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Enron Mail |
Thank you both for the very quick turn-around. Yes, I agree and hope that
OM will consent to the proposed changes. Mark T. Mark Elliott 04/23/99 05:49 AM To: Martin Rosell/OSL/ECT@ECT cc: Mark - ECT Legal Taylor/HOU/ECT@ECT Subject: Re: OMnet, etc. Martin, many thanks for your swift comments on the documents. You will see that I have passed on your comments to Mark Taylor and if Mark Agrees, I shall try to get inserted (1) an "whole agreement" clause plus (2) the arbitration method wehich you have suggested. May be Mark could just let me know on this score if he agrees. Kind regards Mark Martin Rosell 04/23/99 11:10 AM To: Mark Elliott/LON/ECT@ECT cc: Mark - ECT Legal Taylor/HOU/ECT@ECT Subject: OMnet, etc. With reference to your fax of 21 April, 1999 as to the enforceability of certain agreements under Swedish law, please receive the following comments: The relevant agreements are actionable in accordance with their respective terms. Please note, however, that the availibilty in Swedish courts of equitable remedies such as injuction and specific performance is restricted under Swedish law. The general remedy in the case of breach of contract is damages. Generally speaking, a Swedish judge would not be inclined to consider matters of fairness or reasonability in respect of a Swedish law contract between commercial parties such as ECT and OM. In the case of ambiguity, the court would try to establish the intention of the parties using different means of contract construction. If ECT wishes to ascertain strict reliance on the contract terms and framework, any court discretion could be limited further by way of imposing an 'entire contract clause'. Om's disclaimers for liability are fairly aggressive, but I assume that this is not uncommon in these type supply & services agreements. I cannot judge to what extent ECT risks incurring any liability towards OM. The relevant Arbitration Act should be referred to as "(1929:145)". More importantly, this Act (enacted in 1929) is expected to be replaced by new legislation for ad hoc arbitration. I believe that a bill for the purpose has been released by the Government. I'm not yet acquainted with the contents of the bill, but even if I dare say that the new arbitration provisions are likely to be moderns and OK you may wish, rather sailing into unknown waters, to propose to OM arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. I have no personal experience of this institute but ECT has done some due diligence on it (please see Vinge's response to the attached questionnaire), we refer to it in our physical Swedish contracts and it has a solid reputation in the world of international arbitration. Below follows its own recommended arbitration clause: "Any dispute, controversy or claim arising out of or in connection with [this contract], or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Rules of Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of ........................... arbitrators/a sole arbitrator. The place of the arbitration shall be .................................... The language(s) to be used in the arbitral proceedings shall be ..................................." If this is the preferred solution, this clause should be reflected in all agreements (and I doubt that OM would reject to it). Please check the address details of OM Gruppen AB (I believe the details may have changed to 'Norrlandsgatan 31 105 78 Stockholm'.). Martin
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