Case 2:19-cv-04280-SVW-SS Document 11-2 Filed 06/24/19 Page 111 of 241 Page ID #:687 Answer to the Notice of Arbitration Paul van Dyk GmbH and Matthias Paul v. ALDA Events B.V. Kennedy Van der Laan 28 March, 2017
ANSWER TO THE NOTICE OF ARBITRATION
Paul van Dyk GmbH and Matthias Paul v. ALDA Events B.V. March 28, 2017
1. INTRODUCTION 1.1. By Notice of Arbitration from March 7, 2017, Paul van Dyk GmbH and Matthias Paul p/k/a Paul van Dyk (individually referred to as “Claimant 1” and “Claimant 2”, respectively and jointly as “Claimants”), have notified the ICDR of their demand that a dispute between Claimants and ALDA Events B.V. (“Respondent”) is to be referred to arbitration.
1.2. In this Answer, Respondent shall briefly reply to such demand by raising several preliminary defenses against the validity of the arbitration agreement, the parties to this arbitration and the scope of the claims brought by Claimants.
1.3. After first addressing the particulars of the parties and Respondent’s representatives in chapter 2, Respondent shall put forward its preliminary defenses related to the lack of an arbitration agreement (chapter 3), the lack of standing of Claimant 2 (chapter 4) and the scope of the claims brought by Claimants in this Arbitration (chapter 5). Respondent will conclude this Answer with a few particulars and observations concerning the arbitrator (chapter 6) and other relevant matters (chapter 7).
1.4. Respondent submits one Exhibit with this Answer, numbered Exhibit R-1. 1.5. Respondent expressly reserve the right to describe, amend and add to its defense and arguments in more detail in a separate Statement of Defense to be filed at a later stage of the arbitration after consultation with the arbitrator to be appointed.
2. PARTICULARS OF THE PARTIES AND THE CLAIMANTS’ REPRESENTATIVE
A. Claimants 2.1. Claimant 1 is a legal entity incorporated under German law. Upon information and belief, Claimant 1 employs several persons to run its business.
2.2. Claimant 2 is a German DJ that operates under the artist name of “Paul van Dyk”.
B. Respondent 2.3. Respondent is a company incorporated under the laws of The Netherlands, with its registered address at:
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ALDA Events B.V. Anthony Fokkerweg 61 1059 CP Amsterdam The Netherlands
Tel: +31(0)20 758 10 60
C. Counsel for Respondent 2.4. In this Arbitration, Respondent is represented by its counsels: Kennedy Van der Laan Haarlemmerweg 333 1051 LH Amsterdam The Netherlands
Tel: +31 (0)20 5506 846 Fax: +31 (0)20 5506 946 Email: [email protected] Represented by: Dr. Christoph Jeloschek and Dr. Esther Pans
2.5. All communications to the attention of Respondent in connection with this Arbitration should be directed to Christoph Jeloschek at the address indicated above.
3. LACK OF AN ARBITRATION AGREEMENT A. Background of the dispute 3.1. Respondent is an organizer of the well-known Trance Festival “A State Of Trance”, which is a world-wide event that is held in several countries. As part of the 2016 tour, a festival was held in the city of Utrecht in The Netherlands.
3.2. Claimant 2 was part of the line-up of 40-some DJ’s and scheduled to play at 3:30 am in the morning as one of the last DJ’s at the main stage. His tour manager entered the stage approx. 30 minutes earlier to set up the DJ equipment on a separate sliding table next to the DJ playing at that time. Claimant 2 entered the stage a few minutes before his appearance.
3.3. After having performed for approximately 15 minutes, Claimant 2 - assisted by his tour manager Robert Protzmann - climbed on the table that separated the stage from the décor between the stage and the audience. He first jumped from the stage on the empty spot on the table next to his turn-tables and then decided to walk towards the décor, covered with stage covering. After a few steps, Claimant 2 stepped onto the décor and subsequently fell through the décor.
3.4. It is important to note that the décor has not been designed to walk on and has clearly not been a part of the stage where the DJ’s perform. In fact, the DJ’s are separated by a long
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table from the audience which holds the DJ equipment, the so-called DJ booth. This DJ booth is not meant to be climbed upon, not least as it also features two rails on both sides which are used to slide the different DJ sets into the centre of the stage. The décor bridges the space between the stage and the audience and is part of the overall theme and presentation of the show.
