The claimant (a company registered in Brazil) and the two respondent companies (one registered in Brazil and the other in Luxembourg) were parties to an agreement relating to their shareholdings in a fourth company (X), also Brazilian, not a party to the arbitration. The dispute concerned the exercise of the parties' rights and obligations under the shareholders' agreement, which was governed by Brazilian law. Before and after the initiation of arbitration proceedings, the parties commenced proceedings in the Brazilian courts. The respondents in the arbitration proceedings objected to the arbitral tribunal's jurisdiction, alleging that the arbitration agreement was neither valid nor effective, that it offered the parties a mere option to arbitrate as opposed to an obligation, and that the claimant had waived its right to arbitration. These objections were rejected by the arbitral tribunal in an award on jurisdiction.

La société demanderesse (établie au Brésil) et les deux défenderesses (l'une établie au Brésil, l'autre au Luxembourg) étaient signataires d'un contrat relatif à leurs participations dans une quatrième société (X), elle aussi brésilienne, qui n'était pas partie à l'arbitrage. Le différend portait sur l'exercice des droits et obligations des parties conformément à la convention d'actionnaires, qui était régie par la loi brésilienne. Avant et après le début de la procédure d'arbitrage, les parties ont engagé des actions devant les tribunaux brésiliens. Dans l'arbitrage, les défenderesses contestaient la compétence du tribunal arbitral, arguant que la clause compromissoire était nulle et inopérante, qu'elle n'offrait aux parties que la possibilité, et non l'obligation, d'engager un arbitrage et que la demanderesse avait renoncé à son droit à l'arbitrage. Ces objections ont été rejetées par le tribunal arbitral dans une sentence sur sa propre compétence.

El demandante (una empresa registrada en Brasil) y las dos empresas demandadas (una registrada en Brasil y la otra en Luxemburgo) habían firmado un acuerdo relativo a su participación accionarial en una cuarta empresa (X), igualmente brasileña, que no era parte en el arbitraje. La controversia se refería al ejercicio de los derechos y obligaciones de las partes con arreglo al acuerdo de accionistas, que estaba regido por la ley brasileña. Antes y después de iniciarse los procedimientos de arbitraje, las partes emprendieron procedimientos en los tribunales brasileños. Los demandados en los procedimientos de arbitraje pusieron objeciones a la competencia del tribunal arbitral alegando que el acuerdo de arbitraje no era ni válido ni eficaz, que este ofrecía a las partes una mera opción de arbitrar en contraposición a una obligación y que el demandante había renunciado a su derecho de arbitraje. El tribunal arbitral rechazó estas objeciones a través de un laudo sobre la competencia.

'I. Issues to be determined in this Award on Jurisdiction

135. In this award, the Arbitral Tribunal shall decide on the jurisdiction issue. On this issue, the award shall be final. No findings shall be made in this award regarding the merits of the case.

136. The jurisdiction issue includes the following sub-issues:

- Which law applies to the arbitration agreement in clause 14.1 of the Shareholders' Agreement?

- Is the arbitration clause valid and effective under the applicable law?

- Is Claimant entitled to arbitrate under clause 14.1 of the Shareholders' Agreement, or does clause 18.2 of the Shareholders' Agreement recognise an optional nature of the arbitration agreement?

- If Claimant had a non-optional right to arbitrate, has Claimant waived such right by its conduct in (any of) the Brazilian state court proceedings?

- Does the risk of conflicting decisions and lack of enforcement challenge the Tribunal's jurisdiction?

- Is the Shareholders' Agreement an adhesion contract under Brazilian law, and, if so, are the requirements for enforceability of an arbitration agreement in an adhesion contract satisfied?

- The allocation of costs for the jurisdictional phase of the proceedings.

II. Respondents' objections based on the applicable law

137. Respondents object to the Arbitral Tribunal's jurisdiction on the basis that (i) Brazilian law governs the arbitration clause, (ii) the present Brazilian Arbitration Act of 24 September 1996 lacks retrospective effect and (iii) therefore, the arbitration clause is not mandatory, but merely gives the Parties the option of agreeing on arbitration.

138. The Arbitral Tribunal will deal with these objections in the following order: First, it will determine the applicable law; secondly, it will analyze the validity of the arbitration clause. Finally, and separately from the validity, it will examine the effectiveness of the agreement. The demarcation between the validity and the effectiveness of the arbitration agreement is important in light of the lack of effectiveness of such clauses under the pre-1996 BAA [Brazilian Arbitration Act] and Clause 18.2 of the SHA [Shareholders' Agreement].

