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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Hashwani v Jivraj  EWHC 998 (Comm) (23 April 2015)
Cite as:  EWHC 998 (Comm)
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QUEEN'S BENCH DIVISION
B e f o r e :
| SADRUDDIN HASHWANI
|- and -
appeared for the Claimant.
Mr Rhodri Davies QC, instructed by Bermans LLP, subsequently
Bermans (2012) Limited t/a Bermans, appeared for the Defendant.
Hearing dates: 7 and 8 October 2014.
Crown Copyright ©
The Hon Mr Justice Walker:
|A. Introduction and outcome||1|
|A1. A sequel to a Supreme Court decision||1|
|A2. The present claim||8|
|A2.1 The claim as it stood in 2013||8|
|A2.2 The revised claim||13|
|A3. The outcome||18|
|A3.1 Abuse of process: vexing Mr Jivraj with litigation twice||18|
|A3.2 A suggested universal guiding principle: inform the other side||19|
|A3.3 Other grounds on which Mr Jivraj succeeds||22|
|A3.4 Structure of this judgment||23|
|B1. The Community||24|
|B2. The period up to 17 January 1994||28|
|B2.1 Up to and including 30 October 1988||28|
|B2.2 From 31 October 1988 up to and including 16 July 1990||29|
|B2.3 From 17 July 1990 up to, but not including, 17 January 1994||30|
|B3. 17 January 1994: issue of the December 1993 award||31|
|B4. Events from 18 January 1994 onwards||36|
|B4.1 From 18 January 1994 to 19 April 1995 inclusive||36|
|B4.2 From 20 April 1995 to 14 August 1995 inclusive||37|
|B4.3 From 15 August 1995 to 19 February 1996 inclusive||38|
|B4.4 From 20 February 1996 to 16 July 1997 inclusive||39|
|B4.5 From 17 July 1997 to 31 August 1999 inclusive||40|
|B4.6 From 1 September 1999 to 23 October 2000 inclusive||41|
|B4.7 From 24 October 2000 to 31 July 2008 inclusive||42|
|B4.8 From 1 August 2008 to 27 July 2011 inclusive||44|
|B4.9 From 28 July 2011 onwards||45|
|C. Mr Jivraj's strike-out application||46|
|D. Has the arbitration ended?||76|
|D1. Ending the arbitration: Mr Jivraj's contentions||76|
|D2. A final award issued on 17 January 1994||79|
|D3. The period after 17 January 1994||97|
|D3.1 18 January 1994 to 31 May 1995||98|
|D3.2 First fallback: release in 1995||100|
|D3.3 Period from 1 June 1995 to 31 January 1998||103|
|D3.4 Second fallback: correspondence amounting to abandonment||109|
|D3.5 Period from 1 February 1998 to 31 December 2007||117|
|D3.6 Third fallback: ten years of inactivity||119|
|D3.7 January 2008 onwards||120|
|D3.8 Mr Jivraj's remaining fallback positions||122|
|D4. Conclusion: no extant arbitration||128|
|E. Delay on the part of Mr Hashwani||129|
|E1. Delay: introduction||129|
|E2. Delay: Mr Hashwani's suggested knockout blows||131|
|E2.1 Delay: general aspects of the suggested knockout blows||131|
|E2.2 Knockout blow 1: Mr Jivraj's failure to do what Mr Hashwani wanted||132|
|E2.3 Knockout blow 2: PHPI's continued existence||134|
|E3. Delay: analysis by periods||137|
|E3.1 Delay: general aspects of analysis by periods||137|
|E3.2 Delay: 17 January 1994 to mid 2000||139|
|E3.3 Mid 2000 onwards||151|
|E3.4 Delay: attempts to blame Mr Jivraj and Mr Ahamed||157|
|E3.5 Delay: considerations of fairness||158|
|E4. Delay: conclusion||161|
|F. An intention that a vacancy is not to be supplied?||162|
|G. Ability now to resolve disputes fairly?||170|
|H. The position if no appointment is made||181|
|Annex 1A Abbreviations by short forms||1A|
|Annex 1B Abbreviations by long forms||1B|
|Annex 2 History of events||2|
A. Introduction and outcome
A1. A sequel to a Supreme Court decision
All arbitrators shall be respected members of the Ismaili community and holders of high office within the community.
He issued a determination in December 1993, whereafter he had further exchanges with the parties until 1995, when he declared himself defeated.
A2. The present claim
A2.1 The claim as it stood in 2013
A2.2 The revised claim
(1) In 2008 Mr Hashwani made a deliberate decision to deny that the arbitration before Mr Ahamed had been an arbitration at all, claiming that it had only been a conciliation, which had long since come to an end. On that basis Mr Hashwani engaged Mr Jivraj in litigation in which Mr Hashwani maintained the validity of the purported 2008 appointment under article 8 of the JVA. It is an abuse of process for Mr Hashwani now to claim that the 1981 agreement had, long before that litigation, been superseded by the Ahamed arbitration agreement, upon which he now prefers to rely.
(2) The arbitration before Mr Ahamed came to an end many years ago. No new arbitrator can be appointed because the arbitration is no longer live.
(3) Mr Hashwani's application is afflicted by inordinate and inexcusable delay, including years of delay due to a deliberate and conscious decision to bring alternative proceedings.
(4) The terms of Mr Ahamed's appointment in 1990 were personal to him and included, for example, a power to decide as he considered just and equitable and a waiver of the need to give reasons. The terms show that it was not intended that a vacancy would be supplied and, in any event, it would not be appropriate for the Court to confer on another arbitrator the powers granted to Mr Ahamed 24 years ago.
(5) It would not now be fair, just, practicable or proportionate for a tribunal or a court to embark afresh on a resolution of the disputes between the parties as they stood between 1990 and 1994. There could not now be a fair trial of such disputes.
A3. The outcome
A3.1 Abuse of process: vexing Mr Jivraj with litigation twice
A3.2 A suggested universal guiding principle: inform the other side
A3.3 Other grounds on which Mr Jivraj succeeds
A3.4 Structure of this judgment
B1. The Community
 the Community is "close-knit", holding as a tenet that disputes between members are best resolved within the Community.
 there is an ethos of strong encouragement in the Ismaili community for the amicable resolution of disputes arising within the community by mediation, impartial conciliation or arbitration, which is a deeply embedded practice;
 appointments of arbitrators made by His Highness Prince Aga Khan have deep authority and credibility in the Ismaili community;
 dispute resolution embodies fairness and equity to the parties and respects the religious principles and values of the community, applied within the confines of local law;
 the vast majority of disputes are resolved by mediation and conciliation without resort to arbitration;
 spiritual allegiance to His Highness Prince Aga Khan (also known as Hazar Imam) is an integral part of the manner in which an Ismaili will/is to conduct his or her daily affairs, whether in a family or commercial context.
B2. The period up to 17 January 1994
B2.1 Up to and including 30 October 1988
(1) Park Hotels & Properties International Limited ("PHPI") was registered as a limited company in Jersey on 2 August 1984. The parties held equal shares in PHPI, which carried out the joint venture through holdings in other companies managed by Mr Jivraj. These included
(a) Naaz Investments Ltd (Canada), which I shall refer to as "NI Canada"; it held joint venture assets in Canada;
(b) Rushlake Hotels (USA) Inc, which I shall refer to as "Rushlake USA"; it held joint venture assets in the USA;
(c) Rushlake Holdings Ltd, which I shall refer to as "Rushlake Holdings"; it held joint venture assets in England;
(d) Jivji Holdings BV ("Jivji BV"), a Dutch company which owned NI Canada, Rushlake USA, and Rushlake Holdings; and
(e) Jivji Holdings NV ("Jivji NV"), a Netherlands Antilles Company which owned Jivji BV and was itself owned by PHPI.