3.5. Neither Claimant 2 or his tour manager have informed Respondent of Claimant’s 2 intention to climb on the DJ booth and to walk on the décor.
3.6. The dispute between parties centres on the question whether the stage was unsafe and, thus, whether Respondent can be held liable for breach of contract as it allegedly failed to provide a safe environment in the light of the question what is considered to be “normal use” of the stage.
B. The relevant agreement 3.7. Prior to the event, parties entered into negotiations about the commercial and operational parameters of the engagement. The details were recorded in several contractual documents:
(a) an agreement for the engagement with general terms and conditions (“Agreement”) (b) a Tech & Hospitality Festival-Rider containing operational and technical details, and (c) a Streaming and Broadcasting Agreement. 3.8. The Agreement is based on a template from the Creative Artists Agency, a Los Angeles- based agency. It was concluded between Claimant 1 (referred to as the producer) and Respondent (referred to as the purchaser); Claimant 2 was neither listed as a party nor did he sign the agreement.
3.9. However, the actual version signed by Respondent (Exhibit R-1) is not identical to the version submitted by Claimants in Exhibit 1. In fact, Respondent has never received that version or, for that matter, a counter-signed copy of the version it had signed. It should be noted that this last version contains a few additions which have therefore not been agreed upon between parties. As a result, parties failed to reach agreement on the terms and conditions thus recorded.
3.10. Besides, Respondent does not know whether the person who signed the Agreement on behalf of Claimant 1 has actually been authorized to do so. The stamp of Claimant 1 included as part of the signature seems to suggest that the person signed on behalf of Claimant 1. Given these uncertainties, Respondent disputes that the version of the Agreement - if and to the extent it can be seen as a meeting of minds at all - has been concluded by an authorized representative of Claimant 1.
3.11. Given the absence of an Agreement, the relationship between parties is solely governed by the two remaining contractual documents (see 3.7 sub b and sub c above). It should be
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noted that the Tech & Hospitality Festival-Rider contains all the necessary details required for the event, including operational details for the stage and audio controls; FOH, lightning and video controls and hospitality arrangements. However, this document from Claimant 1 did not contain information as to the minimal bearing strength of the DJ booth, or any other requirement that the DJ booth needed to be able to bear the weight of a person standing on it. Respondent therefore was not aware, and had no reason to believe, that the DJ booth would be climbed upon and used for jumping during the performance.
C. The arbitration agreement is invalid 3.12. Based on the above, there is no arbitration agreement as the Agreement containing the relevant clause has not been validly concluded.
3.13. What is more, Respondent has never consented to the arbitration agreement in clause 24 of the general terms and conditions attached to the Agreement. As it clearly follows from its own signed copy, Respondent has initialled all pages of its version except for the page containing the arbitration clause.
3.14. Respondent therefore challenges the jurisdiction of the arbitration tribunal and requests the ICDR/arbitration panel to address this question by way of a separate, preliminary defence in a separate written round.
4. LACK OF STANDING OF CLAIMANT 2 4.1. As pointed out at 3.8 above, Claimant 2 is not a party to the Agreement. Accordingly, he does not have legal standing to also bring his tort claims in the context of the personal injuries suffered by him in this Arbitration.
4.2. It should be note that that this ‘accumulation’ of Claimants is a clear-cut effort on the part of Claimant 1 to increase the scope of the Arbitration, more in particular to extend its own claims for contractual breach under the Agreement to also cover personal injuries claims otherwise subject to foreign law (i.e. Dutch law as the law of the event where the damage and the alleged action took place) and a different forum.
4.3. Respondent therefore requests the ICDR/arbitration panel to address this lack of standing as part of the separate, preliminary defence request under 3.17 and to declare itself inadmissible to hear the claims of Claimant 2.
5. SCOPE OF THE CLAIMS BROUGHT BY CLAIMANTS IN THIS ARBITRATION 5.1. In addition, Respondent makes the following observations on the scope of the claims brought by Claimants:
(a) As pointed out in Chapter 4, Claimant 1 attempts to increase the scope of this Arbitration by claiming damages for personal injuries suffered.
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(b) As a result, Respondent is also subjected to a non-contractual claim (i.e. tort claim) as part of to the contractual dispute between Claimant 1 and Respondent. This is not only extending the scope of the contractual arrangements (including liability and insurance provisions), but also putting Claimant 1 in a better position that provided by the Agreement by increasing the amount and type of damages it may claim.