139. Law applicable to the arbitration clause

140. Respondents contend that the Parties have chosen Brazilian law to govern the arbitration clause by virtue of clause 18.1 of the SHA. They state that in accordance with said selection of the governing law, the Tribunal is required to apply Brazilian law to the arbitration clause pursuant to Article 15(1) of the ICC Rules.

141. However, if in clause 18.1 of the SHA the Parties had the intention to stipulate an express choice of the procedural law that is to be applied to the arbitration agreement, they should have, in the Arbitral Tribunal's view, done so specifically. Moreover, Respondents overlook that the procedural law underlying an arbitration proceeding is determined by the seat of arbitration. According to clause 14.1 of the SHA, the seat of this arbitration is Zurich, Switzerland. Therefore, the Arbitral Tribunal is bound by the provisions of the 1987 Swiss Federal Law on Private International Law (Private International Law Act, "PILA"). Pursuant to Chapter 12, Article 176 of the PILA, Swiss law is applicable if the place of arbitration is Switzerland and if at least one of the Parties is neither domiciled nor has its habitual residence in Switzerland. These conditions are fully met in the present arbitration. Hence, Swiss law governs the arbitration clause.

142. Further, Respondents' assertion regarding Art. 15(1) of the ICC Rules is incorrect. Art. 15(1) of the ICC Rules only pertains to the proceedings before the Arbitral Tribunal,1 but does not relate to the legitimacy or effectiveness of the arbitration agreement.

143. Validity of the arbitration clause under the applicable law

144. Pursuant to Article 178(2) of the PILA, the arbitration clause is valid provided that it conforms either to the law chosen by the parties, the law applicable to the subject matter of the dispute or, in particular, the law governing the main contract, or if it conforms to Swiss law. In the present arbitration, this means that the clause needs to be valid either under Brazilian or under Swiss law.

145. The validity of the arbitration clause under Swiss law has not been challenged. The Arbitral Tribunal is convinced that under Swiss law, clause 14.1 of the SHA is valid.

146. As a subsidiary reason, the Arbitral Tribunal notes that even if one were to apply Brazilian law to the arbitration clause it would still be valid. Even before the 1996 BAA, an arbitration clause was a valid agreement. It merely did not oblige a resisting respondent to submit to arbitration, but called for an additional agreement between the parties (compromisso) in order to refer the dispute to arbitration. The arbitration clause was a contractual option to arbitrate. If the respondent refused to enter into a compromisso, the only remedy available to claimant was to request damages for the breach of the agreement to arbitrate . . .

147. Therefore, an arbitration agreement under the pre-1996 BAA might have been a mere option to arbitrate, but it was valid. Hence, clause 14.1 of the SHA is valid under both Brazilian and Swiss law.

148. Effectiveness of the arbitration clause under the applicable law

149. Under Swiss law, the effectiveness of an arbitration clause, i.e. the obligatory effect it has to submit a dispute to arbitration, is inseparable from its validity. The obligatory effect is the very purpose of an arbitration clause under Swiss law, as it is the case under most laws and not challenged by Respondents.2 Therefore, the Arbitral Tribunal notes that clause 14.1 of the SHA is enforceable if Swiss law applies. As it is the Arbitral Tribunal's view that Swiss law is indeed applicable, the arbitration clause is effective and binding.

150. As the arbitration clause is effective under Swiss law, the Arbitral Tribunal need not go into the question whether the arbitration agreement is effective under Brazilian law. Nevertheless, the Arbitral Tribunal is of the view that the agreement would be effective under this law as well.

151. The decisive question in this context is whether the arbitration clause is binding without the need for a compromisso. This depends on the question whether the 1996 BAA applies. The Arbitral Tribunal finds that it does. In the opinion of the Arbitral Tribunal, the 1996 BAA is a procedural law which had immediate effect and is to be applied not only to all arbitration agreements concluded after its implementation, but also to all arbitration clauses already in effect when the law was enacted.

152. The first argument that speaks for the procedural nature of the 1996 BAA is its Article 41. It requires state courts to immediately stay proceedings in light of an arbitration clause, therefore implementing a new procedural rule. The procedural nature is further emphasized by the fact that the statute does not address individuals, as substantive law does, but only the state courts, directing them in how to conduct the court proceedings.

