR CONTEMPLATED HEREIN, THE PARTIES TO THIS AGREEMENT HEREBY (A) AGREE THAT ANY SUCH LITIGATION, PROCEEDING OR OTHER LEGAL ACTION SHALL BE INSTITUTED EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION LOCATED WITHIN THE STATE OF DELAWARE, WHETHER ~~SOUNDING~~ A STATE OR FEDERAL COURT; (B) AGREE THAT IN ~~CONTRACT~~THE EVENT OF ANY SUCH LITIGATION, ~~TORT~~PROCEEDING OR ACTION, ~~STATUTE~~SUCH PARTIES WILL CONSENT AND SUBMIT TO PERSONAL JURISDICTION IN ANY SUCH COURT DESCRIBED IN CLAUSE (A) OF THIS SECTION 6.8 AND TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE WITH THE RULES AND STATUTES GOVERNING SERVICE OF PROCESS; (C) AGREE TO WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, ~~COMMON LAW~~PROCEEDING OR ACTION IN ANY SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ~~EQUITY~~ ACTION WAS BROUGHT IN AN INCONVENIENT FORUM; (~~A “DISPUTE”~~D) AGREE AS AN ALTERNATIVE METHOD OF SERVICE TO SERVICE OF PROCESS IN ANY LEGAL PROCEEDING BY MAILING OF COPIES THEREOF TO SUCH PARTY AT ITS ADDRESS SET FORTH IN SECTION 6.2 FOR COMMUNICATIONS TO SUCH PARTY; (E) AGREE THAT ANY SERVICE MADE AS PROVIDED HEREIN SHALL BE ~~FINALLY, EXCLUSIVELY~~ EFFECTIVE AND ~~CONCLUSIVELY RESOLVED~~ BINDING SERVICE IN EVERY RESPECT; AND (F) AGREE THAT NOTHING HEREIN SHALL AFFECT THE RIGHTS OF ANY PARTY TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATESLAW. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 2 contracts

Samples: Rollover and Support Agreement (Novartis Pharma Ag), Rollover and Support Agreement (Liu Tony)

Governing Law; Dispute Resolution. EQUITABLE RELIEF. (a) THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY AND CONSTRUED ~~AND INTERPRETED~~ IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW). (b) EACH PARTY IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING BY IT AGAINST ANY OF THE OTHER PARTIES WITH RESPECT TO ITS RIGHTS, OBLIGATIONS OR LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL ~~GOVERN~~ BE BROUGHT BY SUCH PARTY ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY, AND EACH PARTY HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE JURISDICTION OF EACH OF THE AFORESAID COURTS IN PERSONAM, WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING (IVINCLUDING, WITHOUT LIMITATION, CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, ACTIONS WITH MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY IS IMPLIED). EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL IN ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. (c) ~~OHIO~~EACH PARTY HERETO HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM (IN SUCH CAPACITY, THE "PROCESS AGENT"), WITH XX XXXXXX XX 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF TO THE PROCESS AGENT, PROVIDED THAT IN THE CASE OF ANY SUCH SERVICE UPON THE PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE SHALL ALSO DELIVER TO A COPY THEREOF TO SUCH PARTY IN THE MANNER PROVIDED IN SECTION 6.01. EACH PARTY SHALL TAKE ALL SUCH ACTION AS MAY BE NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT OR TO APPOINT ANOTHER AGENT SO THAT SUCH PARTY WILL AT ALL TIMES HAVE AN AGENT FOR SERVICE OR PROCESS FOR THE ABOVE PURPOSES IN NEW YORK, NEW YORK. IN THE EVENT OF THE TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE PROCESS AGENT TO ANY OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE OR ASSETS OR OTHERWISE, SUCH OTHER CORPORATION SHALL BE SUBSTITUTED HEREUNDER FOR THE PROCESS AGENT WITH THE SAME EFFECT AS IF NAMED HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED AIRMAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGMENT OF RECEIPT OF SUCH REGISTERED MAIL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH OF FT AND DT EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING WAIVER IS INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY NEW YORK AND ~~CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION~~ OF THE ~~INTERNATIONAL CHAMBER~~ UNITED STATES OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leasesAMERICA. (d) ~~The arbitration proceedings shall be conducted in the English language~~EACH PARTY HERETO AGREES THAT MONEY DAMAGES WOULD NOT BE A SUFFICIENT REMEDY FOR THE OTHER PARTIES HERETO FOR ANY BREACH OF THIS AGREEMENT BY IT, ~~and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation~~AND THAT IN ADDITION TO ALL OTHER REMEDIES THE OTHER PARTIES HERETO MAY HAVE, THEY SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH. ~~The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston~~EACH PARTY HERETO AGREES NOT TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES THAT SUCH A BREACH HAS OCCURRED, ~~Texas~~AND TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND IN CONNECTION WITH SUCH REMEDY. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Top Up Right Agreement (Deutsche Telekom Ag)

Governing Law; Dispute Resolution. ~~(a) THIS AGREEMENT AND~~ This Agreement and any claim, action or dispute arising hereunder will be governed by the laws of the State of Texas, without regard to its conflicts of law principles. CREDITNOVO LLC is located in Texas and that is where you entered into this Agreement. IN THE ~~LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS~~ EVENT OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY ~~CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY,~~ DISPUTE ARISING OUT OF OR ~~RELATING~~ RELATED TO THIS AGREEMENT, YOU AND CREDITNOVO SHALL FIRST ATTEMPT IN GOOD FAITH TO PROMPTLY RESOLVE SUCH DISPUTE THROUGH NEGOTIATION. IN THE EVENT OF ANY ~~ANCILLARY AGREEMENT~~ DISPUTE, YOU (OR YOUR AUTHORIZED REPRESENTATIVE) AND CREDITNOVO SHALL MEET AT LEAST ONCE TO NEGOTIATE IN GOOD FAITH TO RESOLVE THE ~~TRANSACTIONS THEY CONTEMPLATE~~DISPUTE. EITHER YOU OR CREDITNOVO MAY REQUEST TO MEET TO CONDUCT SUCH NEGOTIATION OF A DISPUTE WITHIN FIFTEEN (15) CALENDAR DAYS OF SUCH REQUEST. IF YOU AND CREDITNOVO ARE NOT ABLE TO CONDUCT SUCH MEETING WITHIN THE SAID FIFTEEN (15) CALENDAR DAY PERIOD, OR ARE UNABLE TO RESOLVE THE ~~VALIDITY~~DISPUTE WITHIN THIRTY (30) CALENDAR DAYS AFTER THE INITIAL NEGOTIATION MEETING, ~~INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ THEN YOU AND CREDITNOVO AGREE TO SUBMIT THE DISPUTE TO MEDIATION. YOU AND CREDITNOVO FURTHER AGREE THAT PARTICIPATION IN MEDIATION IS A CONDITION PRECEDENT TO ARBITRATION. EITHER YOU OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE CREDITNOVO MAY REQUEST MEDIATION UPON WRITTEN NOTICE TO THE ~~BENEFIT~~ OTHER PARTY, AND THE MEDIATION MUST TAKE PLACE WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE SUCH NOTICE IS GIVEN. YOU AND CREDITNOVO MUST JOINTLY APPOINT A MUTUALLY ACCEPTABLE MEDIATOR. IF YOU AND CREDITNOVO ARE UNABLE TO AGREE UPON THE APPOINTMENT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.A MEDIATOR WITHIN SEVEN

Appears in 1 contract

Samples: Provider License Agreement

Governing Law; Dispute Resolution. This Agreement will be interpreted under the laws of the State of New York without regard to its conflicts of law rules. The 1980 United Nations Convention on Contracts for the International Sale of Goods (a“CISG”) ~~THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED~~ and any reference thereto are explicitly excluded. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, JURY FOR DISPUTES ARISING OUT OF OR ~~RELATING~~ RELATED TO THIS AGREEMENT, ~~ANY ANCILLARY AGREEMENT OR~~ INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE ~~TRANSACTIONS THEY CONTEMPLATE~~PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, OR AND OTHER CHALLENGES TO THE ~~VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE ~~AGREEMENT TO ARBITRATE AS SET OUT~~ WAIVER IN ~~THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO~~ THE ~~BENEFIT~~ PRECEDING SENTENCE APPLIES REGARDLESS OF THE ~~PARTIES~~ TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THESE TERMS AND ~~THEIR AFFILIATES~~EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY ZEISS’S NEGLIGENCE, FRAUDULENT REPRESENTATION OR WHERE BUYER ACTS AS A CONSUMER, ZEISS SHALL NOT BE LIABLE FOR ANY CLAIM BY BUYER FOR ANY LOSS OR DAMAGE WHATSOEVER AND HOWSOEVER ARISING, UNLESS SUCH CLAIM HAS BEEN ISSUED IN A COURT OF COMPETENT JURISDICTION WITHIN TWELVE (12) MONTHS FROM THE DATE ON WHICH THE BUYER HAS FIRST BECOME AWARE OR OUGHT TO HAVE REASONABLY BECOME AWARE (WHICHEVER OCCURS EARLIER) OF THE CIRCUMSTANCES GIVING RISE TO SUCH CLAIM, FAILING WHICH ANY SUCH CLAIM SHALL BECOME TIME BARRED IN ITS ENTIRETY. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Terms and Conditions of Sale