(2) Entities associated with Mr Jivraj at this time included Naaz Holdings Ltd ("Naaz Holdings").
(3) Entities associated with Mr Hashwani at this time included Arix Holdings BV ("Arix") and an entity known as Hira Trust or Hira Foundation ("Hira").
(4) In June and July 1988 the parties, after deciding to terminate the joint venture, appointed arbitrators under the JVA arbitration agreement, but arrangements for an arbitration did not proceed.
(5) Instead, on 30 October 1988 the parties entered into an agreement ("the Panel Agreement") under which a panel ("the Panel") would "conciliate and arbitrate" between the parties and assist in determining how to terminate the joint venture. The Panel Agreement dealt with arrangements for realisation of joint venture assets in various locations. As regards Canada and the USA, joint venture assets in those countries were to be the subject of offers made on the basis that any consequential tax liabilities and tax credits would be attributable to the parties on a 50/50 basis.
B2.2 From 31 October 1988 up to and including 16 July 1990
(1) Bids by Mr Hashwani for the Canada and USA joint venture assets were successful. In each case the bid comprised an offer made to Jivji BV. The amount of the offer was described as the Specified Net Asset Value ("SNAV") of the relevant holding company. In Canada this was NI Canada. In the USA it was Rushlake USA. In each case the purchaser was to pay tax arising by reason of the purchase. In recognition of this, under clause 4(c) of the offer, the SNAV would be determined after deducting from the consolidated net asset value the tax that would be chargeable upon a disposal on 31 October 1988 of relevant assets for the value shown in completion accounts.
(2) Auditors of the relevant companies advised in 1989 that tax liabilities would be lower if, rather than Jivji BV selling the relevant holding company, Jivji BV were restructured so that its only assets were the two holding companies and Jivji BV, or a company which owned it, were transferred to Mr Hashwani or his nominee ("a higher corporate tier acquisition").
(3) After Mr Hashwani's offers succeeded, Mr Hashwani took control of NI Canada and Rushlake USA. Payments were made by him to Mr Jivraj. The evidence includes calculations of how some of these payments were computed, but does not otherwise disclose any written record of the terms upon which these payments were made. In correspondence some years later Mr Hashwani advanced an assertion ("the abeyance assertion") that the precise structure of the transactions bringing about such control was left in abeyance to be determined at a later date. Mr Jivraj, however, contended that in accordance with the relevant offers in April 1989 completion took place of transactions under which Jivji BV sold the entire issued share capital of NI Canada and Rushlake USA.
(4) The Panel recorded in a letter dated 6 February 1990 that they, as conciliators, had made determinations ("the February 1990 determinations") as set out in a schedule contained in the letter. Paragraph 10 of the schedule was headed "Partnership Capital Accounts", and comprised a determination ("the February 1990 equalization determination") which included the following:
… the balances of the capital accounts of the parties with PHPI as at 31 December 1988 be equalized and that appropriate payments be made to or by the parties by or to PHPI to equalize such accounts as at 31 December 1988….. Stoy Hayward are to be requested by Jivraj to calculate the amounts ….
(5) After gaining control of Rushlake USA, Mr Hashwani, asserting that there had been improper dealings, began proceedings on 4 April 1990 in Florida ("the Florida litigation").
(6) The Aga Khan directed that the Florida litigation should be withdrawn and that the parties should resolve all their disputes before a sole arbitrator in accordance with written pre-conditions ("the Pre-Conditions"). In May 1990 both Mr Hashwani and Mr Jivraj agreed to the Pre-Conditions. The Pre-Conditions did not specify the identity of the sole arbitrator.
(7) In June/July 1990 the Aga Khan identified Mr Zaher Ahamed to act as the parties' sole arbitrator. Mr Ahamed acted without fee and was reimbursed for expenses only. On 14 July 1990 a written agreement was made between Mr Hashwani and Mr Jivraj (described as the "Investors" and Mr Ahamed described as the "Arbitrator"). I shall refer to this agreement as "the Ahamed arbitration agreement", and to the arbitration conducted pursuant to the agreement as "the Ahamed arbitration".
(8) Mr Hashwani then procured Rushlake USA to withdraw the Florida litigation.
(9) The Ahamed arbitration agreement terminated the appointment of the panel, subject to qualifications which are not material for present purposes.
(10) Initial directions were given by Mr Ahamed, following which he met Mr Hashwani and Mr Jivraj in London on 14 July 1990. On 16 July 1990 he gave further directions ("the July 1990 directions") comprising a covering letter and two appendices.
(11) The July 1990 directions, at Appendix B, disallowed one of Mr Jivraj's claims and two of Mr Hashwani's claims. The covering letter added that a request by Mr Jivraj "that the Arbitrator produce final completion accounts for the USA and Canada" was "a matter for the company to produce based on the decisions made by the Panel", and that finalisation of outstanding PHPI accounts with the Jersey authorities was "a matter for the company to deal with".
(12) The remaining claims were described as "the combined admitted claims" and were set out in Appendix A. Submissions on these claims were to be provided by 30 July 1990. Section I of Appendix A concerned matters arising from the February 1990 determinations. They included, as part of item I.3, the finalisation of "Partnership capital accounts". Section II concerned "Related Parties Transactions", and Section III concerned "Transactions involving Mr Mohamed Jivraj". Section IV was headed "Other Issues". It included claims by Mr Jivraj described as
[IV.1] specific indemnities from Hashwani for the future liabilities pertaining to the joint venture that might accrue on him in his capacity as the managing partner
[IV.7] Dissolution of the various Joint Venture Companies.
(13) Mr Hashwani commented in paragraph 38 of Hashwani 2013 that the issue of the dissolution of the remaining joint venture companies (item [IV.7] above):
would involve resolution of the structure by which I was acquiring Mr Jivraj's interests which had been held in abeyance.
B2.3 From 17 July 1990 up to, but not including, 17 January 1994
(1) A letter dated 20 November 1993 from Mr Ahamed to the parties ("the November 1993 alternatives letter") dealt with the question whether Mr Hashwani should be allowed to acquire the entire issued share capital of Jivji BV. Mr Ahamed identified three alternative ways of dealing with this issue, and asked the parties to let him know by 30 November 1993 how they would wish to proceed.
(2) An award ("the December 1993 award") was prepared by Mr Ahamed on 27 December 1993. However it was not issued until 17 January 1994, and accordingly I deal with it in section B3 below.
(3) An exchange of correspondence took place following the November 1993 alternatives letter. On 4 January 1994 Mr Ahamed wrote a further letter ("the January 1994 reflection request letter") to the parties. After referring to the November 1993 alternatives letter and the subsequent exchange of correspondence it stated, among other things:
 It has been clear from the very outset that the parties understood all the implications of all the transactions and the manner in which these were structured. They submitted their bids after making evaluation of all the circumstances and conditions. There is thus no warrant, in my view, for pleading that "… if the possibility of one party taking over Jivji Holdings BV, and thus avoiding the tax liability had been evident at the time, Mr Jivraj's bid price could well have been different".
 It was, is and will continue to remain the responsibility of the parties to consider and ensure compliance with fiscal and other legal requirements. In the present case, the issue has to be looked at from the perspective of the joint venture partnership. Jivji Holding NV and Jivji BV are two joint venture companies. Upon completion of the arbitration and in due course, these two companies would qualify to be dissolved, wound-up or liquidated as may be appropriate. One joint venture partner has now expressed interest in acquiring one or the other (or both companies).
 The main issue, therefore, is: How would the overall interest of the parties be best served? The dissolution route has costs and other consequences. Once the liabilities of the companies have been paid or compromised, they will effectively be shells and will, therefore, have a limited realistic value relative to the alternative of winding up.
 I would have found the direct negotiation procedure suggested by Nurdinbhai acceptable but, with respect, I find his emphasis on the tax angle and, approach to "the question of what would be a fair price", not to be well founded.
