Un accord de coentreprise a été conclu entre une filiale américaine de la demanderesse n° 1 et la défenderesse n° 1, une société allemande. Avant le début de l'arbitrage, une procédure au titre du chapitre 11 du code américain des faillites avait été ouverte à l'égard de la filiale. Conformément au plan de restructuration, ses actifs locaux, à l'exclusion de la propriété intellectuelle, devaient être cédés à une société qui est ensuite devenue la demanderesse n° 1. Les défenderesses ont argué qu'en raison de la restructuration au titre du chapitre 11, la demanderesse n° 1 n'avait pas la capacité d'engager ou de poursuivre un arbitrage en son nom propre, ni d'ordonner à la coentreprise - demanderesse n° 2 - de déposer une demande. La demanderesse n° 1 a demandé au tribunal de faillite de confirmer et d'exécuter la cession qui lui avait été faite de tous les droits afférents à l'accord de coentreprise. Le tribunal a rejeté sa demande et considéré que toutes les questions qui lui avaient été soumises étaient arbitrables. Après la clôture de l'audience sur le fond, les défenderesses ont demandé au tribunal arbitral, à l'invitation de ce dernier, de statuer dans l'arbitrage sur la question de savoir si la demanderesse n° 1 avait la capacité de déposer des demandes dans le cadre de l'arbitrage ou d'inciter la demanderesse n° 2 à le faire (« bankruptcy issues »).

'134. Although it has been expressed by the Respondents in terms of waiver, Issue (7) [whether Respondents have waived their right to raise any of the "bankruptcy issues"] in fact raises the question whether, because they did not raise the "bankruptcy issues" earlier, they should not now be permitted to do so. That, as we see it, is a procedural issue that we have to decide at this stage. Both parties addressed this issue in the written submissions that they supplied to us in response to our request . . . Having carefully considered those submissions, we conclude on balance that-notwithstanding the lateness of the application-the right course is for us to allow these relatively limited issues . . . to be introduced into the arbitration, for the following reasons:

(A) first, the Respondents initially raised these issues, in broad terms, in their comments to the Chairman on the draft Terms of Reference dated October 11, 2005 when they invited us to include an issue in the Terms of Reference as to "what effect, if any, the bankruptcy proceedings . . . had on the parties' rights and obligations . . .". At the time that issue was not included in the Terms of Reference because it had not been raised as an issue in the Response to Request for Arbitration. Had it been suggested that, by excluding it at that point in time, the issue would be excluded for ever, the Respondents would doubtless have applied to amend their Response to include it. As it was, the Chairman stated on October 13, 2005 that the list of issues in the Terms of Reference was not intended to be exhaustive, and thereafter the matter was pursued by the Respondents independently of, but in parallel with their preparation for, the arbitration, until it was raised again in March 2006. As such, it was not something of which the Claimants were unaware;

(B) secondly, no doubt in part because it was not included in the Terms of Reference, the Claimants were not very forthcoming in response to the Respondents' inquiries. After some initial disclosure from the Claimants, the Respondents found it necessary to conduct separate inquiries of the . . . Secretaries of State. [Claimants] suggested that all the information upon which the Respondents subsequently came to rely was publicly and readily available, and could have been procured much sooner; but we accept the submission of the Respondents' Counsel that promptly after conducting their investigation, they brought matters to a head. It would, we think, in those circumstances be unfair to the Respondents were they not entitled now to raise the broad issue that they mentioned at the outset unless in the interim the Claimants had suffered some irremediable prejudice;

(C) thirdly, the point that the Respondents now wish to raise is a fundamental one. If they are right in their argument that the First Claimant lacks standing, and were we not to allow the issues in, the First Claimant would receive an award in its favour to which it was not entitled. The Respondents would then be thrown back on resisting enforcement proceedings; but we are not convinced that an enforcing court would permit an issue as to the First Claimant's title to sue to be raised at that stage, particularly if it has already been shut out by the Tribunal on grounds of lateness;

(D) fourthly, we are satisfied that no prejudice will be caused to the Claimants that cannot adequately be compensated by an award of interest and/or costs.

135. For these various reasons we conclude that the Respondents have not "waived" their right to raise the "bankruptcy issues" in this arbitration; and that their application to introduce them does not come too late.

136. The Claimants' principal response to the Respondents' application was one of waiver. As already indicated, this gives rise to a separate issue (Issue (8)): namely, whether the Respondents have waived whatever right they might otherwise have had to object to the assumption and assignment by [affiliated company] to [Claimant No. 1] of the [joint venture agreement] and Operating Agreement. That issue calls for separate investigation and determination. It is not an issue which is presently before us. We therefore say nothing more about it at this stage.

137. For completeness, however, we should briefly address two issues that were raised obliquely by the Claimants in a footnote on p. 2 of their . . . submissions. In that footnote the Claimants asserted that admitting the "bankruptcy issues" into the arbitration "would effectively require the conversion of the current arbitration into a new arbitration with new claims and counterclaims, new Terms of Reference, new Issues for Decision, and a new schedule". The Claimants then stated that they did not believe that the Tribunal had the authority to take that action; thereby raising two issues-first, as to our jurisdiction; and secondly as to the admissibility of new claims. We shall take these in reverse order.

138. First, given our ruling as to which Issues will be allowed in, we do not think that the Respondents' application raises any new claim (or counterclaim). As already noted, the Respondents have expressly asserted that it does not. All that the Respondents are to be permitted to do is to advance an additional defence to the claims that have already been brought against them.

139. Secondly, as to the broader question of our jurisdiction, essentially for the same reasons as we have given when considering [Claimant No. 2]'s claims, we do not think that the Respondents' application raises a jurisdictional issue. We reiterate that the Respondents wish to challenge the Claimants' standing and to contend that because the purported assignment of the [joint venture agreement] and Operating Agreement to [Claimant No. 1] was invalid or ineffective, the Claimants' claims must fail. In our judgment, whether that argument is right or wrong, that argument is in the nature of a substantive defence by the Respondents to that [sic] claims that have been brought against them, and as such it is plainly an argument that we have jurisdiction to determine.

140. Moreover, it is clear that we have jurisdiction under the ICC Rules to determine these issues even if they potentially go to our jurisdiction. The separability of the arbitration agreement from the agreement in which it is to be found is well known. Under Article 6(4) of the ICC Rules:

Unless otherwise agreed, the Arbitral Tribunal shall not cease to have jurisdiction by reason of any claim that the contract is null and void or allegation that it is non-existent, provided that the Arbitral Tribunal upholds the validity of the arbitration agreement. The Arbitral Tribunal shall continue to have jurisdiction to determine the respective rights of the parties and to adjudicate their claims and pleas even though the contract itself may be non-existent or null and void.

141. In addition, the issue of whether or not the "bankruptcy issues" are arbitrable has already been determined by the ruling of . . . the United States Bankruptcy Court . . . on . . . That ruling (which, so far as we are aware, has not been appealed) is binding on the parties to this arbitration. In his ruling, Judge . . . held that we had the jurisdiction and the authority to determine all of these issues, including the underlying merits of the dispute originally placed before us as well as possible issues of waiver and estoppel.

142. For these various reasons, we shall allow Issues (1), (2) and (8)-(10) to be introduced into the arbitration.'