Governing Law; Dispute Resolution. (a) THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION ~~14.14~~ 8.10 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The ~~claimant~~ claimant(s) shall nominate one arbitrator and the ~~respondent~~ respondent(s) shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation of the appointment of the party-nominated arbitrators by the ICC Court of Arbitration (~~the~~ “ICC Court”~~) of the appointment of the second arbitrator~~). If the chair or any other arbitrator is not timely appointed, on the request of ~~either Party~~ any party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by ~~either Party~~ any party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the ~~Parties~~ parties may be joined in a single arbitration by the ~~claimant~~claimant(s), and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or ~~both~~ more of the ~~Parties~~ parties shall, at the request of ~~either Party~~any party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither ~~Party~~ party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The ~~Parties~~ parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each ~~Party~~ party shall have the right to request the other ~~Party~~ party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the ~~law~~ Law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The ~~artibtral~~ arbitral tribunal shall not be empowered to award exemplary, punitive, treble, indirect, or consequential damages, and the parties and their respective Affiliates waive any right they may have to recover such damages ~~limited by Section 12.4(d)~~from one another. In addition to direct damages~~, subject to Section 12.6~~, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing ~~Party~~party or parties. The award shall include interest, at a rate equal to the Specified ~~Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law)~~Rate, from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the ~~Parties~~ parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 ~~et. seq~~et.seq. The award shall be the sole and exclusive remedy between the ~~Parties~~ parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a ~~Party~~ party or any of its assets, as applicable. The ~~Parties~~ parties and their respective Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. ~~All Parties~~ The parties and their respective Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The ~~Parties~~ parties and their respective Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the ~~Parties~~ parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The ~~Parties~~ parties and their respective Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the ~~Parties~~ parties and their respective Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section ~~14.7~~8.3. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section ~~14.14(j~~8.10(j) for service of process in Texas ~~until the earlier~~ for a period of ~~(a)~~ one year following the expiration or termination of this ~~Agreement and (b) the expiration or termination of the Participation~~ Agreement~~; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer~~. The Parties agree that service of process in any court proceeding of the type described in Section ~~14.14(h~~8.10(h) or Section ~~14.14(i~~8.10(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section ~~14.7~~8.3. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Participation Agreement (Gastar Exploration LTD)

Governing Law; Dispute Resolution. (a) THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall This Agreement is made under and will be ~~comprised of three arbitrators. The claimant shall nominate one arbitrator~~ governed by and ~~the respondent shall nominate one arbitrator~~ construed in accordance with the ~~ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days~~ laws ofthe State of ~~the confirmation by the ICC Court~~ Texas (except that body of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translationlaw controlling conflicts oflaw). The ~~arbitration proceedings shall be conducted and~~ parties will endeavor to settle amicably by mutual discussions any ~~arbitral award shall be rendered in Houston~~disputes, ~~Texas. (e) Any claim that involves a Dispute relating~~ claims, or actions whatsoever related to ~~rights~~ this Agreement. Notwithstanding the foregoing, any disputes, claims, or ~~obligations that are also~~ actions between the ~~subject of a dispute arising under or relating to another agreement involving one or more of the Parties~~ parties may be ~~joined~~ brought in a ~~single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights~~ state or ~~obligations that are also at issue~~ federal court in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in HoustonXxxxxxx Coun , Texas. ~~Without prejudice~~ CIMS and Customer consent to ~~such provisional remedies as may be available under~~ the exclusive jurisdiction of ~~a court sitting~~ such courts located in ~~Houston~~Xxxxxxx County, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages Texas for the ~~failure~~ resolution of any ~~party to respect the arbitral tribunal’s orders to that effect~~such disputes, claims, or actions. Page 9 ofl3 CLINICAL IMAGE MANAGEMENT SYSTEMS, LLC Customer: Xxxxxxx County Printed Name: Signature: ---------------�- CIMS' RESPONSIBILITY SHALL BE TO REPAIR OR REPLACE EQUIPMENT, PARTS, OR PROGRAMS WHICH IT SELLS, FURNISHES, OR LICENSES AND WHICH ARE FOUND TO BE DEFECTIVE OR NOT PERFORMING TO INDUSTRY STANDARD WITHIN THE APPLICABLE WARRANTY PERIOD, OR UPON FAILURE OF SUCH REMEDY, TO PROMPTLY REFUND TO CUSTOMER THE FULL PURCHASE PRICE OF THE EQUIPMENT, PART, OR PROGRAM THAT IS THE BASIS OF THE CLAIM. CUSTOMER UNDERSTANDS THE USE AND POSSESSION OF THE EQUIPMENT BY CUSTOMER SHALL BE SUBJECT TO AND CONTROLLED BY THE TERMS OF ANY MANUFACTURER'S OR, IF APPROPRIATE, SUPPLIER'S WARRANTY, AND CUSTOMER AGREES TO LOOK TO THE MANUFACTURER OR, IF APPROPRIATE, SUPPLIER WITH RESPECT TO ALL MECHANICAL, SERVICE AND OTHER CLAIMS, AND THE RIGHT TO ENFORCE ALL WARRANTIES MADE BY SAID MANUFACTURER ARE HEREBY, TO THE EXTENT CIMS HAS THE RIGHT, ASSIGNED TO CUSTOMER. THE WARRANTIES EXPRESSED IN THlS AGREEMENT AND ADDENDUM ARE THE EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ANY ORAL REPRESENTATION AND OTHER WARRANTIES AND DAMAGES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY. CIMS HAS NOT MADE NOR DOES IT MAKE ANY OTHER WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Master Services Agreement

Governing Law; Dispute Resolution. ~~(a)~~ THIS ~~AGREEMENT~~ AGREEMENT, AND ALL OF THE ~~LEGAL RELATIONS BETWEEN~~ RIGHTS AND DUTIES OF THE PARTIES HERETO ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED ~~BY AND~~ BY, CONSTRUED AND ~~INTERPRETED~~ ENFORCED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIAWITH, THE LAWS OF THE STATE OF ~~WEST VIRGINIA SHALL GOVERN~~TEXAS, ~~(III) NEW YORK,~~ WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. THE ~~STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO,~~ PARTIES IRREVOCABLY CONSENT TO THE ~~LAWS~~ EXCLUSIVE JURISDICTION OF THE STATE DISTRICT COURTS OF ~~OHIO SHALL GOVERN)~~XXXXXX COUNTY, ~~EXCLUDING~~ TEXAS WITH RESPECT TO ANY ~~CONFLICTS OF LAW RULE~~ MATTER ARISING FROM OR ~~PRINCIPLE THAT MIGHT REFER~~ RELATING IN ANY WAY TO THE ~~LAWS~~ SUBJECT MATTER OF ~~ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO~~ THIS AGREEMENT, ~~ANY ANCILLARY AGREEMENT~~ OR THE TRANSACTIONS ~~THEY CONTEMPLATE~~CONTEMPLATED HEREBY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, TO VENUE IN THE STATE DISTRICT COURTS OF XXXXXX COUNTY, TEXAS, OR ~~THE VALIDITY~~BASED ON FORUM NON CONVENIENS, ~~INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ WHICH A PARTY MAY NOW OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE HEREAFTER HAVE TO THE ~~BENEFIT~~ BRINGING OF ~~THE PARTIES AND THEIR AFFILIATES~~ANY ACTION OR PROCEEDING IN SUCH JURISDICTION. NOTHING HEREIN SHALL PRECLUDE A PARTY FROM CONSENTING TO REMOVAL TO FEDERAL COURT. SERVICE OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURTS. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Project Agreement, Settlement Agreement and Mutual Release (NRG Energy, Inc.)