 I would request both of you to reflect further on this issue. In order to facilitate this, I am sending herewith a list of the correspondence exchanged between us.
 In the meantime, I have no reason to delay the finalisation and publication of the award. And I intend to do so on January 17 1994. May I, therefore, request the parties to confirm to me by return that you will be available to meet me in London on that day. Upon receipt of confirmation, we could then decide upon a mutually convenient venue and time.
B3. 17 January 1994: issue of the December 1993 award
1. By your agreement dated (14 July 1990) you appointed me upon the terms set out in that agreement (the "Agreement") in connection with certain disputes.
2. Pursuant to the Agreement I requested both parties to make submissions on all matters outstanding and I have received and considered the written and oral submissions of both parties on the issues referred to in the Schedule and I have determined as set out in the Schedule.
3. Such determinations take effect only as between me and yourselves. It is for you to effect the implementation of these determinations in a manner consistent with the decisions and in accordance with all applicable legal requirements. In making my decisions, I have not considered any impact (whether in respect of taxation or any other matters) on either of you or any other person of such decisions and you are to recognise that such matters are for each of you to consider and deal with and not me.
4. The Schedule is a summary only and should not be regarded as an exhaustive statement. If you require any guidance or clarification on the meaning or the consequences of the Schedule, you may make submissions in writing to me. As provided in the agreement my own interpretation of the Schedule and my understanding of its intention will be final and binding on each of you.
5. This letter and the determinations set out in it are made on the basis of the terms of the Agreement.
6. Issues arising from the Florida litigation
I have considered the evidence submitted and the submissions made to me by both parties. I have determined that the commencement and timing of this action was unfortunate. I have determined that Hashwani has no claim against Jivraj on this issue. I have further determined to disallow Jivraj's claim for apology and damages from Hashwani arising from the same litigation.
7. Dissolution of the joint venture companies
I have considered the evidence submitted to me and have determined that, as regards the companies within the joint venture (as set out in the attached appendix and all other joint venture companies, if appropriate) whose shares have not been purchased by one or the other of the parties, Jivraj in his capacity as managing director should arrange for:
(i) all the liabilities of these companies to be paid or compromised out of the assets of the companies;
(ii) all the statutory and other related obligations of these companies to be met;
(iii) the remaining surplus assets to be distributed to the shareholders with the intention that all surplus assets, after the payment of liabilities, are distributed immediately to PHPI;
(iv) these companies to be dissolved, wound up or liquidated as may be appropriate.
8. Amounts owed to Naseem Investments and amounts owed to Jivraj by Rushlake USA (intercompany indebtedness)
I have determined that these items should be taken into consideration in the Shareholders Funds Calculations and I have agreed that Jivraj be asked to instruct Stoy Hayward to verify the appropriate amounts and to include these in the final Shareholders Funds Calculations.
15. Accounts of PHPI and its subsidiaries
(a) I have determined that the balances of the capital accounts of the parties with PHPI as at 31 December 1992 be equalised and that appropriate payments be made to or by the parties by or to PHPI to equalise such accounts as at 31 December 1992. Equalisation payments to be made by 31 May 1994.
(b) When calculating the balances on the capital accounts, the exchange rates to be used, and the interest rates to be used, should be on the same basis determined by the previous Arbitration Panel; namely:
Interest is to be credited on the capital accounts of both parties by PHPI for the relevant period at the rate of Prime plus 1% per annum on a simple interest basis, on the same basis as used by Stoy Hayward in the Shareholders' Funds calculation booklet of October 1989, prepared by them on the instruction of the parties.
The exchange rates to be used are to be the same as the floating exchange rates used by Stoy Hayward in their interest on Shareholders' Funds calculations booklet of October 1989 prepared by them on the instructions of the parties.
(c) I have further determined as follows:
(i) Jivraj to instruct Stoy Hayward to prepare the accounts, incorporating the effect of the above determinations and to distribute the accounts of PHPI and its subsidiaries (including those relating to Rushlake Holdings Ltd) for the years 1985 to 21 December 1992. The Shareholder Funds balance to be prepared in accordance with the guidance in paragraph (15(b)) above. Stoy Hayward to be instructed by Jivraj to prepare the accounts by 28 February 1994.
(ii) In arriving at the capital account balances interest should be taken into account. Stoy Hayward are to be requested by Jivraj to calculate the amounts by 28 February 1994.
(iii) Both parties are to give their final comments on the capital account balances and on the final accounts (including Rushlake Holdings Ltd) by 15 March 1994.
(iv) Stoy Hayward to review and incorporate as appropriate, the comments of the two parties and distribute the accounts by 15 April 1994. Stoy Hayward to incorporate any relevant transactions which have taken place subsequent to 31 December 1992.
(v) Any review of the Stoy Hayward final accounts and calculations of the Shareholders Funds balances to be carried out by 30 April 1994.
(vi) Jivraj to instruct Stoy Hayward to prepare final audited accounts for all the companies, including Rushlake Holdings Ltd, for all the years from 1985 to 31 December 1992.
(vii) Equalisation payments to be made by 31 May 1994. (see paragraph (15(a) above).
(viii) As stated in paragraph 7 above, Jivraj to arrange for the transfer upwards (ultimately to PHPI) of all the surplus arising upon dissolution or winding up of the companies within the joint venture whose shares have not been purchased by either of the parties and that PHPI's final net assets, after discharging all its liabilities and obligations, and after allowing for dissolution expenses not exceeding £50,000 to be set aside, should be distributed to or paid by the shareholders (as per the shareholder funds balances paragraph 15(a) and (b) and be reflected in the partnership capital account). Thereafter Jivraj to undertake, as soon as possible, to have PHPI formally dissolved, wound up or liquidated. Any subsequent surplus remaining out of the sum of £50,000 for expenses should be distributed equally and promptly upon PHPI's dissolution to both parties.
B4. Events from 18 January 1994 onwards
B4.1 From 18 January 1994 to 19 April 1995 inclusive
(1) The February 1994 tax liability and timetable letter, sent by Mr Ahamed to the parties on 3 February 1994, referred to the determinations in the December 1993 award, stating that it was for the parties "to effect the implementation of these determinations subject to and in accordance with all applicable legal, fiscal and other relevant requirements."
(2) The March 1994 Jivraj letter, sent by Mr Jivraj to Mr Ahamed on 10 March 1994 stated in paragraph  that Mr Jivraj had decided to hand over both Jivji BV and Jivji NV to Mr Hashwani without any compensation, but added in paragraph  that the only remaining subsidiary of Jivji BV was Rushlake Holdings, which would not be transferred to Mr Hashwani.
(3) The March 1994 Hashwani fax sent on 17 March to Mr Ahamed repeated the abeyance assertion, maintaining that "throughout the duration of the arbitration process" Jivji had continued to own 100% of the share capital of Rushlake USA and NI Canada.
(4) The April 1994 clarification letter sent by Mr Ahamed to the parties on 7 April said that the matters referred to by Mr Hashwani had not been kept in abeyance, and that both parties were well aware that the original bidding process in relation to Rushlake USA and NI Canada "was indeed completed and did effect a sale of those two companies." It added that the "present arrangement" concerning Jivji NV and Jivji BV had been arrived at between the parties "through a negotiated settlement", and it was for them jointly to ensure compliance "with any tax or any other legal obligations arising in connection with this transaction". Mr Ahamed asked to be advised "of the timing you propose regarding the transfer of the two Jivji companies, so that the arbitration could be formally concluded."