153. Further, the Tribunal's opinion that the 1996 BAA is a procedural law is in accordance with the Superior Court of Justice (Superior Tribunal de Justiça, "STJ") of Brazil, the highest judicial authority for non-constitutional matters. In its decision Espal Representações e Conta Própria Ltda v. Wilhelm Fette GmbH (Recurso Especial No. 712.566-RJ) . . . the 3rd Panel of the STJ explicitly states:

Although it is reasonable to consider that some rules relating to arbitration have a substantive nature, it is necessary to state that the rules governing the effects of arbitration agreements are eminently of a procedural nature.

154. As to the question of when procedural rules come into effect, the discussions at the hearing between the Parties and the expert witnesses showed that under Brazilian law, there is a general principle that procedural acts apply immediately, i.e. not only to future, but also to pending cases. Said principle is confirmed by Art. 1211 CPC, which reads:

This Code shall govern civil procedures throughout the Brazilian territory. Upon being enacted, its provisions shall apply forthwith to all pending suits. . . .

155. The applicability of this principle for the 1996 BAA cannot be contested on the grounds that the BAA itself does not include a provision corresponding to Art. 1211 CPC. Art. 1211 CPC expresses a general principle. The absence of a corresponding provision in the BAA confirms that this principle shall be applicable to the 1996 BAA; had the legislators intended for the 1996 BAA to deviate from such principle, they would have inserted a special and clear provision to that effect. This view is supported by the Brazilian Bankruptcy Law which, as [the expert] stated at the hearing . . . contains an explicit exclusion of effect on pending proceedings.

156. Consequently, the 1996 BAA and its provision in Art. 41 had immediate effect, regardless of the date on which the arbitration agreement was signed. The majority of Brazilian case law and legal doctrine favours this opinion. The Supremo Tribunal Federal, the highest judicial authority for constitutional matters in Brazil has applied the 1996 BAA, including the binding effect of arbitration agreements provided therein, to arbitration agreements that were signed before 1996 in several cases.3

157. It can be concluded that clause 14.1 of the SHA is-should Brazilian law apply-governed by the 1996 BAA and consequently effective without the need for a compromisso.

158. Respondents' last objection in this context, which they had initially raised in their full statement, was that the Shareholder's Agreement was an adhesion contract under Brazilian law and that Claimant was unable to refer the dispute to arbitration pursuant to Article 4(2) of the Brazilian Arbitration Act . . . This objection was originally sustained by the expert opinion of [the expert]. However, at the . . . hearing, [the expert] did not uphold his opinion with respect to the SHA being an adhesion contract, but abandoned such argument.

159. Nevertheless, since Respondents themselves expressed that they maintain the argument . . . the Tribunal will comment briefly on this objection. Adhesion contracts are defined as agreements in which one of the parties has no contractual freedom or bargaining power, but limits itself to accept the terms and conditions previously established . . . Adhesion contracts are characterized by the denial of contractual freedom for one party.

160. Respondents argue that they simply adhered to the SHA as it was presented to them. However, it needs to be considered that Claimant did not draft the SHA alone, but that it was negotiated between the original parties to the SHA. Respondents became parties to the agreement by legal succession. No new contract was drafted and concluded. Whereas an adhesion contract is a new contractual relationship in which one party accepts the non-negotiable terms and conditions of a contract, in a situation like the present where Respondents entered the contract by way of succession, there is only an existing contract that now binds different legal entities.

161. Further, the purpose of Art. 4(2) BAA is to protect a weaker party from being deprived of its right to refer disputes to court simply by the fact that it has not enough bargaining power . . . However, in the present case, Respondents together hold approximately 80% of the shares in [X]. They cannot be considered as the weaker party in their relationship with Claimant.

162. Therefore, the Arbitral Tribunal finds that the SHA is not an adhesion contract. Consequently, the Arbitral Tribunal holds that Respondents' objections to the Tribunal's jurisdiction on the basis of the applicable law do not establish, whether considered separately or together, the lack of the Arbitral Tribunal's jurisdiction.

III. Respondents' objection based on Clause 18.2 of the SHA

163. Respondents argue that through clause 18.2 of the SHA, the Parties created a mere option to refer disputes to arbitration. The Parties supposedly established a twin-track dispute resolution mechanism, leaving them the free choice to invoke either of the tracks . . .