Governing Law; Dispute Resolution. (a) THIS AGREEMENT IS MADE PURSUANT TO AND ~~THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF ~~WEST VIRGINIA SHALL GOVERN~~DELAWARE, NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT OR ANY SUBSCRIPTION AGREEMENT IS EXECUTED BY ANY MEMBER OR PROSPECTIVE MEMBER OR THE LOCATION OF ANY OFFICE, VENTURE OR OPERATION OF THE PLATFORM OR ANY MEMBER. (~~III~~b) ~~NEW YORK~~THE MEMBERS, THE ~~LAWS~~ SPONSOR AND THE PLATFORM (THE "PARTIES") HEREBY AGREE THAT THE PARTIES SHALL SUBMIT ALL CONTROVERSIES ARISING AMONG THEM IN CONNECTION WITH THE PLATFORM OR ITS BUSINESSES OR CONCERNING ANY TRANSACTION, DISPUTE OR THE CONSTRUCTION, PERFORMANCE OR BREACH OF THIS OR ANY OTHER AGREEMENT, WHETHER ENTERED INTO PRIOR TO, ON OR SUBSEQUENT TO THE DATE HEREOF TO ARBITRATION IN ACCORDANCE WITH THE PROVISIONS SET FORTH BELOW AND UNDERSTAND THAT: (i) ARBITRATION IS FINAL AND BINDING ON THE PARTIES. (ii) THE PARTIES ARE WAIVING THEIR RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL. (iii) PRE-ARBITRATION DISCOVERY GENERALLY IS MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS. (iv) THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING, AND A PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY ARBITRATORS IS STRICTLY LIMITED. (v) A PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY. (c) CONTROVERSIES SHALL BE DETERMINED BY ARBITRATION BEFORE, AND ONLY BEFORE, AN ARBITRATION PANEL CONVENED BY THE NEW YORK STOCK EXCHANGE, INC. OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. THE PARTIES MAY ALSO SELECT ANY OTHER NATIONAL SECURITIES EXCHANGE'S ARBITRATION FORUM UPON WHICH THE SPONSOR OR THE SELLING AGENT IS LEGALLY REQUIRED TO ARBITRATE THE CONTROVERSY. SUCH ARBITRATION SHALL BE GOVERNED BY THE RULES OF THE ORGANIZATION CONVENING THE PANEL. JUDGMENT ON ANY AWARD OF ANY SUCH ARBITRATION MAY BE ENTERED IN THE SUPREME COURT OF THE STATE OF NEW YORK ~~SHALL GOVERN AND (IV) OHIO, THE LAWS~~ OR IN ANY OTHER COURT HAVING JURISDICTION OF THE ~~STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE~~ PARTY OR ~~PRINCIPLE~~ PARTIES AGAINST WHOM SUCH AWARD IS RENDERED. EACH PARTY AGREES THAT ~~MIGHT REFER TO~~ THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION DETERMINATION OF THE ~~INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14~~ ARBITRATORS SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leasesCONCLUSIVE UPON THEM. (d) ~~The arbitration proceedings shall be conducted in the English language~~NO PARTY SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, ~~and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation~~NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PARTY WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNLESS AND UNTIL: (A) THE CLASS CERTIFICATION IS DENIED; OR (B) THE CLASS IS DECERTIFIED; OR (C) THE PARTY IS EXCLUDED FROM THE CLASS BY COURT. ~~The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas~~THE FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this AgreementEACH MEMBER HEREBY AGREES THAT SERVICE OF PROCESS MAY BE EFFECTED ON EACH MEMBER IN THE SAME MANNER AS NOTICES ARE GIVEN PURSUANT TO SECTION 8.2. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Limited Liability Company Agreement (UBS Managed Futures LLC (Aspect Series))

Governing Law; Dispute Resolution. ~~(a)~~ THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN~~ CONTAINS A PREDISPUTE ARBITRATION CLAUSE. BY SIGNING AN ARBITRATION AGREEMENT THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AGREE AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award.FOLLOWS: (i) ~~By agreeing to arbitration~~ALL PARTIES TO THIS AGREEMENT ARE GIVING UP THE RIGHT TO SXX EACH OTHER IN COURT, ~~the Parties do not intend to deprive any court sitting in Houston~~INCLUDING THE RIGHT TO A TRIAL BY JURY, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effectEXCEPT AS PROVIDED BY THE RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS FILED. (jii) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation AgreementARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7A PARTY'S ABILITY TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED. (kiii) ~~The arbitration conducted pursuant hereto shall be confidential~~THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT PROCEEDINGS. (iv) THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD. (v) THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY. (vi) THE RULES OF SOME ARBITRATION FORUMS MAY IMPOSE TIME LIMITS FOR BRINGING A CLAIM IN ARBITRATION. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existenceIN SOME CASES, ~~contents or results of the proceeding~~A CLAIM THAT IS INELIGIBLE FOR ARBITRATION MAY BE BROUGHT IN COURT. (vii) THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentenceAND ANY AMENDMENTS THERETO, ~~the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests~~SHALL BE INCORPORATED INTO THIS AGREEMENT.

Appears in 1 contract

Samples: Limited Liability Company Agreement (AlphaMetrix Managed Futures III LLC (AlphaMetrix WC Diversified Series))

Governing Law; Dispute Resolution. Equitable Relief. (aA) THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY AND CONSTRUED ~~AND INTERPRETED~~ IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW). (B) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ITS OBLIGATIONS OR LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL ~~GOVERN~~ BE BROUGHT BY SUCH PARTY ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY, AND EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE JURISDICTION OF EACH OF THE AFORESAID COURTS IN PERSONAM, WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL IN ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EACH OF FT AND DT HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM (~~IV) OHIO~~IN SUCH CAPACITY, THE "PROCESS AGENT"), WITH XX XXXXXX XX 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF TO THE PROCESS AGENT, PROVIDED THAT IN THE CASE OF ANY SUCH SERVICE UPON THE PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE SHALL ALSO DELIVER A COPY THEREOF TO FT AND DT IN THE MANNER PROVIDED IN SECTION 3.3. FT AND DT SHALL TAKE ALL SUCH ACTION AS MAY BE NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT OR TO APPOINT ANOTHER AGENT SO THAT FT AND DT WILL AT ALL TIMES HAVE AN AGENT FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES IN NEW YORK, NEW YORK. IN THE EVENT OF THE TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE PROCESS AGENT TO ANY OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE OF ASSETS OR OTHERWISE, SUCH OTHER CORPORATION SHALL BE SUBSTITUTED HEREUNDER FOR THE PROCESS AGENT WITH THE SAME EFFECT AS IF NAMED HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH OF FT AND DT FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED AIRMAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGMENT OF RECEIPT OF SUCH REGISTERED MAIL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH OF FT AND DT EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING WAIVER IS INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF ~~OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS~~ NEW YORK AND OF ~~LAW RULE OR PRINCIPLE THAT MIGHT REFER TO~~ THE ~~LAWS~~ UNITED STATES OF ~~ANOTHER JURISDICTION~~AMERICA. (bC) EACH PARTY HERETO AGREES THAT MONEY DAMAGES WOULD NOT BE A SUFFICIENT REMEDY FOR THE OTHER PARTIES HERETO FOR ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY BREACH OF THIS AGREEMENT ~~OR ANY ANCILLARY AGREEMENT~~BY IT, ~~WHETHER SOUNDING~~ AND THAT IN ~~CONTRACT~~ADDITION TO ALL OTHER REMEDIES THE OTHER PARTIES HERETO MAY HAVE, ~~TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”)~~ THEY SHALL BE ~~FINALLY~~ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH. EACH PARTY HERETO AGREES NOT TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES SUCH A BREACH HAS OCCURRED, ~~EXCLUSIVELY~~ AND ~~CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER~~ TO WAIVE ANY REQUIREMENT FOR THE ~~RULES~~ SECURING OR POSTING OF ~~ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN~~ ANY BOND IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATESCONNECTION WITH SUCH REMEDY. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Registration Rights Agreement (Deutsche Telekom Ag)

Governing Law; Dispute Resolution. This Agreement will be interpreted under the substantive laws of the State of New York. The 1980 United Nations Convention on Contracts for the International Sale of Goods (a“CISG”) ~~THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED~~ and any reference thereto are explicitly excluded. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, JURY FOR DISPUTES ARISING OUT OF OR ~~RELATING~~ RELATED TO THIS AGREEMENT, ~~ANY ANCILLARY AGREEMENT OR~~ INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE ~~TRANSACTIONS THEY CONTEMPLATE~~PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, OR AND OTHER CHALLENGES TO THE ~~VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE ~~AGREEMENT TO ARBITRATE AS SET OUT~~ WAIVER IN ~~THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO~~ THE ~~BENEFIT~~ PRECEDING SENTENCE APPLIES REGARDLESS OF THE ~~PARTIES~~ TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THESE TERMS, AND ~~THEIR AFFILIATES~~EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY ZEISS’S NEGLIGENCE, FRAUDULENT REPRESENTATION OR WHERE BUYER ACTS AS A CONSUMER, ZEISS SHALL NOT BE LIABLE FOR ANY CLAIM BY BUYER FOR ANY LOSS OR DAMAGE WHATSOEVER AND HOWSOEVER ARISING, UNLESS SUCH CLAIM HAS BEEN ISSUED IN A COURT OF COMPETENT JURISDICTION WITHIN 12 MONTHS FROM THE DATE ON WHICH THE BUYER HAS FIRST BECOME AWARE OR OUGHT TO HAVE REASONABLY BECOME AWARE (WHICHEVER OCCURS EARLIER) OF THE CIRCUMSTANCES GIVING RISE TO SUCH CLAIM, FAILING WHICH ANY SUCH CLAIM SHALL BECOME TIME-BARRED IN ITS ENTIRETY. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Terms and Conditions of Sale