(5) The November 1994 expectation letter, sent to the parties by Mr Ahamed on 19 November referred to correspondence that had taken place since a meeting in Nairobi on 1 November. Mr Ahamed stressed that this meeting was never intended to be a hearing, adding "You had asked me to join in discussions over the future of Jivji and, reluctantly, even more so now in the light of your letters, I agreed to do so." In accordance with the April 1994 clarification letter, he stated that "to the extent that [Mr Hashwani's] dealing in America and Canada may have created problems for organising the completion and filing of tax returns for the Jivji companies, you jointly must resolve the issues and deal with the compliance obligations." In paragraph  he said that receipt of the final accounts from Stoy Hayward would permit calculations of who was to receive what in accordance with what he had determined, and that he expected that the parties would pay the appropriate amount. Paragraph  requested both parties to execute a deed of arbitrator's release which he would be sending, and noted that he was arranging to send accounts in connection with the arbitration. It concluded, "As far as I am concerned, this will settle all outstanding matters before me."
(6) The April 1995 defeat letter was written by Mr Ahamed to the parties on 19 April 1995. Paragraph  stated that Mr Ahamed had "proceeded on the assumption that the parties were intending to settle the equalisation payment as a follow up of the finalisation of the Jivji companies transaction." Paragraph  stated that this appeared not to have been done, and that in that regard "I must express my profound disappointment to both the parties." Referring to the delay that had now taken place he said "I have exhausted all my patience, tact, power of persuasion and skill." In paragraph  he said this:
 Having done my best, I am driven to the conclusion that the parties for reasons best known to themselves, either do not wish the arbitration to be brought to a satisfactory conclusion, or for it to be concluded only on terms acceptable to themselves. I regret the mandate entrusted to me does not allow this latter to happen. I am mandated to complete my assignment or else to report that I have failed to resolve the dispute. I must thus finally admit defeat.
B4.2 From 20 April 1995 to 14 August 1995 inclusive
(1) While there is no evidence as to what happened immediately after the April 1995 defeat letter, on 6 June 1995 a memorandum of agreement ("the June 1995 MoA") was signed by Mr Jivraj and Mr Hashwani. Under the June 1995 MoA the parties agreed, among other things:
(a) by clause 1, that they would procure that specified transfers would be made by Jivji NV to PHPI, and that specified other arrangements affecting Jivji NV and Jivji BV would be made;
(b) by clause 2, that they would procure the transfer by PHPI of the entire issued share capital of Jivji NV to Mr Hashwani or such other person as he might direct;
(c) by clause 6, that the June 1995 MoA was to be governed by and construed in accordance with English law; and
(d) also by clause 6, that the parties irrevocably submitted to the non-exclusive jurisdiction of the English courts in relation to all matters, claims and disputes arising out of the June 1995 MoA.
(2) The July 1995 BDO draft report, in section IV headed "Shareholders' Funds" identified a balance due from Mr Jivraj which was greater than that due from Mr Hashwani. However section V, headed "Taxation" described what were asserted to be actual or potential liabilities of Jivji BV to pay tax in the USA and Canada as a result of the sales of Rushlake USA and NI Canada. The responsibility for discharging those liabilities was said to lie with Mr Hashwani, with the consequence that the balance due from him to the joint venture was increased so as to become greater than the balance due from Mr Jivraj.
(3) The August 1995 disengagement letter, written by Mr Hashwani to Mr Ahamed on 7 August 1995, disputed what had been said in section V of the July 1995 BDO draft report. The letter included a request to Mr Ahamed in these terms:
3. The Shareholders Funds calculations show that at 31st December 1993 Nurdinbhai's drawings exceeded mine by $2,732,040. To equalise this imbalance, in accordance with your Award, please immediately and without allowing further time to elapse, direct Nurdinbhai to make a payment to me of one-half of this amount. ie. $1,366,020.
(4) The August 1995 recommendation letter, written by Mr Ahamed to the parties on 14 August 1995, did not give the direction sought by Mr Hashwani. Instead it referred to the April 1995 defeat letter, and said that the parties "should now jointly attend to the implementation of equalisation payments." At paragraph  it added a recommendation that both parties "arrange to meet at the earliest opportunity and settle the issue of equalisation payment among yourselves in accordance with your recently concluded Memorandum of Agreement and any other arrangements you may have arrived at."
B4.3 From 15 August 1995 to 19 February 1996 inclusive
(1) The September 1995 expectation letter, written by Mr Ahamed to the parties on 22 September 1995, stated in paragraph  that the purchase of NI Canada and Rushlake USA had been on the basis that the purchaser would be responsible for the tax liability thus arising, that the amounts each had offered were lower as a result to reflect this, and that as tax was payable to the tax authorities and not by one party to another, the Shareholders' Funds calculation should not include any potential tax liability payable to the tax authorities. Paragraph  stated that accordingly it appeared that there was an imbalance of US$1,366,020 in favour of Mr Hashwani, which should be paid by Mr Jivraj promptly. Mr Ahamed added that in the absence of persuasive representation from Mr Jivraj within ten days, he expected Mr Jivraj to clear the imbalance plus interest to date of payment by 2 October 1995.
(2) The October 1995 'you must convince me' letter was faxed by Mr Ahamed to Mr Jivraj on 14 October 1995, in ignorance of a letter from Mr Jivraj of 13 October 1995. The October 1995 'you must convince me' letter said that the matter "must now be settled forthwith and either payment must be made or you must convince me to the contrary… by October 19, 1995."
(3) The October 1995 personal points fax, sent by Mr Jivraj in response on 16 October 1995, attached the October 1995 formal response letter, and took the opportunity "to make several points to you personally". In those points Mr Jivraj said, among other things:
(iii) … I am confused as to why having finalized your arbitration some months ago, leaving the implementation aspects to the parties according to your firm instructions (carefully distancing yourself from the Jivji tax issues) that you now presume to reopen the issue.
(4) In the October 1995 'should make ... payment now' letter, faxed by Mr Ahamed to both parties on 23 October 1995, he described his understanding as being that the figures in section IV of the BDO July 1995 draft report reflected "the position on the shareholders' funds post the disposal of the Jivji companies…". He said that it followed that "the equalization payment referred to in my previous letter is the payment required to be made between the parties in order to equalize their shareholders' funds position". In paragraph , Mr Ahamed said that assuming that this was the case, Mr Jivraj "should make the equalization payment now without further delay."
(5) The December 1995 PHPI winding up letter was faxed by Mr Ahamed to both parties on 14 December 1995 in response to correspondence from them, including Mr Hashwani's December 1995 freedom request letter. In the December 1995 PHPI winding up letter Mr Ahamed asserted in paragraph  that the price and terms upon which "the Jivji companies were disposed of" was something he had left to them, and that as arbitrator his only concern was "that whatever terms were agreed are properly reflected in PHPI's accounts and properly taken into account for the purpose of determining PHPI's assets and liabilities." In paragraph  he said that the shareholders' funds statements should not reflect matters which did not represent part of the position between a shareholder and the joint venture companies. In paragraph  he asked Mr Jivraj to arrange for the immediate winding up of PHPI accordingly. In paragraph  he stated:
 I understand this can be substantially completed within three months. In order to enable equalisation to be effected by reference to the figures up to the time of winding up, I am willing to suspend the requirement for equalisation at this stage; but if substantial progress has not been made by the end of that period, I shall revert to the requirement for an interim equalisation payment.
(6) The January 1996 'cannot get involved' fax was sent by Mr Ahamed to the parties on 19 January 1996 in response to requests by Mr Hashwani for five specific orders. Mr Ahamed's response was that he had already pointed out to the parties that he could not get involved in implementation of the December 1993 award and that he did not intend to do so.
(7) The February 1996 PHPI and clarification fax, sent by Mr Ahamed to Mr Jivraj on 19 February 1996, referred to differences in understanding as to the determination of the Panel. It added that "the sale of Jivji" was agreed between the parties "on such terms as they thought appropriate".
