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January 23, 1992



The opinion of the court was delivered by: MILTON POLLACK


Pollack, Senior District Judge

 Petitioner National Development Company ("NDC") moves for summary judgment confirming an award issued by a tribunal of the Court of Arbitration of the International Chamber of Commerce, rendered on April 12, 1989, against respondent Adnan M. Khashoggi ("Khashoggi") in the amount of $ 4,441, 180.47. The motion also requests that the Court grant NDC post-award, pre-judgment interest on the award at the statutory rate. The Court finds that the Award of the Court of Arbitration, and the proceedings from which it issued, fully satisfy all the requirements of the Convention pertaining to confirmation, and that Khashoggi's objections to it are frivolous and diversionary. NDC's motion for summary judgment is granted in its entirety.


 In 1983 or 1984, NDC, a corporation wholly owned by the Government of the Phillipines, and Triad Holding Company ("Triad Holding"), along with its 100% shareholder Khashoggi, entered into negotiations for the establishment of a joint venture trading company. On May 16, 1984, NDC, Triad Holding and the joint venture company, Triad Asia, Ltd. ("Triad Asia"), executed a Shareholders Agreement, by which NDC and Triad Holding each subscribed to one-half of Triad Asia's stock. The Agreement provided that upon winding up of Triad Asia, NDC and Triad Holding would each receive a pro rata share of the assets after payments of all the liabilities. On November 22, 1984, NDC and Triad Holding entered into a further Memorandum of Agreement providing for arbitration if any disputes between the parties arose.

 On March 17, 1986, NDC and Triad Holding agreed to dissolve Triad Asia. NDC directed Triad Asia's bank to transfer the entire proceeds of Triad Asia's account to Triad Holding's account. Triad Holding was then supposed to transfer NDC's one-half share to the account of Philippine Associated Smelting & Refining Corp., another NDC company. Triad Holding never transfered the funds.

 In August 1986, NDC requested that Triad Holding and Khashoggi submit to arbitration of NDC's claim for one-half of Triad Asia's $ 7 million, relying on the arbitration clause in the Memorandum of Agreement between NDC and Triad Holding. As prescribed in the Memorandum of Understanding, the arbitration would take place before a panel in London, England under the auspices of the International Chamber of Commerce.

 In October 1986, NDC filed a complaint in this Court, seeking to compel Khashoggi to arbitrate. A default judgment was entered on October 15, 1987, on a September 23, 1987 decision, directing Khashoggi to arbitrate his dispute with NDC before the Court of Arbitration of the International Chamber of Commerce. The order, judgment and decree so entered reads:

 ORDERED, ADJUDGED AND DECREED: that defendant Adnan Khashoggi shall arbitrate his dispute with plaintiff in Case No. 5731/BGD (National Development Company v. Triad Holding Corporation, et al.) pending before the Court of Arbitration, the International Chamber of Commerce and that plaintiff shall have judgment against defendant Adnan M. Khashoggi in the amount of $ 80.00 for its costs and disbursements in this action.

 Dated: New York, New York

 September 23, 1987

 John Sprizzo


 The arbitration was held in London, England in February 1989 before a panel of three arbitrators chosen in accordance with the Memorandum of Agreement, and conducted under the procedures of the International Chamber of Commerce. NDC asserted that, following the agreement by NDC and Triad Holding to dissolve Triad Asia, Triad Holding converted NDC's 50 percent portion of the distribution of Triad Asia's assets, and that Khashoggi was jointly and severally liable with Triad Holding because he was Triad Holding's alter ego. Khashoggi did not appear at or participate in the arbitration.

 On April 12, 1989, the Arbitral Tribunal of the ICC rendered an Award in favor of NDC and against Khashoggi. In the Award, the Arbitral Tribunal held, first, that the dispute was one to which the parties had intended the arbitration clause of the Memorandum of Agreement to apply, and second, that Khashoggi was the alter ego of Triad Holding Co. and therefore could be considered a party to the Memorandum of Agreement. The Tribunal found Triad Holding and Khashoggi to be jointly and severally liable to NDC for the following sums: 1. Principal damages in the amount of $ 3,450,000.00 2. Interest on the principal amount of the Award from March 31, 1986 to April 12, 1989 $ 787,644.99 3. Costs of the arbitration $ 203,536.47 TOTAL: $ 4,441,180.47


© 1992-2004 VersusLaw Inc.

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