Governing Law; Dispute Resolution. (a) THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall This Agreement will be ~~comprised of three arbitrators. The claimant shall nominate one arbitrator~~ governed by and ~~the respondent shall nominate one arbitrator~~ construed in accordance with the ~~ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days~~ internal laws of the ~~confirmation by the ICC Court~~ State of ~~Arbitration~~ New York without giving effect to any choice or conflict of law provision or rule (~~the “ICC Court”)~~ whether of the ~~appointment~~ State of ~~the second arbitrator. If the chair~~ New York or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (djurisdiction) ~~The arbitration proceedings shall be conducted~~ that would result in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more application of the ~~Parties may be joined in a single arbitration by~~ laws of any other jurisdiction; except that any dispute regarding the ~~claimant~~enforceability, ~~and any arbitration under this Agreement that involves a dispute relating to rights~~ scope, validity, or ~~obligations that are also at issue in another arbitration proceeding under another agreement involving one or both~~ interpretation of the ~~Parties shall, at the request of either Party, be consolidated with that other~~ arbitration ~~proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated~~ clause in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law Section 8.08 shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (ib) ~~By agreeing to arbitration~~EXCEPT AS OTHERWISE SPECIFIED HEREIN, ~~the Parties do not intend to deprive any court sitting in Houston~~ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE ANCILLARY DOCUMENTS OR THE BREACH THEREOF, ~~Texas of its jurisdiction to issue a pre~~SHALL BE RESOLVED AND DETERMINED BY BINDING ARBITRATION ADMINISTERED BY JAMS OR ITS SUCCESSOR IN ACCORDANCE WITH THE JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. THE PARTIES AGREE THAT THE SITE OF THE ARBITRATION WILL BE A MUTUALLY AGREEABLE LOCATION IN THE BOROUGH OF MANHATTAN. THE ARBITRATION WILL BE HELD BEFORE A SINGLE ARBITRATOR (WHICH ARBITRATOR MUST BE AN ATTORNEY ADMITTED TO PRACTICE IN THE STATE OF NEW YORK OR THE STATE OF DELAWARE WITH AN ACTIVE LICENSE THAT IS IN GOOD STANDING). ALL QUESTIONS OF ARBITRABILITY ARE DELEGATED TO THE ARBITRATOR AND SHALL BE DECIDED BY THE ARBITRATOR, AND NOT A COURT. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO PERMIT DISCOVERY, TO THE EXTENT DEEMED APPROPRIATE BY THE ARBITRATOR, UPON REQUEST OF A PARTY. THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO ADD TO OR DETRACT FROM THE AGREEMENTS OF THE PARTIES. PRIOR TO THE ENTRY OF A FINAL AWARD, THE PARTIES WILL EQUALLY SHARE IN THE COSTS, INCLUDING ARBITRATOR FEES, OF THE ARBITRATION. HOWEVER, AS PART OF THE FINAL AWARD, THE ARBITRATOR SHALL ORDER THAT THE NON-~~arbitral injunction~~PREVAILING PARTY (AND, ~~pre~~IN THE CASE OF ANY SELLER OR ANY EQUITY HOLDER AS THE NON-~~arbitral attachment~~PREVAILING PARTY, ~~or other order in aid of arbitration proceedings and the enforcement of any award~~BY THE EQUITY HOLDERS) REIMBURSE THE PREVAILING PARTY FOR THE PREVAILING PARTY’S PORTION OF THE COSTS OF THE ARBITRATION, INCLUDING THE ARBITRATOR’S FEES AND THE PREVAILING PARTY’S REASONABLE LEGAL FEES AND COSTS. ~~The Parties and their Affiliates agree that no court other than a court sitting either in Houston~~THE ARBITRATOR SHALL HAVE THE AUTHORITY TO GRANT ANY TEMPORARY, ~~Texas will have authority or jurisdiction to enter interim orders~~PRELIMINARY OR PERMANENT INJUNCTIVE RELIEF IN A FORM SUBSTANTIALLY SIMILAR TO THAT WHICH WOULD OTHERWISE BE GRANTED BY A COURT OF COMPETENT JURISDICTION. THE RESULTING ARBITRATION AWARD MAY BE ENFORCED, ~~including but not limited to temporary restraining orders or temporary injunctive relief~~OR INJUNCTIVE RELIEF MAY BE SOUGHT, ~~and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas~~IN ANY COURT OF COMPETENT JURISDICTION. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties THE PARTIES EXPRESSLY AGREE THAT THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK ARE COURTS OF COMPETENT JURISDICTION FOR THIS PURPOSE. Notwithstanding anything to the ~~arbitration to request that~~ contrary herein, any ~~court modify~~ legal suit, Action arising out of or ~~vacate any temporary~~ based upon Section 5.02 or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination 5.03 of this Agreement and ~~(b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled~~ seeking specific performance in the ~~event that this Agreement terminates as~~ form of a ~~result of any material breach by Buyer. The Parties agree that service of process~~ temporary restraining order or preliminary injunction may be instituted in any state or federal court ~~proceeding~~ of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, competent jurisdiction and the party seeking such specific performance will not be obligated to ~~the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests~~first seek arbitration as contemplated above.

Appears in 1 contract

Samples: Asset Purchase Agreement (Hudson Technologies Inc /Ny)

Governing Law; Dispute Resolution. (a) THIS AGREEMENT IS MADE PURSUANT TO AND ~~THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF ~~WEST VIRGINIA SHALL GOVERN~~DELAWARE, ~~(III) NEW YORK~~NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT OR ANY SUBSCRIPTION AGREEMENT IS EXECUTED BY ANY MEMBER OR PROSPECTIVE MEMBER OR THE LOCATION OF ANY OFFICE, ~~THE LAWS~~ VENTURE OR OPERATION OF THE ~~STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING~~ PLATFORM OR ANY ~~CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION~~MEMBER. (b) THE MEMBERS, THE SPONSOR AND THE PLATFORM (THE “PARTIES”) HEREBY AGREE THAT THE PARTIES SHALL SUBMIT ALL CONTROVERSIES ARISING AMONG THEM IN CONNECTION WITH THE PLATFORM OR ITS BUSINESSES OR CONCERNING ANY ~~DISPUTE~~TRANSACTION, ~~CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT~~ DISPUTE OR THE ~~TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION,~~ CONSTRUCTION, ~~PERFORMANCE, BREACH, TERMINATION~~ PERFORMANCE OR ~~ENFORCEABILITY~~ BREACH OF THIS ~~AGREEMENT~~ OR ANY ~~ANCILLARY~~ OTHER AGREEMENT, WHETHER ~~SOUNDING~~ ENTERED INTO PRIOR TO, ON OR SUBSEQUENT TO THE DATE HEREOF TO ARBITRATION IN ~~CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY~~ ACCORDANCE WITH THE PROVISIONS SET FORTH BELOW AND UNDERSTAND THAT: (~~A “DISPUTE”~~I) ~~SHALL BE FINALLY, EXCLUSIVELY~~ ARBITRATION IS FINAL AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON ~~AND SHALL INURE TO~~ THE ~~BENEFIT OF THE PARTIES AND THEIR AFFILIATES~~PARTIES. (cII) ~~The arbitral tribunal shall be comprised of three arbitrators~~THE PARTIES ARE WAIVING THEIR RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (~~the “ICC Court”~~III) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leasesPRE-ARBITRATION DISCOVERY GENERALLY IS MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Limited Liability Company Agreement (UBS Managed Futures LLC (Aspect Series))