164. The Arbitral Tribunal does not share this view. For the reasons indicated below, it is convinced that clause 14.1 of the SHA conferred a right to arbitration to each of the Parties. Clause 18.2 of the SHA does not make the arbitration agreement optional and does not preserve the right of recourse to the Brazilian courts.

165. Respondents' position is based on the wording of clause 18.2 of the SHA, which reads:

If for any reason, including but not limited to the lack of appointment of arbitrators by any of the parties, claims or disputes are not settled by arbitration pursuant to clause 14 of this agreement, then said claims or disputes shall be settled by the Courts of the City of Rio de Janeiro, State of Rio de Janeiro, Brazil.

166. The Arbitral Tribunal does not understand this clause to make arbitration purely optional. Such meaning cannot be gathered from it. Had the Parties indeed intended to make dispute resolution by arbitration a mere option by way of clause 18.2 of the SHA, they could and would have expressed such intention clearly in the wording of the clause. However, the wording being as imprecise as it is in this respect, a full optional system, creating a twin-track dispute resolution mechanism, cannot be inferred from it.

167. Moreover, the question of an optional system of dispute resolution is closely linked with the previously addressed topic of the Brazilian arbitration law before and after the newly implemented Act of 1996. Since an arbitration clause was not effective under the pre-1996 law, in the Tribunal's view the Parties to the SHA contemplated the possibility that, beyond the cases that are objectively of non-arbitrable nature, disputes within the scope of clause 14.1 might not be solved by arbitration: Under the former Brazilian law, a respondent could block the arbitration process either by not entering into a compromisso, or by simply failing to appoint an arbitrator. Notwithstanding that the latter cannot have been relevant with clause 14.1 of the SHA providing for an ICC arbitration and making Zurich the place of arbitration, the Arbitral Tribunal is of the opinion that clause 18.2 of the SHA was intended to constitute a fall-back choice of forum for said events.

168. With the 1996 BAA and its immediate effect pursuant to the general rule laid down in Art. 1211 of the CPC, as shown above, this aspect of practical applicability of clause 18.2 of the SHA, irrespective of what it was truly intended for, became irrelevant: The arbitration agreement is effective under both Swiss and Brazilian law, unambiguously referring the dispute to arbitration.

169. Thus, the conclusion of the Arbitral Tribunal is that Claimant is entitled to arbitration under clause 14.1 of the SHA, and that clause 18.2 of the SHA has no effect in this respect.

IV. Respondents' objections based on the risk of conflicting decisions and lack of enforcement

170. Respondents suggest that the [Brazilian] courts and the Tribunal will need to conduct the same or closely related inquiries, and in doing so could reach opposite results.

171. The Tribunal disagrees. As follows from its observations at para. 143 to 162, the Tribunal considers the arbitration clause to be valid and effective. Therefore, with regard to the substantive merits of the dispute submitted to this Tribunal, no other tribunal or court is competent. Any other tribunal or court should abstain from ruling on the substance of the dispute. Thus, there can be no situation in which conflicting results with a decision on the substance of this arbitration can occur.

172. With regard to Respondents' assertion that Claimant, or in any event its appointees to the [X] Board, brought the subject matter of the present arbitration to the Brazilian state courts in actions against Respondents, or at least against [Respondent 1], it will follow from the Tribunal's observations at para 178 et seq. that only [Claimant]'s own actions can be relevant in this respect, but not those of its appointees to the [X] Board. Further, the Tribunal's observations at para. 178 et seq. will show that the actions by [Claimant] cannot be considered as a waiver of its contractual right to arbitrate. In the Tribunal's view, [Claimant] did not purport or intend to bring the substance of the present dispute, or part thereof, before the Brazilian courts by any of its actions.

173. In this context, Respondents finally suggested that Brazilian courts may refuse the enforcement of an award rendered by this Arbitral Tribunal. The Tribunal does not find that reasonably possible. Brazil is a party to the New York Convention. Thus, the Brazilian courts are bound to recognize and enforce an award which answers to the criteria of the Convention. Apart from their contention that the arbitration agreement between the Parties is invalid under the applicable law, which is rejected by the Tribunal, Respondents did not substantiate which elements of public policy might cause an obstacle for enforcement in this respect. The expert evidence did not establish any clear obstacles, either.

V. Respondents' objections based on a waiver of the right to arbitrate

174. Respondents allege that Claimant has waived its right to refer the present dispute to arbitration by its conduct in certain proceedings before the Brazilian state courts . . .