B4.4 From 20 February 1996 to 16 July 1997 inclusive
(1) The July 1996 implementation for the parties fax was sent by Mr Ahamed on 19 July 1996 to both parties. It followed correspondence from them on whether Mr Jivraj was right to say that PHPI could not be dissolved until tax on the sales of the US and Canadian assets was properly dealt with. Mr Ahamed recorded that he had previously pointed out that "implementation of determinations made" was a matter for the parties to effect. He urged both parties "to resolve the outstanding details between you quickly and constructively."
(2) The October 1996 proposed indemnity letter was written by Mr Ahamed to the parties on 1 October 1996. It concerned a proposal under which Mr Jivraj would pay the equalisation amount after being given an indemnity by Mr Hashwani. Mr Ahamed said that this was an implementation matter, and that he therefore did not propose to review or comment upon the terms of any indemnity.
(3) The October 1996 request for freedom letter was written on 22 October 1996 by Mr Hashwani to Mr Ahamed. Mr Hashwani complained about Mr Ahamed's failure to take action to correct "a blatant case of injustice". If equalisation of capital accounts could not be resolved by the end of the month, Mr Hashwani requested "a certificate to confirm that the Community was unable to resolve the dispute by conciliation/arbitration and that I am free to pursue this matter in a court of law."
(4) Mr Jivraj's October 1996 'I cannot stop you' fax was sent by Mr Jivraj to Mr Hashwani on 30 October 1996 and copied to Mr Ahamed. It said, among other things, that if Mr Hashwani were to commence litigation, "then I cannot stop you".
(5) The November 1996 guidance and pressure fax was sent by Mr Hashwani to Mr Ahamed on 6 November 1996. It said that Mr Hashwani could not see "any options other than to request the Community to give me a free hand to recover the money [Mr Jivraj] owed me through the courts". However it then requested that Mr Ahamed "please take guidance from Hazar Imam and put pressure on this man to pay me my funds". The fax continued that he [Mr Hashwani] was "ready and willing to provide a reasonable indemnity to facilitate a resolution of this matter", adding that he sincerely believed "that this matter can be settled out of court, only with Hazar Imam's intervention and guidance, and your assistance will be imperative in this regard."
(6) The November 1996 facilitation fax was sent by Mr Ahamed to both parties on 12 November 1996. In this fax Mr Ahamed proposed a procedure to be implemented by the parties "with a view to agreeing a mutually acceptable form of indemnity". He concluded by commenting that he had endeavoured to work within the framework of the Ahamed arbitration agreement, and that he did not think "that there is warrant for any suggestion that I should look outside that agreement in order to bring this matter to finality."
(7) The July 1997 arbitration reference letter was written on 8 July 1997 by Mr Ahamed after having received further communications from the parties. Noting that he had identified a proposed third party to settle the terms of the indemnity, he proposed that a letter should be written by him to that individual "on behalf of the arbitration and not on behalf of the parties". Mr Ahamed sought confirmations from the parties in relation to three aspects of the procedure.
(8) The July 1997 top priority fax was sent by Mr Hashwani to Mr Ahamed on 16 July 1997. There is no indication that it was copied to Mr Jivraj. It did not give the confirmations that Mr Ahamed had requested. It asserted that Mr Jivraj should be immediately ordered to pay the appropriate amount into PHPI's bank account to equalise the partners' capital account, and that this matter should "be given top priority given that the implementation of the award is being unduly prolonged".
B4.5 From 17 July 1997 to 31 August 1999 inclusive
(1) The evidence does not disclose any reply by Mr Ahamed to the July 1997 top priority fax. Nor does the evidence disclose any reply by Mr Jivraj (if indeed he received a copy of it). Mr Hashwani states that on 20 August 1997 he wrote to an important Community leader, Dr Sachedina, explaining that Mr Ahamed had allowed the matter to drag on and that basic principles of justice had been violated, and asking Dr Sachedina to consult the Community leadership again about the matter.
(2) The January 1998 deadline letter was written by Mr Hashwani to Mr Ahamed on 1 January 1998. There is no indication that it was copied to Mr Jivraj. It said that Mr Ahamed had been chosen as the Community arbitrator to resolve the dispute expeditiously, but that this had not happened. He repeated his request "to consult the authority which appointed you, for guidance to finally settle this dispute, by ordering [Mr Jivraj] to pay my money over to me immediately." Alternatively, he asked Mr Ahamed to "obtain permission from the authority to allow me to take this matter to a court of law." In paragraph  Mr Hashwani said that if he did not hear from Mr Ahamed by 15 January 1998, he would "approach the authority directly and request intervention to settle this matter once and for all."
(3) The evidence does not disclose any reply by Mr Ahamed to the January 1998 deadline letter. Nor does the evidence disclose any reply by Mr Jivraj (if indeed he received a copy of it). Mr Hashwani states that he was given guidance from the Community leadership to try again to resolve matters with Mr Jivraj. Although Mr Jivraj wrote agreeing with a proposal by Mr Hashwani to attempt to start a new relationship, a meeting between them was unsuccessful.
(4) The October 1998 end to misery letter was written by Mr Hashwani to Dr Sachedina on 1 October 1998. It gave an account of the meeting which had taken place between the parties, and accused Mr Jivraj's side of "attempting, by hook or crook, to exploit the shortcomings in the manner in which the bidding process was managed (more than ten years ago)." Mr Hashwani asked Dr Sachedina:
Please bring an end to this misery. If you feel this is not going to be possible, I would request to be released by Imam.
B4.6 From 1 September 1999 to 23 October 2000 inclusive
(1) On 1 September 1999 a claim by Naaz Holdings that Mr Hashwani should "refund the amount of money that you deducted from the sale proceeds on completion for taxes" was the subject of the September 1999 Naaz Holdings PHPI letter. The claim was rejected by Mr Hashwani in the September 1999 'kindly search your soul' letter. GSC Solicitors ("GSC") on behalf of Naaz Holdings reiterated the claim in the June 2000 GSC $4m demand letter. When the claim was rejected by Hira's Swiss lawyer, on 5 October 2000 GSC sent him the October 2000 'you will have no objection' letter. It was copied to Mr Hashwani. It concluded in paragraph  by demanding a sum of US$4m together with interest "by return", and in paragraph  by saying that all their client's rights were reserved. Those concluding paragraphs were preceded by paragraph , which included the following:
 It is noteworthy that you appear to refute our client's allegations and regard their demands as being unmeritorious without providing any explanation or reasoning whatsoever. In that case, you will have no objection to our client providing full details of the transactions and the joint venture to the Pakistani authorities who have requested details of Sadruddin Hashwani's dealings with our client. …
(2) The October 2000 'outrageous professional conduct' letter was sent to GSC on 18 October 2000 by Zaiwallas on behalf of Mr Hashwani. It accused GSC of outrageous professional conduct, referring to an "undisguised threat" to provide "full details of the transactions and the joint venture to the Pakistani authorities". The October 2000 'outrageous professional conduct' letter stated that no monies were owed by either Hira or Mr Hashwani to GSC's clients, accused GSC and its clients of the commission of various criminal offences, and reminded GSC of "your clients' duty of confidentiality under the English Arbitration Law which duty requires your clients to maintain strict confidentiality. …"
(3) The October 2000 'will consider the matter further' fax was sent by GSC to Zaiwallas on 20 October 2000. It refuted the suggestion that there had been criminal conduct. At paragraph , it stated:
 As for the confidentiality issues, the confidentiality obligation is not absolute. Furthermore, we would point out that we asked whether there was an objection to the disclosure to the tax authorities and we have now received your client's answer. If the authorities press our client for the disclosure of information, our client will consider the matter further and will, of course, bear its obligations under the arbitration process in mind.
(4) Naaz Holding's claim was then the subject of a further letter from Zaiwallas on 20 October 2000 along with a reply from GSC on 23 October 2000.