Governing Law; Dispute Resolution. This Agreement will be interpreted under the laws of the State of New York without regard to its conflicts of law rules. The 1980 United Nations Convention on Contracts for the International Sale of Goods (a“CISG”) ~~THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED~~ and any reference thereto are explicitly excluded. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, JURY FOR DISPUTES ARISING OUT OF OR ~~RELATING~~ RELATED TO THIS AGREEMENT, ~~ANY ANCILLARY AGREEMENT OR~~ INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE ~~TRANSACTIONS THEY CONTEMPLATE~~PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, OR AND OTHER CHALLENGES TO THE ~~VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE ~~AGREEMENT TO ARBITRATE AS SET OUT~~ WAIVER IN ~~THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO~~ THE ~~BENEFIT~~ PRECEDING SENTENCE APPLIES REGARDLESS OF THE ~~PARTIES~~ TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THESE TERMS, AND ~~THEIR AFFILIATES~~EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY ZEISS’S NEGLIGENCE, FRAUDULENT REPRESENTATION OR WHERE BUYER ACTS AS A CONSUMER, ZEISS SHALL NOT BE LIABLE FOR ANY CLAIM BY BUYER FOR ANY LOSS OR DAMAGE WHATSOEVER AND HOWSOEVER ARISING, UNLESS SUCH CLAIM HAS BEEN ISSUED IN A COURT OF COMPETENT JURISDICTION WITHIN 12 MONTHS FROM THE DATE ON WHICH THE BUYER HAS FIRST BECOME AWARE OR OUGHT TO HAVE REASONABLY BECOME AWARE (WHICHEVER OCCURS EARLIER) OF THE CIRCUMSTANCES GIVING RISE TO SUCH CLAIM, FAILING WHICH ANY SUCH CLAIM SHALL BECOME TIME-BARRED IN ITS ENTIRETY. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Terms and Conditions of Sale

Governing Law; Dispute Resolution. (a) ~~THIS AGREEMENT AND~~ The provisions of this Agreement and the documents delivered pursuant hereto and all claims or causes of action (whether in contract or in tort, or whether at law or in equity) that may be based upon, arise out of or relate to this Agreement, including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or alleged to be made in connection with this Agreement or allegedly made as an inducement to enter into this Agreement, shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof. EACH PARTY HERETO HEREBY SUBMITS TO THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS EXCLUSIVE JURISDICTION OF THE ~~COMMONWEALTH~~ COURT OF ~~PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS~~ CHANCERY OF THE STATE OF ~~WEST VIRGINIA SHALL GOVERN~~DELAWARE OR, ~~(III) NEW YORK~~IF JURISDICTION IS NOT AVAILABLE IN SUCH COURT, THEN THE ~~LAWS~~ FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF ~~NEW YORK SHALL GOVERN AND (IV) OHIO~~DELAWARE, ~~THE LAWS~~ FOR PURPOSES OF ~~THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY,~~ ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS ~~AGREEMENT, ANY ANCILLARY~~ AGREEMENT OR THE TRANSACTIONS ~~THEY CONTEMPLATE~~CONTEMPLATED HEREBY (WHETHER IN TORT, CONTRACT OR OTHERWISE). EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ~~VALIDITY~~TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, ~~INTERPRETATION~~COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, ~~CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR ~~ENFORCEABILITY~~ CERTIFIED MAIL AT THE ADDRESS SET FORTH IN SECTION 9.5 OF THIS AGREEMENT AND THAT SERVICE SO MADE WILL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT THEREOF OR ~~ANY ANCILLARY AGREEMENT~~FIVE BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATESPROPER POSTAGE PREPARED. (cb) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating Each party to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement agrees that ~~involves~~ it will not bring or support any action, cause of action, claim, cross-claim or third party claim or legal proceeding of any kind (whether pursuant to a ~~dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall~~legal requirement, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, ~~including but not limited~~ in Contract, in tort or otherwise) against any of the Financing Sources in any way relating to ~~specific performance of any obligation under~~ this Agreement or any ~~ancillary agreement. The arbitral tribunal shall award costs~~of the transactions contemplated by this Agreement in any forum other than the Supreme Court of the State of New York, ~~attorneys’ fees~~County of New York, ~~and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (~~or, if ~~such rate~~ under applicable legal requirements exclusive jurisdiction is ~~contrary to any applicable usury Law~~vested in the Federal courts, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages United States District Court for the ~~failure~~ Southern District of ~~any party to respect the arbitral tribunal’s orders to that effect~~New York (and appellate courts thereof). (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Merger Agreement (Energizer Holdings, Inc.)

Governing Law; Dispute Resolution. ~~(a)~~ THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY BY, AND CONSTRUED ~~AND INTERPRETED~~ IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORKWITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HEREBY EXPRESSLY WAlVES AND RENOUNCES THE JURISDICTION OF ANY MEXICAN COURT AND AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN EQUITY, EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ~~SHALL GOVERN AND (IV) OHIO~~OR, IF SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE ~~LAWS~~ SUPREME COURT OF THE STATE OF ~~OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS~~ NEW YORK FOR THE COUNTY OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE NEW YORK (THE “~~ICC”) THEN IN EFFECT (THE “ICC RULES~~CHOSEN COURTS”). EACH PARTY (I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN COURTS, ~~EXCEPT~~ (II) WAIVES ANY OBJECTION, TO THE FULLEST EXTENT PERMITTED BYLAW, TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURTS, (III) WAIVES ANY OBJECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THAT THE CHOSEN COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY PARTY HERETO, (IV) AGREES THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTIONS 7.3 (NOTICES) AND 7.7 (SERVICE OF PROCESS) OF THE SHAREHOLDERS AGREEMENT (IN THE CASE OF THE SA PARTIES), SECTION 12.3 (NOTICES) OF THE PURCHASE AGREEMENT (IN THE CASE OF THE PA PARTIES) OR IN SUCH OTHER MANNER AS ~~MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14~~ MAY BE PERMITTED BYLAW SHALL BE ~~BINDING~~ VALID AND SUFFICIENT SERVICE THEREOF AND (V) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON ~~AND SHALL INURE TO~~ THE ~~BENEFIT OF THE PARTIES AND THEIR AFFILIATES~~JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Option Agreement (Brightpoint Inc)

Governing Law; Dispute Resolution. EQUITABLE RELIEF. (a) THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY AND CONSTRUED ~~AND INTERPRETED~~ IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW). (b) EXCEPT AS PROVIDED IN ARTICLE IX HEREOF, EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING BY IT AGAINST ANY OF THE OTHER PARTIES WITH RESPECT TO ITS RIGHTS, OBLIGATIONS OR LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL ~~GOVERN~~ BE BROUGHT BY SUCH PARTY ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY, AND EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE JURISDICTION OF EACH OF THE AFORESAID COURTS IN PERSONAM, WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING (~~IV) OHIO~~INCLUDING, WITHOUT LIMITATION, CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, ACTIONS WITH MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY IS IMPLED). EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL IN ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EACH OF FT AND DT HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM (IN SUCH CAPACITY, THE "PROCESS AGENT"), WITH XX XXXXXX XX 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF TO THE PROCESS AGENT, PROVIDED THAT IN THE CASE OF ANY SUCH SERVICE UPON THE PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE SHALL ALSO DELIVER A COPY THEREOF TO FT AND DT IN THE MANNER PROVIDED IN SECTION 11.1. FT AND DT SHALL TAKE ALL SUCH ACTION AS MAY BE NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT OR TO APPOINT ANOTHER AGENT SO THAT FT AND DT WILL AT ALL TIMES HAVE AN AGENT FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES IN NEW YORK, NEW YORK. IN THE EVENT OF THE TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE PROCESS AGENT TO ANY OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE OF ASSETS OR OTHERWISE, SUCH OTHER CORPORATION SHALL BE SUBSTITUTED HEREUNDER FOR THE PROCESS AGENT WITH THE SAME EFFECT AS IF NAMED HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH OF FT AND DT FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED AIRMAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGMENT OF RECEIPT OF SUCH REGISTERED MAIL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH OF FT AND DT EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING WAIVER IS INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY NEW YORK AND ~~CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION~~ OF THE ~~INTERNATIONAL CHAMBER~~ UNITED STATES OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATESAMERICA. (c) ~~The arbitral tribunal shall be comprised of three arbitrators~~EACH PARTY HERETO AGREES THAT MONEY DAMAGES WOULD NOT BE A SUFFICIENT REMEDY FOR THE OTHER PARTIES HERETO FOR ANY BREACH OF THIS AGREEMENT BY IT, AND THAT IN ADDITION TO ALL OTHER REMEDIES THE OTHER PARTIES HERETO MAY HAVE, THEY SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH. ~~The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules~~EACH PARTY HERETO AGREES NOT TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES THAT SUCH A BREACH HAS OCCURRED, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leasesAND TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND IN CONNECTION WITH SUCH REMEDY. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Stockholders' Agreement (Deutsche Telekom Ag)