175. It is not in dispute that Claimant has not expressly waived its right to arbitrate. The question is whether it did so implicitly.

1. The elements of waiver

176. As Respondents themselves have not provided any standard that has to be met in order to assume a waiver and as they did not object to Claimant's definition of waiver, but even agreed to it . . . the Arbitral Tribunal follows such definition which it finds convincing. Therefore, a waiver of the right to arbitrate is implied if the following conditions are met:

- Implied waiver can only occur by the expression of a clear and manifest intention by both parties to waive their contractual rights to arbitrate. This amounts to a new agreement of the parties.

- Implied waiver can occur where (i) one party to an arbitration agreement commences court proceedings against another party to the arbitration agreement raising claims capable of settlement by arbitration under that arbitration agreement and (ii) the opposing party does not invoke the arbitration agreement to contest the court's jurisdiction.

- There can be no waiver where the subject of the court proceeding is a provisional or conservatory measure or a claim that is, or would be, outside of the arbitral tribunal's jurisdiction (for example matters that are inarbitrable or outside the scope of the parties' arbitration agreement).

2. The Brazilian state court proceedings in light of the definition of waiver and the ICC Rules

177. On the basis of said definition, Respondents' assertion that Claimant has implicitly waived its right to arbitrate cannot be followed. For the reasons set out below, the Arbitral Tribunal is convinced that Claimant's conduct in the Brazilian state court proceedings does not constitute an implied waiver of the right to arbitrate:

a) Non-identity of parties to the court proceedings and the arbitration agreement

178. To begin with, in accordance with the above stated criteria, an implied waiver can only be taken into account for those Brazilian court proceedings in which [Claimant] was either claimant or respondent and the respective other party of the proceeding was at the same time a party to the SHA. Therefore, out of all the Brazilian court proceedings discussed by the parties, only those proceedings deserve further consideration that meet said requirement of identity of parties.

. . . . . . . . .

180. . . . Respondents try to establish a connection between [some of the] proceedings and Claimant by the fact that directors of [X] that were appointed to the board by [Claimant] appeared as parties in these proceedings. However, this circumstance does not have any impact on the legal position of [Claimant].

181. The actions taken by a party-appointed director cannot be construed to express the party's own will and therefore cannot be assigned to that party. A director, whether appointed by one party or the other, should always be independent and neutral of such party and is committed to act in the interest of the company. He is not an agent for the company that appointed him.

182. Both expert witnesses . . . confirmed the independence of shareholder-appointed directors . . .

184. The Tribunal finds these statements convincing. As they are in compliance with the Brazilian Corporate Law, i.e. Art. 154 and 155 that explicitly provide for a director's independence, the Arbitral Tribunal is convinced that under Brazilian law, shareholder-appointed directors are, conceptually, legally entirely independent of the shareholders that appointed them. Due to the clear rules established by the Brazilian corporate law and the fact that a breach of these rules of conduct is even put under penalty, there can be no doubt that in a legal dispute, a director and the shareholder that appointed him to the board cannot be considered as being one party.

185. Further, taking the above-mentioned provisions of the corporate law into account, the interests of the director and the shareholder can be, yet do not have to be identical: a director is bound by numerous rules of conduct that clearly outline his position and duties as a director in the company. These rules are enforced by a possible penalty for misconduct, whereas the shareholder is not facing such duties and/or penalties. A director litigating a dispute should always represent the interests of the company, irrespective of the interests of the shareholder that appointed him.

186. Recapitulating, a director does not act on behalf of the shareholder that appointed him. His actions are not to be considered as actions of the shareholder. Thus, [the proceedings in question] cannot amount to a waiver by [Claimant]. . . . All of these proceedings can be disregarded.

187. The same is true for proceedings nos. 1, 2, 3, 5, 6, 8, and 16. In these proceedings, [Claimant] is acting against [X], or conversely [X] is acting against [Claimant] (no. 16). In proceeding no. 16, [Claimant] does not appear to have opposed the Brazilian State court's jurisdiction by invoking the arbitration agreement. However, [Claimant]'s conduct can only amount to a waiver of the arbitration clause if both parties in said proceedings are at the same time parties to the arbitration agreement. That is not the case. As explained below and supported by both Parties' experts, the Arbitral Tribunal is convinced that [X] is not a party to the SHA and therefore not bound by the arbitration clause in Section 14.1. Consequently, it is irrelevant whether [Claimant] invoked the arbitration agreement in the disputes with [X].