(c) Even if CA law were to apply to Claimant 2 and his tort claims as well, regard must be had to the Dutch law aspects of the accident. Since the event took place in The Netherlands, local law is paramount in assessing the safety standards and related measure applied by Respondent.
5.2. Respondent requests the ICDR to take these considerations into account - both as part of the preliminary written round request to address Respondent’s challenge of the jurisdiction, or as part of a possible full-blown arbitration proceedings - when selecting an arbitrator for this Arbitration.
6. APPOINTMENT OF THE ARBITRATOR(S) AND COMMENTS AS TO THE PROCEDURE Procedural measures
6.1. Without prejudice to Respondent’s challenge of the jurisdiction of the ICDR (see Chapter 3.C above), clause 24 of the general terms and conditions of the agreement provides for arbitration under the following terms:
(a) Applicable law: the arbitrator shall apply the laws of the State of California without regard to its conflicts of law rules. Note, however, that this rule, if and to the extent applicable, only deals with the relationship between Claimant 1 and Respondent.
(b) Place of Arbitration: the arbitration shall be held in Los Angeles, California. (c) Applicable rules: while the arbitration shall be conducted in accordance with the commercial rules and regulations then in effect of the American Arbitration Association, no reference is made to a specific set of rules. Since the dispute is between two foreign entities (i.e. based in Germany and The Netherlands, respectively) and the accident took place in The Netherlands, this is a clear-cut case of an international arbitration. Accordingly - and pursuant to article 1 of the International Arbitration Rules of the AAA and the ICDR as its international chapter - the aforementioned rules apply. For the avoidance of doubt, this is also in line with the actual application made to the ICDR (as follows from the application form used by Claimants) and the fact that this arbitration has since been administered by the ICDR.
6.2. Respondent therefore requests the ICDR to confirm that the International Arbitration Rules are applicable to this arbitration.
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Considerations about the appointment of the arbitrator(s)
6.3. Since the arbitration clause remains silent as to the amount of arbitrators, it has to be decide whether one or three arbitrators are to be appointed. To that end, Respondent would like to make the following observations.
6.4. Despite the choice of law clause, the claim brought by Claimants also relates to possible non-contractual liability. Since Respondent is of the opinion that Claimant 2 is not a party to the Agreement, this type of claim, if admissible in this Arbitration, is a matter of Dutch tort law. Even it that were different, the dispute also has other important links with Dutch law, as it is the local law applicable to the safety aspects and related issues prevailing at the place of the accident.
6.5. Therefore Respondent suggests to appoint: (a) either a sole arbitrator with a dual qualification in CA and The Netherlands or otherwise expertise in Dutch law, and a background in personal injury law as the dispute (as explained in 3.A above) boils down to assessing whether the stage was unsafe and, thus, whether Respondent can be held liable for breach of contract as it allegedly failed to provide a safe environment in the light of the question what is considered to be “normal use” of the stage;
(b) or - if a sole arbitrator cannot be found that meets these criteria - three arbitrators with different legal backgrounds and nationalities to address the various issues at stake (e.g., a lawyer qualified in CA and two lawyers with a degree in Dutch and German law, respectively) with the aforementioned personal injury law background. In this context, it should be noted that the ICDR Rules do not oppose the choice of an arbitrator that has the same nationality as one of the parties to the Arbitration.
6.6. At any rate, the arbitrator(s) chosen shall have experience in international arbitration to take into account the international character of this Arbitration, as well as experience with the organization of comparable, international dance events.
7. OTHER RELEVANT MATTERS 7.1. Respondent reserves (i) the right to make further submissions of fact and of law in support of its preliminary defences stated herein, (ii) the right to raise defences concerning the substance matter of the dispute if the arbitrator rules that it has jurisdiction to hear this case, and (iii) any and all rights it may have against Claimants.
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7.2. In concluding, Respondent requests the ICDR and/or the arbitrator to be appointed: (a) to order a separate written round to address - by way of a preliminary defence - Respondent’s challenge of both (1) the jurisdiction of the arbitration tribunal (cf. 3.14 above) and (2) the lack of standing of Claimant 2 (cf. 4.3); (b) to confirm that the International Arbitration Rules are applicable to this arbitration (cf. 6.2); and (c) to take into account the considerations regarding the choice of arbitrator(s) if and when Parties fail to reach agreement on this point.
Respectfully submitted for and on behalf of Respondent,
Dr. Christoph Jeloschek Kennedy Van der Laan
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