Governing Law; Dispute Resolution. This Agreement shall be construed and interpreted according to the laws of the State of Delaware without reference to the rules of conflict of laws thereof. (a) EACH OF THE PARTIES HERETO (INCLUDING, WITHOUT LIMITATION, HWCC), HEREBY IRREVOCABLY: (i) WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS, (ii) AGREES TO SUBMIT ANY SUCH DISPUTE OR CLAIMS ARISING ON OR PRIOR TO THE CLOSING DATE SOLELY AND EXCLUSIVELY TO THE ~~LEGAL RELATIONS BETWEEN~~ BANKRUPTCY COURT FOR RESOLUTION, (iii) CONSENTS TO THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS JURISDICTION OF THE ~~COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN~~BANKRUPTCY COURT IN ANY SUCH DISPUTES OR CLAIMS ARISING ON OR PRIOR TO THE CLOSING DATE, (IIiv) ~~WEST VIRGINIA,~~ CONSENTS TO THE ~~LAWS~~ LAYING OF VENUE AND HEARING AND DETERMINATION OF ANY DISPUTES OR CLAIMS ON OR PRIOR TO THE CLOSING DATE IN THE STATE OF ~~WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS~~ DELAWARE IN FRONT OF THE ~~STATE OF NEW YORK SHALL GOVERN~~ BANKRUPTCY COURT AND (IVv) ~~OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING~~ WAIVES ANY ~~CONFLICTS OF LAW RULE~~ ARGUMENT OR ~~PRINCIPLE THAT MIGHT REFER~~ DEFENSE TO THE ~~LAWS~~ REQUIREMENTS OF ~~ANOTHER JURISDICTION~~THIS SECTION 15.5(a) THAT SUCH FORUM IS INCONVENIENT OR AN OTHERWISE IMPROPER OR INAPPROPRIATE FORUM AND VENUE FOR RESOLVING SUCH DISPUTES OR CLAIMS. (b) ~~ANY DISPUTE~~Notwithstanding the foregoing, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY other than disputes or claims arising out of the Post Closing Adjustment and Post Closing Tax Payment (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”which claims shall be resolved pursuant to Section 1.4 and Section 6.3 herein respectively), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal any disputes or claims arising out of or concerning this Agreement after the Closing Date, including, but not limited to, any disputes or claims arising out of the Primary Escrow Agreement, the Secondary Escrow Agreement, and/or the indemnification procedures hereunder, whether arising under theories of liability or damages based upon contract, tort or statute, shall be ~~comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one~~ determined exclusively by arbitration before a single arbitrator in accordance with the ~~ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days~~ then effective arbitration rules of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidatedAAA; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shownhowever, that the ~~commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed~~parties hereto may also bring an action in court for injunctive relief. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award arbitrator's decision shall be final and binding on the parties hereto (other than with respect to matters subject to the foregoing proviso) and judgment upon the ~~Parties subject only to grounds and procedures for vacating or modifying~~ award rendered by the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award arbitrator may be entered in any court ~~having jurisdiction thereof~~of competent jurisdiction. In recognition of the fact that resolution of any disputes or claims in the courts is rarely timely or cost effective for either party, ~~over~~ the parties hereto enter this mutual agreement to arbitrate in order to gain the benefits of a ~~Party or any~~ speedy, impartial and cost-effective dispute resolution procedure (other than with respect to matters subject to the proviso in the first sentence of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an awardthis subparagraph (b)). (ic) ~~By agreeing~~ Any arbitration shall be held in Phoenix, Arizona. The arbitrator shall be neutral and impartial and shall be an attorney or retired judge with substantial experience in contract disputes, selected by Buyer, on the one hand, and Greate Bay and/or HWCC, on the other hand, alternately striking names from a list of five such persons provided by the AAA office in Phoenix, Arizona, following a request by the party seeking arbitration for a list of five such attorneys or retired judges with substantial professional experience in contract disputes. If either party fails to ~~arbitration~~so strike names from the list, the ~~Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or~~ arbitrator shall be selected from the list by the other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effectparty. (jd) ~~All notices~~ Each party shall have the right to take the deposition of one individual and any expert witness designated by ~~one~~ the other party. Each party shall also have the right to propound requests for production of documents to any party and the right to subpoena documents and witnesses for the arbitration. Additional discovery may be made only where the arbitrator selected so orders upon a ~~Dispute~~ showing of substantial need. The arbitrator shall have the authority to ~~another~~ entertain a motion to dismiss and/or a motion for summary judgment by any party. (e) Each party may make written submissions and oral presentations to the arbitrator. Any oral presentation may include argument from counsel and testimony from live witnesses. The parties hereto agree that they will attempt, and they intend that they and the arbitrator should use their best efforts in ~~connection with~~ that attempt, to conclude the arbitration proceeding and have a final decision from the arbitrator within 60 days from the date of selection of the arbitrator; provided, however, that the arbitrator shall be entitled to extend such 60-day period for a total of two 30 day periods. The arbitrator shall immediately deliver a written award with respect to the dispute to each of the parties, who shall promptly act in accordance ~~with~~ therewith. (f) Buyer and HWCC shall split the ~~provisions~~ fees and expenses of ~~Section 14.7. Additionally~~the arbitrator, ~~Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as~~ and each party shall pay its ~~agent for service of process~~ respective fees and expenses in connection with any ~~Dispute~~ matters subject to the provision in Section 15.5(b) above. Each party shall pay its own attorney fees and costs including, without limitation, fees and costs of any experts; provided, however, that attorney fees and costs incurred by the party that prevails in any such arbitration commenced pursuant to this Section 15.5 or ~~in connection with~~ any ~~application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain~~ judicial action or proceeding seeking to enforce the ~~appointment and designation described~~ agreement to arbitrate disputes as set forth in this Section ~~14.14(j~~15.5 or seeking to enforce any order or award of any arbitration commenced pursuant to this Section 15.5 may be assessed against the party or parties that do not prevail in such arbitration in such manner as the arbitrator or the court in such judicial action, as the case may be, may determine to be appropriate under the circumstances; provided, further, that if any party prevails on a statutory claim that entitles the prevailing party to a reasonable attorney fees (with or without expert fees) ~~for service~~ as part of ~~process~~ the costs, the arbitrator may award reasonable attorney fees (with or without expert fees) to the prevailing party in ~~Texas until~~ accord with such statute. Any controversy over whether a dispute is an arbitrable dispute or as to the ~~earlier of (a) one year following the expiration~~ interpretation or ~~termination~~ enforceability of this ~~Agreement and (b) the expiration or termination of the Participation Agreement; provided that~~ paragraph with respect to such ~~one year period~~ arbitration shall be ~~tolled in~~ determined by the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7arbitrator. (kg) ~~The arbitration conducted pursuant hereto shall be confidential. No party to~~ In a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentencecontractual claim under this Agreement, the ~~party~~ arbitrator shall have no authority to ~~the Dispute intending to make the disclosure shall notify the other parties to the Dispute~~ add, delete or modify any term of ~~the intended disclosure and afford them a reasonable opportunity to protect their interests~~this Agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Alliance Gaming Corp)

Governing Law; Dispute Resolution. (a) THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTIONThis Guarantee shall be governed by and construed in accordance with the laws of the State of Delaware regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. (b) ANY ~~DISPUTE~~LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS GUARANTEE MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF DELAWARE AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. (c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY ~~OR CLAIM~~WHICH MAY ARISE UNDER THIS GUARANTEE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, ~~DIRECTLY OR INDIRECTLY~~THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS ~~AGREEMENT~~GUARANTEE. EACH PARTY TO THIS GUARANTEE CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, ~~ANY ANCILLARY AGREEMENT~~ EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE ~~TRANSACTIONS THEY CONTEMPLATE~~FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, OR (B) SUCH PARTY HAS CONSIDERED THE ~~VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY~~ IMPLICATIONS OF THIS ~~AGREEMENT OR ANY ANCILLARY AGREEMENT~~WAIVER, ~~WHETHER SOUNDING IN CONTRACT~~(C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, ~~TORT~~AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS GUARANTEE BY, ~~STATUTE~~AMONG OTHER THINGS, ~~COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY~~ THE MUTUAL WAIVERS AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT CERTIFICATIONS IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases12(c). (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: Each party hereto hereby (i) ~~the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party~~ consents to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any ~~court proceeding~~ action between the parties arising in whole or in part under or in connection with this Guarantee or the transactions contemplated hereby in any manner permitted under the laws of the ~~type described~~ State of Delaware, (ii) agrees that service of process made in accordance with clause (i) or by registered, certified mail, overnight carrier or courier, return receipt requested, at its address specified in Section ~~14.14(h~~13 will constitute good and valid service of process in any such action and (iii) waives and agrees not to assert (by way of motion, as a defense or otherwise) in any such action any claim that service of process made in accordance with clause (i) or ~~Section 14.14(i~~(ii) ~~shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving~~ does not constitute good and valid service of ~~notices in Section 14.7~~process. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Stock Purchase Agreement (Enstar Group LTD)