188. According to Clause 14.1 of the SHA, the "Shareholders" are bound by the decisions in the arbitral proceedings, and they are obliged to take all necessary steps to give effect to any award made therein. The clause explicitly refers to the "Shareholders"; however, no reference is made to [X]. Hence, the clear wording of the arbitration agreement gives first proof that [X] is not a party to it.

189. Contrary to Respondents' assertions, this conclusion is not affected by clause 5.1 of the SHA. Both Parties' expert witnesses unanimously testified . . . that Clause 5.1 merely pays credit to the requirements of Article 118 of the Brazilian Corporations Law and does not establish any further rights or obligations for [X] than envisaged by Article 118 of the Corporations Law, i.e. to assume a notary-like . . . role observing the compliance of certain processes with the Shareholder's Agreement. The duties mentioned in clause 5.1, especially that [X] undertakes itself to comply with all the provisions of the SHA, do not mean that [X] has to perform any obligation other than those provided for in Article 118 of the Corporations Law; [X] has no obligations under the SHA itself. The rights and duties contained in a shareholders' agreement relate exclusively to the shareholders, not the company. Therefore, the Arbitral Tribunal, supported by the congruent statements of both expert witnesses, is convinced that Clause 5.1 of the SHA is simply a clause to emphasize and underline [X]'s compliance with Article 118 of the Corporations Law.

190. Further, the Arbitral Tribunal, again confirmed by both expert witnesses' statements . . . holds that in any case [X] cannot have been a party to the arbitration clause regarding the subject matters submitted to the Brazilian courts in the cases discussed. The subject matters are of a corporate nature; in order for a company to bring them before an Arbitral Tribunal, an arbitration agreement would have to be included in the by-laws of the company. There is no such arbitration agreement in the by-laws of [X].

191. Clause 20.1 of the SHA is irrelevant in this respect. The by-laws of [X] have not been amended so as to include an arbitration agreement for corporate matters, allowing the company to submit disputes to arbitration. In any case, even if such a clause existed in the by-laws, it would have been this clause that would have been waived by Claimant with respect to the relationship to [X], but not clause 14.1 of the SHA regarding the relationship with the other shareholders.

192. Finally, in its rejoinder in proceeding no. 16, submitted . . . by the same counsel representing [Respondent 1] in this arbitration, [X] itself explicitly stated that it does not consider itself to be a signatory party to the arbitration agreement, but merely an intervening party to the agreement. . . .

193. These unambiguous submissions underline the Arbitral Tribunal's view that [X] is not a party to the arbitration agreement in clause 14. 1 of the SHA. Therefore, all proceedings in which [Claimant] acted against [X] or in which [X] acted against [Claimant] . . . can be disregarded based on the lack of identity of parties to the state court proceedings and the arbitration agreement.

b) No implied waiver by interim or conservatory measures, Art. 23 (2) ICC Rules

194. It is a generally accepted principle that the right to arbitrate cannot be waived by commencing conservatory or interim measures proceedings. Art. 23(2) of the ICC Rules explicitly provides that the application of a party to a judicial authority for such measures shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal.

195. Proceedings nos 7 and 9 of Respondents' core bundle are so called Protestos filed by Claimant against [Respondent 1]. They are conservatory measures to stop the statute of limitations regarding the right to commence proceedings for damages caused by [X]. Therefore, proceedings nos. 7 and 9 cannot constitute a waiver of the right to arbitrate according to Art. 23(2) of the ICC Rules.

c) Invoking of the arbitration clause at the beginning of the proceedings

196. The Parties are in agreement . . . that there can be no implied waiver of the right to arbitrate if the opposing party timely invokes the arbitration agreement to contest the court's jurisdiction.

197. In proceedings nos. 15, 17, 19 and 20, Claimant has invoked the arbitration clause at the beginning of the proceedings, i.e. in its respective reply statements, thus duly challenging the state court's jurisdiction.

198. Nevertheless, Respondents purport that in proceedings no. 19 Claimant has waived its right to arbitrate, notwithstanding that it invoked the arbitration agreement in its Reply . . . The Arbitral Tribunal does not agree with Respondents. Claimant's conduct in proceeding no. 19 does not constitute a waiver of the right to arbitrate.