B4.7 From 24 October 2000 to 31 July 2008 inclusive
(1) Mr Hashwani gave an account in which he described his reaction to GSC's October 2000 'you will have no objection' letter. That letter, he said, led him to feel that for the duration of the military government in Pakistan he could not pursue further steps for the time being to recover the balance of the capital account which he considered to be due to him.
(2) On 5 June 2001 Mr Hashwani nevertheless wrote to Dr Sachedina asking for his help and advice to get Mr Jivraj to repay the balance of the capital account.
(3) On 1 April 2002 a letter ("the April 2002 closure of investigations letter") was signed by Mr T M Ghumman, Director General of the Financial Crimes Investigating Wing of the National Accountability Bureau ("NAB") of Pakistan. It stated:
Subject: Closure of Investigations Against Mr Sadruddin Hashwani And Hashoo Group of Companies
Investigations against Mr Sadruddin Hashwani and the Hashoo Group of Companies was ordered by the Ehtisab Bureau. On coming into force of the National Accountability Bureau (NAB) Ordinance 1999, the said investigations were carried out by NAB. No evidence regarding the commission of any offence under the NAB Ordinance 1999 was found against either Mr Sadruddin Hashwani or the Hashoo Group of Companies and as such the investigations are formally closed.
This letter is issued with the approval of Chairman National Accountability Bureau.
(4) Mr Hashwani said that there came a time when the military government in Pakistan was dissolved, and that he felt that he could pursue the matter again. However, he said, he still felt obliged to go back to Mr Ahamed, if he was willing to continue to act.
(5) Evidence on behalf of Mr Hashwani gave accounts which described contact in 2008 between Zaiwallas and Mr Ahamed, along with contact between Mr Hashwani himself and Mr Ahamed. Among other things, Mr Zaiwalla said in Zaiwalla 2014 that the first thing his firm did upon being reinstructed was to contact Mr Ahamed and request him to finish the arbitration by producing a final monetary award. However, Mr Ahamed told Mr Zaiwalla's firm that he did not want to get involved any further. Mr Zaiwalla added that while arrangements were made for him to travel with counsel to New York to meet Mr Ahamed, Mr Zaiwalla was then told by Mr Hashwani that he had spoken with Mr Ahamed and that Mr Ahamed was not prepared to meet them. It was said by Mr Zaiwalla that at this stage Mr Hashwani did not consider it appropriate to apply to the court for the removal of Mr Ahamed, as Mr Ahamed had been appointed at the personal initiative of the Aga Khan, and seeking his removal might be seen as a slight.
 The Joint Venture dated 29th January 1981 was operated through Park Hotels & Properties International Limited of Jersey ("PHPI"). Sometime in the course of the Joint Venture it was decided to terminate the Joint Venture which meant that the Joint Venture had to be wound up and a distribution of any surplus arising upon the Joint Venture would have to be made. This requires the settling of the partnership Joint Venture accounts and the making of equalisation payment thereafter to the party entitled to such payment.
 Despite several attempts by Conciliators and Mediators at the instance of His Excellency the Aga Khan, the final Joint Venture accounts has remained unsettled and it is high time that these accounts are finally settled. As you would be aware the Joint Venture being in the nature of a partnership, the principal of uberrimae fidae (utmost good faith) applies and the general limitation would not begin to run until the accounts are settled between the partners.
 The last attempt to settle these accounts was made at the instance of His Excellency Aga Khan by Mr Zaher Ahamed, a Chartered Accountant in Nairobi, Kenya. Mr Ahamed assumed the role of a Conciliator and met parties separately. He recommended by his letter of 27th December  a route map for parties to follow in order to settle the Joint Venture account.
 Unfortunately, despite attempts by our client for several years to persuade you to follow the route map suggested for this purpose by Mr Ahamed, you have blocked, one way or another, the settlement of the accounts to take place. According to our client if the route map had been followed by you then on an equalisation of the accounting position of the parties in the Joint Venture you had to pay US$1,412,494.
 The expectation of Mr Ahamed upon the parties following his route map was that it would result in equalisation payments being made by 31st May 1994. This unfortunately could not take place because of the obstructive attitude shown by you to finalise the partnership accounts.
 The Joint Venture agreement by Article 8 provides for English Arbitration and further provides that the arbitration should take place in London. The act which would govern the arbitration in this case would be the English Arbitration Act 1979 which was in force on the date of signing of the Joint Venture agreement.
 Our client for the purpose of settling the accounts is prepared to accept the route map set out by Mr Zaher Ahamed in his letter dated 27th December 1993. Accordingly, our client is of the view that on a settlement of account of the partnership Joint Venture account, he would have been due US$1,412,494 as on 31st May 1994 which he now claims from you. In addition, our client is due interest compounded at 8% per annum on a three monthly rest basis. Our client therefore anticipates that his total claim against you on a settlement of account by the arbitrators would be in the region of US$4,403,817.
B4.8 From 1 August 2008 to 27 July 2011 inclusive
(1) A fax dated 8 August 2008 from Hill Dickinson stated that the matters sought to be raised for the purposes of the 2008 purported appointment were matters which had previously been referred to arbitration, and in relation to which Mr Ahamed had issued the December 1993 award. They put on record that Mr Jivraj objected to Mr Hashwani's attempt to seek to re-arbitrate matters that had already been arbitrated upon. They added in a fax sent on 13 August 2008 that the award was a final award which Mr Hashwani could have sought to enforce or could have asked the court to adjudicate upon.
(2) A fax dated 14 August 2008 from Zaiwallas included the following:
(a) In paragraph  they said that Mr Ahamed could not have acted as an arbitrator because he would have known that an arbitrator under English law would not be permitted to meet one party without the presence of the other.
(b) Paragraph  also included an assertion that the JVA arbitration agreement had never come to an end because disputes under the JVA had never been referred to arbitration under the JVA arbitration agreement
(c) In paragraph  they said that the procedure before Mr Ahamed was an attempt "to find a route map to settle the account through the intervention of … the Aga Khan."
(d) Paragraph  referred to events "after Mr Ahamed had provided the route map."
(e) Paragraph  invited Mr Jivraj to propose an alternative name to that of Sir Anthony Colman as sole arbitrator.
(f) Paragraph  said that Mr Hashwani was prepared to agree that Mr Jivraj should have 60 days from receipt of the letter of 31 July 2008 in which to nominate his arbitrator.
(3) In a letter dated 4 September 2008 Zaiwallas, in addition to the assertion concerning invalidity by reason of religious discrimination in violation of the Human Rights Act made in the letter of 31 July 2008, put forward an additional ground for saying that the JVA qualification requirement was "unworkable and void under public policy for English arbitrations". In this regard reference was made to Mr Ahamed's April 1995 defeat letter. It was said to be apparent from this letter that Community custom required a Community arbitrator to report from time to time to the Aga Khan, something which would breach the confidentiality requirement which Zaiwallas asserted to be an essential element for arbitration under English law.
(4) On 3 October 2008 Mr Jivraj issued the October 2008 claim under section 72 of the Arbitration Act 1996 seeking a declaration that the nomination of Sir Anthony Colman as arbitrator was not valid, and consequential relief. The claim was supported by Berkson 2008, made the preceding day. That statement, among other things:
(a) noted in paragraph 11 that Mr Ahamed had been explicitly appointed as an arbitrator;
(b) stated in paragraph 12 that Mr Jivraj did not know whether the deed of arbitrator's release sent on 26 November 1994 had been executed, and added:
Nonetheless, and although he has had occasional communications with the parties since, Mr Ahamed has treated himself as having completed his task by the end of 1994.