Governing Law; Dispute Resolution. ~~(a)~~ THIS AGREEMENT AND ALL OF THE ~~LEGAL RELATIONS BETWEEN~~ RIGHTS AND DUTIES OF THE PARTIES HEREUNDER ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED ~~BY AND~~ BY, CONSTRUED AND ~~INTERPRETED~~ ENFORCED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIAWITH, THE LAWS OF THE STATE OF ~~WEST VIRGINIA SHALL GOVERN~~TEXAS, ~~(III) NEW YORK,~~ WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. EXCEPT WITH RESPECT TO DISPUTES EXCLUSIVELY RELATED TO THE ~~STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO~~EXISTING STP UNITS, THE ~~LAWS~~ PARTIES IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE STATE DISTRICT COURTS OF ~~OHIO SHALL GOVERN)~~XXXXXX COUNTY, ~~EXCLUDING~~ TEXAS WITH RESPECT TO ANY ~~CONFLICTS OF LAW RULE~~ MATTER ARISING FROM OR ~~PRINCIPLE THAT MIGHT REFER~~ RELATING IN ANY WAY TO THE ~~LAWS~~ SUBJECT MATTER OF ~~ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO~~ THIS AGREEMENT, ~~ANY ANCILLARY AGREEMENT~~ OR THE TRANSACTIONS ~~THEY CONTEMPLATE~~CONTEMPLATED HEREBY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, TO VENUE IN THE STATE DISTRICT COURTS OF XXXXXX COUNTY, TEXAS, OR ~~THE VALIDITY~~BASED ON FORUM NON CONVENIENS, ~~INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION~~ WHICH A PARTY MAY NOW OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE HEREAFTER HAVE TO THE ~~BENEFIT~~ BRINGING OF ~~THE PARTIES AND THEIR AFFILIATES~~ANY ACTION OR PROCEEDING IN SUCH JURISDICTION. SERVICE OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURTS. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Project Agreement, Settlement Agreement and Mutual Release (NRG Energy, Inc.)

Governing Law; Dispute Resolution. Equitable --------------------------------------------- Relief. ------ (a) THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY AND CONSTRUED ~~AND INTERPRETED~~ IN ACCORDANCE WITH THE LAWS OF ~~TEXAS~~ THE STATE OF INDIANA (~~EXCEPT THAT~~REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW). (b) EACH PARTY IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ITS OBLIGATIONS OR LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF INDIANA SITTING IN THE CITY OF NEW ALBANY OR, IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, IN THE COURTS OF THE STATE OF INDIANA SITTING IN THE CITY OF JEFFERSONVILLE, AND EACH PARTY HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE JURISDICTION OF EACH OF THE AFORESAID COURTS IN PERSONAM, WITH RESPECT TO ~~ISSUES RELATING~~ ANY SUCH ACTION, SUIT OR PROCEEDING (INCLUDING CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, ACTIONS WITH MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY IS IMPLED). EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO ~~TITLE TO REAL PROPERTY LOCATED~~ A JURY TRIAL IN ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. (Ic) ~~PENNSYLVANIA~~EACH PARTY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM (IN SUCH CAPACITY, THE ~~LAWS~~ "PROCESS AGENT"), AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF TO THE PROCESS AGENT, PROVIDED THAT IN THE CASE OF ANY SUCH SERVICE UPON THE PROCESS -------- AGENT, THE PARTY EFFECTING SUCH SERVICE SHALL ALSO DELIVER A COPY THEREOF TO THE OTHER PARTY IN THE MANNER PROVIDED IN SECTION 10.2. EACH PARTY SHALL TAKE ALL SUCH ACTION AS MAY BE NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT OR TO APPOINT ANOTHER AGENT SO THAT SUCH PARTY WILL AT ALL TIMES HAVE AN AGENT FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES IN THE STATE OF INDIANA. IN THE EVENT OF THE ~~COMMONWEALTH~~ TRANSFER OF ~~PENNSYLVANIA~~ ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE PROCESS AGENT TO ANY OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE OF ASSETS OR OTHERWISE, SUCH OTHER CORPORATION SHALL ~~GOVERN~~BE SUBSTITUTED HEREUNDER FOR THE PROCESS AGENT WITH THE SAME EFFECT AS IF NAMED HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION, ~~(II) WEST VIRGINIA~~SUIT OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED AIR MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGMENT OF RECEIPT OF SUCH REGISTERED MAIL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING WAIVER IS INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF ~~WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS~~ INDIANA AND OF THE ~~STATE~~ UNITED STATES OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”), EXCEPT AS MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14 SHALL BE BINDING ON AND SHALL INURE TO THE BENEFIT OF THE PARTIES AND THEIR AFFILIATES. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leasesAMERICA. (d) ~~The arbitration proceedings shall be conducted in the English language~~EACH PARTY AGREES THAT MONEY DAMAGES WOULD NOT BE A SUFFICIENT REMEDY FOR THE OTHER PARTY FOR ANY BREACH OF THIS AGREEMENT BY IT, ~~and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation~~AND THAT IN ADDITION TO ALL OTHER REMEDIES THE OTHER PARTY MAY HAVE, SUCH OTHER PARTY SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH. ~~The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston~~EACH PARTY AGREES NOT TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES THAT A BREACH HAS OCCURRED, ~~Texas~~AND AGREES TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND IN CONNECTION WITH SUCH REMEDY. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Merger Agreement (Alrenco Inc)

Governing Law; Dispute Resolution. ~~(a)~~ THIS AGREEMENT ~~AND THE LEGAL RELATIONS BETWEEN THE PARTIES~~ SHALL BE GOVERNED BY BY, AND CONSTRUED ~~AND INTERPRETED~~ IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORKWITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES AND RENOUNCES THE JURISDICTION OF ANY MEXICAN COURT AND AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN EQUITY, EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ~~SHALL GOVERN AND (IV) OHIO~~OR, IF SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE ~~LAWS~~ SUPREME COURT OF THE STATE OF ~~OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS~~ NEW YORK FOR THE COUNTY OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTION. (b) ANY DISPUTE, CONTROVERSY OR CLAIM, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS THEY CONTEMPLATE, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) SHALL BE FINALLY, EXCLUSIVELY AND CONCLUSIVELY RESOLVED BY BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE NEW YORK (THE “~~ICC”) THEN IN EFFECT (THE “ICC RULES~~CHOSEN COURTS”). EACH PARTY (I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN COURTS, ~~EXCEPT~~ (II) WAIVES ANY OBJECTION, TO THE FULLEST EXTENT PERMITTED BYLAW, TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURTS, (III) WAIVES ANY OBJECTION, TO THE FULLEST EXTENT PERMITTED BYLAW, THAT THE CHOSEN COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY PARTY HERETO, (IV) AGREES THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTIONS 7.3 (NOTICES) AND 7.7 (SERVICE OF PROCESS) OF THE SHAREHOLDERS AGREEMENT (IN THE CASE OF THE SA PARTIES), SECTION 12.3 (NOTICES) OF THE PURCHASE AGREEMENT (IN THE CASE OF THE PA PARTIES) OR IN SUCH OTHER MANNER AS ~~MODIFIED IN THIS AGREEMENT. THE AGREEMENT TO ARBITRATE AS SET OUT IN THIS SECTION 14.14~~ MAY BE PERMITTED BYLAW SHALL BE ~~BINDING~~ VALID AND SUFFICIENT SERVICE THEREOF AND (V) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON ~~AND SHALL INURE TO~~ THE ~~BENEFIT OF THE PARTIES AND THEIR AFFILIATES~~JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. (c) The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicable, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have the right to request the other Party to produce certain specified documents or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concluded. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Release Agreement (Brightpoint Inc)