199. Respondents try to establish that the interlocutory appeal filed by . . . was an action on behalf of [Claimant, filed by a person nominated by Claimant as director of [X] in his capacity as assistente] and therefore constituted a waiver of the right to arbitrate . . .

202. According to both expert witnesses who were in agreement . . . with regard to this subject, too, the question of assistance is a mere procedural one. The experts both convincingly set out the nature of procedural assistance in accordance with Section 50 CPC:4 The assistant is not identical to the party he is assisting. He has his own part and position in a legal dispute. In order to be admitted to a proceeding, he has to have his own interest in the outcome of the dispute.

203. Therefore, a director in his procedural capacity as an assistant to a shareholder who is a party is always representing his own personal interests, irrespective of the interests of the shareholder that appointed him, and even if their respective interests in the outcome of the dispute are the same. Hence, the actions of the assistant cannot be construed as the actions of the assisted party, nor can the actions of an assistant amount to a waiver of rights by the assisted party.

204. Therefore, the actions of [the director] in proceeding no. 19 are irrelevant with respect to [Claimant]'s right to arbitrate. [The director] was pursuing his own personal interests with respect to his position as a director of the company [X]. [One of the experts] convincingly explained . . . the personal interest of [the director]:

And as the title says, basically he was nominated the director of the company [X] because of the Shareholders' Agreement, and if there is no Shareholders' Agreement, he would lose his position as director, so he has a personal interest, it is what he said, and it is in the procedure. I don't know the man, I was not there, but in the procedure, it is the idea, the basic idea that he is the director and he wants to maintain his position and to know exactly what he will do, if he continues to be a director or not.

205. Further, and independently of the foregoing, it is undisputed that in its decision . . . [the state court] granted [the director]'s request to intervene as an assistant. As such a request is only granted if the assistant has a personal interest in the outcome of the dispute, the [court] was apparently convinced that [the director] had such interest and treated him accordingly. Therefore, in the further proceedings before the court, including proceeding no. 19, [the director] must be treated as an assistant with his own personal interest. His actions cannot be attributed to [Claimant] as the assisted party.

206. Apart from that, it needs to be emphasized that [Claimant] invoked the arbitration agreement in its Reply . . . This objection to the state court's jurisdiction by [Claimant] itself is in any case more significant than [the director]'s appeal against the interim injunction . . ., even if he did not mention the arbitration agreement in it.

207. Finally, the appealed interim injunction . . . is an interim measure in terms of Art. 23(2) ICC Rules. The appeal against such an interim injunction is still part of the interim measures proceeding and therefore shall not be deemed to be a waiver of the arbitration agreement, Art. 23(2) ICC Rules.

d) Brazilian court proceeding no. 18

208. Respondents assert that by its conduct in connection with proceeding no. 18, Claimant has implicitly waived its right to arbitrate against [Respondent 2] under clause 14.1 of the SHA . . .

209. The Arbitral Tribunal disagrees with Respondents. Claimant did not express a clear and manifest intention to relinquish its contractual right to arbitrate against [Respondent 2] by its actions in proceeding no. 18.

210. First of all, proceeding no. 18 has precisely the same subject matter as proceeding no. 15: in both cases, the plaintiff has initiated a declaratory suit aimed at the termination of the SHA. Also in both cases, [Claimant] is the defendant, in one case along with [Respondent 2] (no. 15), in the other case along with [Respondent 1].

211. Proceeding no. 15 was brought [six weeks before] [Claimant] filed its reply, expressly objecting to the court's jurisdiction by invoking the arbitration agreement.

212. In the meantime . . . [Respondent 2] had filed proceeding no. 18 [in a different court], seeking identical relief and based on identical grounds as in proceeding no. 15.

213. It is true that in the following, Claimant filed petitions . . . in proceeding no. 18 without invoking the arbitration clause. However, this does not constitute a waiver of the right to arbitrate. The petitions . . . were aimed at consolidation of proceeding no. 18 with proceeding no. 15 . . . At the time when the petitions in proceeding no. 18 were filed, [Claimant] had already explicitly invoked the arbitration clause [in proceeding no. 15].

214. As the invoking of the arbitration agreement in proceeding no. 15 was prior to the request for relegation of proceeding no. 18 to the [same court], it was not necessary for [Claimant] to expressly invoke the arbitration agreement in proceeding no. 18 once more. It did not waive its right to arbitrate by filing a petition without expressly invoking the arbitration agreement. Moreover, by submitting that the two relevant proceedings should both be judged by [the same court], and by having invoked the arbitration agreement before said court, [Claimant] clearly adopted the objection for proceeding no. 18.