(c) referred in paragraphs 22 to 24 to Zaiwallas' reliance, in their letter of 4 September 2008, upon the April 1995 defeat letter as showing that an arbitrator from the Ismaili Community is required under the Community custom to report from time to time to the religious head of the Community. In that regard Mr Berkson commented that there was nothing to suggest that Mr Ahamed was reporting to anybody other than the parties themselves, to whom he had addressed his letter. In addition, Mr Berkson noted that Mr Ahamed's patience had extended to further correspondence with the parties.
(5) After further correspondence between the parties, Mr Hashwani on 13 November 2008 issued the November 2008 claim seeking an order under section 18(2) of the 1996 Act. The claim was that, Mr Jivraj having failed to appoint his own arbitrator in response to Mr Hashwani's appointment of Sir Anthony Colman, the court should appoint Sir Anthony Colman as sole arbitrator. Zaiwalla 2008, made the following day, was a witness statement made by Mr Zaiwalla both in response to Mr Jivraj's October 2008 claim and in support of Mr Hashwani's November 2008 claim. In paragraph 12 of Zaiwalla 2008 Mr Zaiwalla said this:
… without the need to consider whether Mr Ahamed… was or was not acting as a sole arbitrator or a sole facilitator, the remaining issues over liabilities as between the two parties were supposed to be resolved by the accountants as Mr Ahamed directed in paragraph 8 of his letter dated 27 December 1993… It is common ground that Mr Ahamed eventually admitted in his letter dated 19 April 1995 that he was "defeated" and after that he was released by the parties. As things turned, therefore, his "route map" did not resolve the outstanding disputes. It is therefore now for the English Tribunal to do so.
(6) Mr Berkson recorded in paragraph 62 of Berkson 2013 that if in 2008 Mr Hashwani had made it clear that he wished to keep open the possibility that Mr Ahamed had been an arbitrator, then Mr Jivraj would certainly have wished to ensure that Mr Ahamed's status was resolved before the parties embarked on arguing novel and difficult points of law. In paragraph 63 of Berkson 2013 Mr Berkson recorded that the result of Mr Hashwani's stance was that the 2008 litigation proceeded throughout on the premise that there were only two possible forums for the resolution of the claim which Mr Hashwani wished to make: either the JVA arbitration agreement, if that remained valid (in one form or another), or the court, if it did not. This has not been disputed by Mr Hashwani.
(7) After a hearing on 6 to 8 April 2009 Steel J handed down judgment on 26 June 2009, holding that the JVA arbitration agreement did not constitute unlawful discrimination on any of the grounds relied on by Mr Hashwani. On 16 July 2009 Steel J was asked by Mr Hashwani to give permission to appeal. He refused permission to appeal for two reasons. The first was that there was no realistic prospect of success. The second was that Mr Hashwani's underlying claim was "prima facie time barred rendering any appeal academic".
(8) The Court of Appeal granted permission to appeal on limited grounds. After a hearing on 2 March 2010, the Court of Appeal on 22 June 2010 handed down a judgment holding that Mr Hashwani succeeded to this extent: the JVA qualification requirement was unlawful because it was contrary to anti-discrimination legislation. However the Court of Appeal also held that the unlawful part could not be severed, and the result was that the JVA arbitration agreement itself was void.
(9) Applications from each side for permission to appeal to the Supreme Court were refused by the Court of Appeal. However permission was granted to each side by the Supreme Court on 22 November 2010. On 16 March 2011 the parties agreed upon a statement of facts and issues for the Supreme Court. It stated:
(a) in paragraph 8 that Mr Ahamed;
issued a determination in December 1993 (although he continued to be concerned with further exchanges between the parties until 1995) and then declared himself as "defeated".
(b) also in paragraph 8 that:
There is an issue between Mr Jivraj and Mr Hashwani as to whether Mr Ahamed acted as an arbitrator or as a conciliator. This difference is not material to the present issues.
(c) in paragraph 9 that, following Mr Ahamed's determination, claims by Mr Hashwani in relation to a balance allegedly due to him and by Mr Jivraj of an alleged failure by Mr Hashwani to pay tax liabilities remained unresolved.
(10) After a hearing on 6 and 7 April 2011 the Supreme Court gave judgment on 27 July 2011, rejecting Mr Hashwani's contention that the JVA qualification requirement had become void. The result was that Mr Jivraj's appeal to the Supreme Court succeeded, while Mr Hashwani's appeal failed.
B4.9 From 28 July 2011 onwards
(1) A letter dated 1 August 2011 from Zaiwallas to Hill Dickinson was stated to be written "to see if we can agree costs and also to determine the next step in the Arbitration." Paragraph  of the letter asserted that an amount belonging to Mr Hashwani which Mr Jivraj was holding represented the amount "which Mr Ahamed the Arbitrator had required your client to give back to our client as part of equalisation of capital. …". Paragraph  said that "Mr Ahamed conducted the Arbitration reference over five years and he gave his decision."
(2) In response on 5 August 2011 Hill Dickinson asserted that Mr Hashwani's purported claim was statute barred. They added that they therefore saw no reason to correspond with regard to its merits or otherwise.
(3) Meanwhile on 2 August 2011 Zaiwallas wrote to Clifford Chance, who had acted in the Supreme Court on behalf of the ICAB, asserting that Mr Ahamed as sole arbitrator had given a decision under which Mr Jivraj, for the purpose of equalisation of capital, was required to pay back to Mr Hashwani US$1,412,494. They added that "Mr Jivraj in breach of the Arbitration Agreement did not honour his obligation." Zaiwallas said that the purpose of their letter was to enquire from the ICAB "how they proposed to get Mr Jivraj to honour Mr Ahamed's decision…".
(4) On 25 August 2011 Mr Hashwani's written submissions on costs were lodged in the Supreme Court. They referred to the Pre-Conditions and to the Ahamed arbitration agreement. In paragraph (4) the December 1993 award was described as "what one may call a first partial award on liability, but without determining the quantum of the sum which was to be paid." Paragraph (5) said that following this, "Mr Ahamed intended that the arbitration should in due course be brought to finality". Paragraph (8) said that in April 1995 "Mr Ahamed "admitted defeat" and withdrew from further carrying out his role as arbitrator."
(5) A letter dated 5 October 2011 from Clifford Chance to Zaiwallas noted that the ICAB was not an enforcement body. The letter nevertheless indicated that Mr Hashwani should contact the ICAB with details of what he saw as the matters in dispute with which he wished the ICAB to assist.
(6) In a letter dated 5 October 2011 Zaiwallas stated at paragraph  that Mr Hashwani needed to know "whether or not your client is going to honour his obligation as directed by the sole arbitrator, Mr Ahamed…". After recording that they had obtained specialist leading counsel's advice, they stated at paragraph  that there were two arbitration agreements. The first was the JVA arbitration agreement. The second "was to appoint Mr Ahamed as sole arbitrator to act ex aequo et bono". They added that it was arguable that the second agreement was intended "to supersede/amend the first", and that it was under this agreement that Mr Ahamed proceeded. This question, they said, "really does not matter in the commercial sense because the object of the parties remains the same, to have their claims and disputes decided by arbitration." At paragraph  Zaiwallas said that Mr Ahamed did not complete the reference, having come to a view on liability, but not on quantum. Paragraph  advised that their letter was to be treated as notice to appoint a substitute arbitrator under section 10 of the 1950 Act. They observed that under that section a period of seven clear days was required to elapse before either side could make an application to the court to appoint an arbitrator, and advised that they were prepared to extend that period until close of business on Wednesday 19 October 2011.