Governing Law; Dispute Resolution. (a) THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF TEXAS (EXCEPT THAT, WITH RESPECT TO ISSUES RELATING TO TITLE TO REAL PROPERTY LOCATED IN (I) PENNSYLVANIA, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL GOVERN, (II) WEST VIRGINIA, THE LAWS OF THE STATE OF WEST VIRGINIA SHALL GOVERN, (III) NEW YORK, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND (IV) OHIO, THE LAWS OF THE STATE OF OHIO SHALL GOVERN), EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER TO THE LAWS OF ANOTHER JURISDICTIONThis Agreement shall be construed and enforced under and in accordance with and governed by the law of the State of Texas. (b) UPON THE WRITTEN REQUEST OF THE COMPANY OR THE PURCHASER, ANY DISPUTE, CONTROVERSY OR ~~CLAIM, DIRECTLY~~ CLAIM (“CONTROVERSY”) CONCERNING THIS AGREEMENT AND ANY OTHER CONTROVERSY BETWEEN ANY OF THE PARTIES (INCLUDING ANY CLAIM BASED ON OR ~~INDIRECTLY,~~ ARISING FROM NEGLIGENCE AND/OR AN ALLEGED TORT) ARISING OUT OF ~~OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR~~ THE TRANSACTIONS ~~THEY CONTEMPLATE~~CONTEMPLATED HEREBY, OR THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, BREACH, TERMINATION OR ENFORCEABILITY OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, COMMON LAW, OR EQUITY (A “DISPUTE”) WILL BE DETERMINED BY ARBITRATION. THERE SHALL BE ~~FINALLY~~A SINGLE ARBITRATOR WHO SHALL BE MUTUALLY SELECTED BY THE PARTIES FROM A PANEL OF NEUTRALS PROVIDED BY JAMS, ~~EXCLUSIVELY~~ UNLESS THE AMOUNT IN CONTROVERSY IS $1 MILLION OR MORE, IN WHICH CASE THE ARBITRATION PANEL SHALL CONSIST OF THREE ARBITRATORS. IF A SINGLE ARBITRATOR IS TO BE DESIGNATED, THE ARBITRATOR SHALL BE JOINTLY SELECTED BY THE PARTIES ACCORDING TO A LIST PROVIDED BY JAMS, BUT IF THE PARTIES ARE UNABLE TO AGREE, THEN JAMS SHALL DESIGNATE THE ARBITRATOR. IF A PANEL OF THREE ARBITRATORS IS TO BE USED, EACH PARTY MAY DESIGNATE ONE ARBITRATOR FROM JAMS’ LIST AND ~~CONCLUSIVELY RESOLVED BY BINDING~~ THE TWO SO SELECTED SHALL SELECT THE THIRD. THE ONLY JUDICIAL ACTION TAKEN CONCERNING A CONTROVERSY SHALL BE TO COMPEL ARBITRATION ~~UNDER~~ AND TO ENFORCE THE ~~RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (THE “ICC”) THEN IN EFFECT (THE “ICC RULES”)~~ARBITRATOR’S DECISION, EXCEPT AS SET FORTH IN PARAGRAPH (C) BELOW. ARBITRATION HEREUNDER SHALL BE CONDUCTED IN NUECES COUNTY, TEXAS IN ACCORDANCE WITH THE JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES, EXCEPT TO THE EXTENT MODIFIED ~~IN THIS AGREEMENT~~HEREBY. THE ~~AGREEMENT~~ ARBITRATOR SHALL DETERMINE THE AMOUNT AND RESPONSIBILITY FOR ATTORNEYS’ FEES AND COSTS TO ~~ARBITRATE AS SET OUT~~ BE AWARDED IN ~~THIS SECTION 14.14~~ CONNECTION WITH THE ARBITRATION. NO ACTION OR INACTION OF EITHER PARTY INCLUDING BUT NOT LIMITED TO THE PROSECUTION OF A LAWSUIT, SHALL EVER BE CONSTRUED TO CONSTITUTE WAIVER OF SUCH PARTY’S RIGHT TO REQUIRE THAT THE DISPUTE BE RESOLVED BY ARBITRATION. NOTHING HEREIN SHALL BE ~~BINDING ON AND SHALL INURE~~ CONSTRUED TO ~~THE BENEFIT OF~~ PREVENT THE PARTIES ~~AND THEIR AFFILIATES~~FROM MEDIATING ANY CONTROVERSY. (c) ~~The arbitral tribunal shall be comprised of three arbitrators. The claimant shall nominate one arbitrator and~~ Notwithstanding the respondent shall nominate one arbitrator in accordance with the ICC Rules, and the two arbitrators so nominated shall nominate a third arbitrator, who shall chair the arbitral tribunal within 30 days of the confirmation by the ICC Court of Arbitration (the “ICC Court”) of the appointment of the second arbitrator. If the chair or any other arbitrator is not timely appointed, on the request of either Party the chair or the other arbitrator shall be appointed by the ICC Court. Any chair appointed by the ICC Court shall be an experienced arbitrator, with at least 15 years’ experience as a judge or practicing attorney, and shall be unaffiliated and without prior or current financial alliances with any party. If practicableforegoing, the chair shall also have experience relating to transactions involving the acquisition, development and operation of oil and gas leases. (d) The arbitration proceedings shall be conducted in the English language, and all documents not in English submitted by either Party as evidence must be accompanied by a certified English translation. The arbitration proceedings shall be conducted and any arbitral award shall be rendered in Houston, Texas. (e) Any claim that involves a Dispute relating to rights or obligations that are also the subject of a dispute arising under or relating to another agreement involving one or more of the Parties may be joined in a single arbitration by the claimant, and any arbitration under this Agreement that involves a dispute relating to rights or obligations that are also at issue in another arbitration proceeding under another agreement involving one or both of the Parties shall, at the request of either Party, be consolidated with that other arbitration proceeding, with the consolidated proceeding to be conducted as a single arbitration before the panel of arbitrators appointed or nominated in connection with the earliest-initiated arbitration of the arbitrations to be consolidated; provided, that the arbitral panel for the arbitration so selected determines that: (i) the later Dispute presents significant issues of law or fact in common with those in the prior pending arbitration, (ii) neither Party to the dispute would be unduly prejudiced and (iii) such consolidation would not result in undue delay for the prior pending arbitration. The Parties agree that, upon such an order of consolidation, they will promptly discontinue any arbitration, the subject of which has been consolidated into another arbitral proceeding in connection with this Agreement. (f) Each Party shall have Purchaser retains the right to ~~request~~ seek injunctive relief in a court of applicable jurisdiction in the ~~other Party to produce certain specified documents~~ case of any breach or categories of documents directly relevant to the issues in dispute. In making any determination regarding the scope of production, the arbitral tribunal shall be guided by the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration. (g) The arbitration hearing on the merits shall begin no later than six months after the appointment threatened breach of the arbitrators is completed, unless the arbitrators determine, upon good cause shown, that the commencement of the hearing should be deferred until up to nine months after the appointment of the arbitrators is completed. The award shall be rendered no later than 30 days after the hearing on the merits is concludedNon-Competition Agreement. (h) In rendering an award, the arbitral tribunal shall be required to follow the law of the jurisdiction designated by the Parties herein, provided that issues involving application of arbitration law shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The artibtral tribunal shall not be empowered to award any damages limited by Section 12.4(d). In addition to direct damages, subject to Section 12.6, the arbitral tribunal may award temporary or permanent injunctive relief, and any other relief available at law or in equity, including but not limited to specific performance of any obligation under this Agreement or any ancillary agreement. The arbitral tribunal shall award costs, attorneys’ fees, and expert witness fees to the prevailing Party. The award shall include interest, at the Specified Rate (or, if such rate is contrary to any applicable usury Law, the maximum rate permitted by such applicable Law), from the date of any default, breach, or other accrual of a claim until the arbitral award is paid in full. The award shall be final and binding upon the Parties subject only to grounds and procedures for vacating or modifying the award under the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. The award shall be the sole and exclusive remedy between the Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof, over a Party or any of its assets. The Parties and their Affiliates agree to jointly request that any application for recognition or enforcement of an award be decided by the court on an expedited basis. All Parties and their Affiliates waive their right to appeal any court order confirming, recognizing, or enforcing the award. The Parties and their Affiliates do not waive any rights they may have to appeal a court order refusing to confirm, recognize, or enforce an award. (i) By agreeing to arbitration, the Parties do not intend to deprive any court sitting in Houston, Texas of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. The Parties and their Affiliates agree that no court other than a court sitting either in Houston, Texas will have authority or jurisdiction to enter interim orders, including but not limited to temporary restraining orders or temporary injunctive relief, and the Parties and their Affiliates shall not make any application for interim orders to any court other than a court sitting in Houston, Texas. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court sitting in Houston, Texas, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to the arbitration to request that any court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. (j) All notices by one party to a Dispute to another in connection with the arbitration shall be in accordance with the provisions of Section 14.7. Additionally, Buyer has appointed CT Corporation System, 000 X. Xx. Xxxx Xx. Ste 2900, Dallas, TX 75201, as its agent for service of process in connection with any Dispute or in connection with any application for an interim order from a court sitting in Houston, Texas. Buyer shall maintain the appointment and designation described in this Section 14.14(j) for service of process in Texas until the earlier of (a) one year following the expiration or termination of this Agreement and (b) the expiration or termination of the Participation Agreement; provided that such one year period shall be tolled in the event that this Agreement terminates as a result of any material breach by Buyer. The Parties agree that service of process in any court proceeding of the type described in Section 14.14(h) or Section 14.14(i) shall be effective if sent by certified mail to the Party to be served in the manner provided for the giving of notices in Section 14.7. (k) The arbitration conducted pursuant hereto shall be confidential. No party to a Dispute shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by another party to the Dispute in the arbitration proceedings or about the existence, contents or results of the proceeding, except as may be required by a Governmental Authority or by law or a regulatory authority or as required in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence, the party to the Dispute intending to make the disclosure shall notify the other parties to the Dispute of the intended disclosure and afford them a reasonable opportunity to protect their interests.

Appears in 1 contract

Samples: Asset Purchase Agreement (Carriage Services Inc)

Common use of Governing Law; Dispute Resolution Clause in Contracts