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: 1 Page 111 Exhibit 4 Case 2:19-cv-04280-SVW-SS Document 11-2 Filed 06/24/19 Page 112 of 241 Page ID #:688 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 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 2 Page 112 Exhibit 4 Case 2:19-cv-04280-SVW-SS Document 11-2 Filed 06/24/19 Page 113 of 241 Page ID #:689 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 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 3 Page 113 Exhibit 4 Case 2:19-cv-04280-SVW-SS Document 11-2 Filed 06/24/19 Page 114 of 241 Page ID #:690 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 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.