215. Even if one were to disagree with that, the application for consolidation filed by Claimant . . . could still not be construed to express Claimant's clear and manifest intention to relinquish its contractual right to arbitrate. Not to invoke an arbitration agreement in a mere procedural application to assign the case to a different court without going into the merits of the case at all cannot express such a clear and manifest intention.

216. Further, Respondents purport that Claimant has waived its right to arbitrate when filing its interlocutory appeal . . . That, too, is incorrect.

217 . . . the . . . court granted [Respondent 2] the requested ex parte interim injunction in proceeding no. 18 terminating the SHA. It was against this interim injunction that Claimant filed its interlocutory appeal . . .

218. In its appeal, Claimant expressly reiterated . . . its request for relegation of the whole proceeding to [the court hearing proceeding no. 15]. Therefore, Claimant once more referred to the corresponding proceeding no. 15 in which it had invoked the arbitration agreement, and in doing so again adopted the objection to [the other court]'s jurisdiction on the basis of clause 14.1 of the SHA. That alone is enough to prove that by filing the interlocutory appeal, [Claimant] cannot possibly have waived its right to arbitrate.

219. It is true that after raising the issue of consolidation, Claimant did address the merits of the case in its interlocutory appeal. However, this did not affect the right to arbitrate in any way.

220. First, Art. 23(2) ICC Rules clearly states that any applications or submissions within an interim measures proceeding do not constitute a waiver of the arbitration agreement. The appealed decision was an interim injunction, hence a decision within an interim measures proceeding. The interlocutory appeal challenging this interim decision consequently is part of the interim measures proceeding as well. Therefore, pursuant to Art. 23(2) of the ICC Rules, the interlocutory appeal is of no relevance for the question of waiver of the right to arbitrate.

221. Secondly, in order to appeal against the interim injunction, Claimant needed to show that there were no grounds for such an interim measure. That is what Claimant did in its interlocutory appeal in para. 30 et seq. Consequently, section IV of the appeal is explicitly headed: "Of the absence of the authorizing requirements for the granting of advance relief-lack of similarity and the danger of damages: […]"

222. This heading clearly reflects the nature of the remarks that are to follow. They are not at all submissions with respect to the merits of the main case, but merely Claimant's remarks on the lack of the authorizing requirements for the granting of the appealed interim injunction. Of course, in order to substantiate its submission, Claimant had to demonstrate that the submissions of its adversary did not suffice to allow advance relief on the merits. It was only in this context-i.e. in the context of opposing the interim decision by showing that there were no sufficient grounds for interim relief-that Claimant made remarks on the merits.

223. Claimant made this point very clear in its interlocutory appeal, emphasizing the nature of the interim relief and its submissions therein . . .

224. Therefore, the Arbitral Tribunal is convinced that [Claimant]'s remarks "on the merits" are not to be considered as if Claimant had entered into the merits of the main proceeding no. 18. Moreover, they are Claimant's consequent and logical attempt to have the interim injunction overturned due to the lack of requirements for interim relief.

225. Notwithstanding the foregoing, the Arbitral Tribunal additionally emphasizes that [Claimant] in the end did invoke the arbitration agreement in proceeding no. 18. . . .

e) Conclusion: no implied waiver

226. The Arbitral Tribunal concludes that Claimant has not waived its right to arbitrate under clause 14.1 of the SHA by its conduct in the proceedings before the Brazilian State courts.'

1
Derains/Schwartz, A Guide to the New ICC Rules of Arbitration, 2nd edition, The Hague 2005, p. 223.

2
Respondents' expert . . . stated at the hearing, generally speaking about the enforceability of arbitration agreements: "The very essence of the arbitration agreement is the possibility of enforcement." . . .

3
For instance Aiglon Dublin Limited v. Teka Tecelagem Kuenrich S.A., SEC No. 5.847, of 1 December 1999, found in C-1 Annex 16; Elkem Chartering A/S v. Conan-Companhia de Navegação do Norte, SEC No. 5.828, of 6 December 2000, found in C-1 Annex 17.

4
Art. 50 CPC reads: "In the event one cause is pending between two or more persons, the third party, who may have legal interest in a favorable judgement for one of them, may intervene in the lawsuit in order to assist it."