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Paris, January 9,
2007
The Austrian Supreme Court has
confirmed that the arbitration award dated November 26, 2004 does not affect
Vivendi's rights with respect to its investment in PTC
On December 18, 2006 the Austrian Supreme Court
delivered a final judgment in the dispute between Vivendi's subsidiary Elektrim
Telekomunikacja (“Telco”), Deutsche Telekom and Elektrim with respect to the
arbitration award issued in Austria dated November 26, 2004.
The Supreme
Court confirmed that Telco was not a party to that arbitration, which was
between DT and Elektrim alone, and therefore that the arbitration award dated
November 26, 2004 could not affect Telco’s rights. Thus Telco's ownership of 48%
of PTC cannot be challenged on the basis of the Vienna arbitration.
After
the arbitration tribunal, the court at first instance and the Vienna Appeal
Court, the Austrian Supreme Court is the fourth tribunal to confirm the position
taken by Telco and Vivendi, which had throughout been disputed by DT and
Elektrim in their attempt to strip Telco of its 48% stake in PTC.
The
Supreme Court definitively and unambiguously rejected the interpretation put
forward by Deutsche Telekom and Elektrim, according to which the arbitration was
binding on Telco and therefore had the effect of stripping it of its investment
in PTC without any compensation being due. This voluntarily erroneous
interpretation was based on a extract from the arbitration award to distort its
meaning.
DT is the party that commenced the arbitration proceedings which
resulted in the award being issued in Vienna in 2004. By bringing their dispute
before the Vienna arbitration tribunal, DT and Elektrim undertook that they
would abide by and apply in good faith the judgment of the tribunal and its
final interpretation by the Austrian Supreme Court.
Deutsche Telekom, which claims to be the owner of the 48%
stake in PTC, is now therefore obliged to return it to Telco without delay.
Extracts from the judgment
follow:
“Upon the action of the first Defendant [DT] the
arbitral tribunal had determined with final and binding effect only against the
second Defendant [Elektrim] that the transfer of shares in Polska Telefonia
Cyfrowa, established in 1995, from the second Defendant [Elektrim] to the
Plaintiff [Telco] was legally ineffective. As regards the Plaintiff [Telco] the
arbitral tribunal passed a decision on lack of jurisdiction stating explicitly
that in the arbitration proceedings it [the Arbitral Tribunal] thus could not
deal with claims asserted by the first Defendant [DT] against the Plaintiff
[Telco]”
“In the present case the arbitral award has the effect of a
final and binding court judgement between the parties. Hence, it follows beyond
any doubt that the effect of a final and binding arbitral award – as well as a
court judgement – does in principle only extend to the parties” …
“It is a condition precedent to
the affirmation of the standing to file an annulment claim against an arbitral
award that the arbitral award pursuant to its objective content interferes with
the rights of the Plaintiff [Telco] asserting the annulment [of the award]. This
is not the case here.”
Important disclaimer: This press release contains
forward-looking statements with respect to the financial condition, results of
operations, business, strategy and plans of Vivendi. Although Vivendi believes
that such forward-looking statements are based on reasonable assumptions, such
statements are not guarantees of future performance. Actual results may differ
materially from the forward-looking statements as a result of a number of risks
and uncertainties, many of which are outside our control, including, but not
limited to, the risks described in the documents Vivendi filed with the Autorité
des Marchés Financiers (French securities regulator) and which are also
available in English on our web site (
www.vivendi.com). Investors and security holders may obtain a
free copy of documents filed by Vivendi with the Autorité des Marchés Financiers
at
www.amf-france.org
, or directly from Vivendi. The present forward-looking statements are made as
of the date of the present press release and Vivendi disclaims any intention or
obligation to provide, update or revise any forward-looking statements, whether
as a result of new information, future events or otherwise.
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