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Sonera Holding B.V v. Cukurova Holding A.Ş

September 10, 2012

SONERA HOLDING B.V., PETITIONER,
v.
CUKUROVA HOLDING A.Ş, RESPONDENT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

Petitioner Sonera Holding B.V. ("Sonera") seeks confirmation of a foreign arbitral award. Respondent Cukurova Holding A.Ş. ("Cukurova") resists confirmation, citing the absence of personal jurisdiction, forum non conveniens, and irregularities in the Swiss arbitration. For the following reasons, the petition for confirmation is granted.

BACKGROUND

Sonera is organized under the laws of the Netherlands; Cukurova is a joint stock corporation organized under the laws of the Republic of Turkey. The parties entered into a letter agreement dated March 25, 2005 ("Letter Agreement"). Section 5.4 of the Letter Agreement contained an arbitration clause, which reads in relevant part:

Any dispute, controversy or claim arising out of or in connection with this Agreement . . . shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the "ICC Rules"), except as such ICC Rules may be modified below.

(a) The place of arbitration shall be Geneva, Switzerland . . . . [ . . . ]

(d) Any award of the arbitral tribunal shall be final and binding on the Parties. The Parties hereby waive any rights to appeal any arbitration award to, or seek determination of any question of law arising in the course of arbitration from, jurisdictional courts.

(e) Any award of the arbitral tribunal may be enforced by judgment or otherwise in any court having jurisdiction of the award or over the person or the assets of the owing Party or Parties. Applications may be made to such court for judicial recognition of the award and/or an order for enforcement, as the case may be.

(Emphasis supplied.)

Sonera commenced arbitration under the ICC Rules on May 27, 2005. The principal issue of the first phase of the arbitration concerned whether the parties had concluded a share purchase agreement requiring the delivery of shares by Cukurova in Turkcell Holding A.Ş., a joint stock corporation that owns a controlling stake in Turkcell İletişim Hizmetleri A.Ş. ("Turkcell"), the operator of the largest mobile telephone service in Turkey, or whether the Letter Agreement had lapsed. During this phase of the arbitration, the tribunal addressed several objections to jurisdiction interposed by Cukurova.

On January 15, 2007, the tribunal rendered the First Partial Award, finding that it had jurisdiction and ordering Cukurova to sell shares to Sonera. When Cukurova failed to sell the shares to Sonera, the arbitration entered a second phase.

On July 29, 2009, the tribunal issued the Second Partial Award, ordering Cukurova to deliver the shares to Sonera and determining that the value of the shares as of July 30, 2007, was $1.8 billion in excess of the original $3.1 billion purchase price.

By letter of November 19, 2009, Sonera advised the tribunal that it waived its claim for delivery of the shares and sought damages for non-delivery. After a hearing on September 13 and 14, 2010, the tribunal issued a Final Award on September 1, 2011. In the Final Award, Cukurova was ordered to pay Sonera $932 million in damages for its failure to deliver the shares, with interest and costs.

On October 4, 2011, Sonera demanded payment. Sonera also commenced proceedings to enforce the Final Award. On October 4, it filed an application for enforcement in the British Virgin Islands; on October 14, in Switzerland and the Netherlands; and on October 17 in the Netherlands Antilles. Cukurova has opposed all efforts to confirm the Final Award.

Cukurova acknowledges that it cannot apply to Swiss courts to set aside the Final Award because the parties waived such rights in the Agreement. Cukurova did initiate its own arbitration in Switzerland on April 10, 2012, however, to obtain a refund of any amount to be paid pursuant to the Final Award. Sonera represents that it will commence an action in Turkey to enforce the Final Award after those Swiss proceedings have concluded. To date, Sonera has not been able to obtain any recovery on the Final Award.

On December 6, 2011, Sonera initiated this action seeking confirmation of the Final Award in the Southern District of New York. Service was completed in accordance with the Hague Convention on March 13, 2012, and a March 16 Order set a briefing schedule for Sonera's petition ...


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