(7) In reply on 19 October 2011 Hill Dickinson suggested that Zaiwallas' previous stance that Mr Ahamed assumed the role of a conciliator and could not have acted as arbitrator was no doubt consciously adopted so as to clear the way for Mr Hashwani's attempt to start a fresh arbitration by the appointment of Sir Anthony Colman. What had happened was that Mr Hashwani "has now performed a complete volte face". Hill Dickinson recorded Mr Jivraj's position, asserting first that Mr Ahamed's appointment was personal to him, second that Mr Hashwani's delay was such that the court would not make an appointment even without proof of prejudice (and that if proof of prejudice were necessary Mr Jivraj had plainly been prejudiced by the difficulty of taking up again a dispute which had not progressed since 1994), third that any arbitrator who was appointed would inevitably dismiss the claim for delay under section 13A of the 1950 Act, and fourth because the claim was an abuse of process. The letter added that Mr Jivraj believed that Mr Ahamed was released by the parties in 1994.
(8) In a response the same day Zaiwallas claimed that the only objection by Mr Jivraj in the 2008 litigation was that the arbitrator should meet the JVA qualification requirement. They added that they had now been in touch with Mr Nanji of the ICAB. Paragraph  stated that because Mr Hashwani "wishes to give the Ismaili Community leaders a short opportunity to have his claim against your client resolved" Mr Hashwani would wait for a period of two weeks to receive and consider Mr Nanji's response before making his application to the court.
(9) A complaint dated 24 November 2011 was lodged by Mr Hashwani with the European Commission. It concerned the issue of whether the religious qualification in clause 8 of the JVA was binding. The complaint said that, acting through the instrumentality of the Supreme Court, and its failure to refer the issue to the Court of Justice of the European Union, the United Kingdom was in breach of its obligation to refer under Article 257 of the Treaty on the Functioning of the European Union ("TFEU"). In December 2012, the European Commission notified Mr Hashwani that it had transmitted the complaint to the United Kingdom to be answered.
(10) By email dated 28 March 2012 Mr Nanji advised Mr Hashwani of Mr Jivraj's stance rejecting Mr Hashwani's claim, and that he [Mr Nanji] was not confident that the gap between Mr Jivraj and Mr Hashwani could be bridged.
(11) Mr Hashwani's email of 29 March 2012 to Mr Nanji suggested that "the most appropriate course would be to get Mr Zaher Ahamed to complete the arbitration reference and publish an enforceable arbitration award which he can still do…".
(12) On 9 April 2012 Mr Nanji advised that he did not believe this to be an option: Mr Nanji believed that Mr Ahamed's role had "ended with his determination letter".
(13) In response to an email of 13 April 2012 from Mr Hashwani asking for further guidance from the Aga Khan, Mr Nanji replied that it was impossible to predict whether guidance would be forthcoming, and that in the meantime Mr Hashwani should not prejudice himself if any deadlines were "upcoming from a legal point of view that must be addressed".
(14) In response to a further email of 2 August 2012 from Mr Hashwani indicating that he was awaiting guidance from the Aga Khan, Mr Nanji replied on 4 August 2012 that he had nothing new to report, and that he reiterated his earlier advice "that you not hold back your legal counsel if it would in any way prejudice your legal position".
(15) On 12 March 2013 Mr Hashwani's present claim was issued. On 11 July 2013 Mr Jivraj issued an application to strike out Mr Hashwani's application as an abuse of the court. At a case management conference on 12 July 2013 I ordered that Mr Hashwani should serve a statement of the remedies sought and the grounds relied upon in respect of each such remedy, and that Mr Jivraj should serve an answer addressing those remedies and grounds.
(16) Mr Hashwani's statement of remedies and grounds was served on 2 August 2013. Remedy 3 was described by Mr Hashwani as an order "to appoint new arbitrator to replace Mr Ahamed in the arbitration pursuant to section 25 (2) (a) and/or (3) of the Arbitration Act 1950, appointment to be made in accordance with directions to be given by the Court". The grounds in support of remedy 3 included:
- [3A.2] Mr Ahamed determined that the capital account of the joint venture should be equalized but never made an award as to what sum should be paid to whom and by whom in order to effect the equalization.
- [3A.3] The joint venture company is still extant and needs to be dissolved and a final account reached on the capital account so that the capital returned to the parties.
- [3A.4] The arbitration is still afoot but Mr Ahamed is unwilling to complete it.
- [3A.6] A new arbitrator should be appointed to bring the arbitration to a conclusion and there is no personal reason associated with Mr Ahamed's appointment why such a new arbitrator should not be appointed.
[3B] The Court should in the first instance give directions in relation to the identification of a new arbitrator before making the appointment because there has been difficulty up to now for various reasons in identifying an Ismaili Community arbitrator or arbitrators willing to act despite efforts to identify one or more to act.
(17) Remedy 5 sought by Mr Hashwani was described as an order "pursuant to section 24 (3) of the Arbitration Act 1950 that there be no stay of any legal proceedings to resolve the parties' dispute". The grounds in support of remedy 5 were:
[5A] This remedy will be sought only if Mr Jivraj were to apply for a stay of any legal proceedings which are brought in circumstances in which Remedy 3 is not granted. The grounds on which such relief should be granted are:
- [5A.1] if the remaining issues are not to be resolved in the arbitration, they should be resolved in court;
- [5A.2] the arbitration agreement dated 29 January 1981 was superseded with regard to this dispute by the arbitration agreement pursuant to which Mr Ahamed acted;
- [5A.3] in any event, Mr Jivraj has waived the application of the arbitration agreement dated 29 January 1981;
- [5A.4] in all the circumstances, whether as aforesaid or by virtue of any order granted under section 25 (2) (b) of the Arbitration Act 1950, there is no operative arbitration agreement which prevents legal proceedings.
(18) Mr Jivraj's answer was served on 27 September 2013. The hearing of the present application was subsequently fixed to take place on 6 and 7 October 2014.
(19) On 9 September 2014 Zaiwallas wrote a letter to Bermans. This letter referred to the forthcoming hearing of Mr Hashwani's application, and continued:
 We have very recently learnt that Mr Zaher Ahamed has passed away. It has therefore become necessary to appoint a replacement arbitrator in place of Mr Ahamed. For this purpose we request you to concur with the appointment of one of the following retired English Judges as a sole arbitrator to fill the vacancy created by Mr Ahamed passing away. …
 The purpose of this letter is to give your client formal notice under Section 10(b) to concur in the appointment of an arbitrator to replace Mr Ahamed. We must give you further notice that if your client fails to concur in the appointment of a replacement Arbitrator within 7 days of the receipt of this notice, our client will apply to the High Court to appoint an arbitrator under the terms of the Arbitration Act 1950.
(20) Mr Jivraj declined to concur with any appointment of an arbitrator to replace Mr Ahamed. The hearing of the present application accordingly proceeded on 6 and 7 October 2014.
C. Mr Jivraj's strike-out application
… Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.
[Mr Hashwani] has spent 5 years from September 2008 (and continuing) litigating against [Mr Jivraj] on the footing that … the process before Mr Ahamed was not an arbitration and that, in any event, it was all over. This litigation included an appeal to the Court of Appeal and to the Supreme Court. It is an abuse of process for [Mr Hashwani] now to commence a second claim on the footing that Mr Ahamed was, after all, an arbitrator, and that the arbitration before him is still on foot.
(a) When [Mr Hashwani] sought to revive his dispute with [Mr Jivraj] in July 2008, he did so by claiming to appoint an arbitrator under the arbitration agreement contained in the … JVA …;
(b) [Mr Jivraj] immediately responded, by his solicitors, that there had already been an arbitration before Mr Ahamed and that [Mr Hashwani] could not start a fresh arbitration of the same subject matter … ;
(c) [Mr Hashwani] met that objection (through his solicitors) by asserting that Mr Ahamed had not acted as an arbitrator and followed it up by confirming that Mr Ahamed had long since been released by the parties … ;
(e) It is only after having failed in the Supreme Court on his contention that the arbitration agreement in the … JVA should be re-written so as to remove the requirement for Ismaili arbitrators, that [Mr Hashwani] has chosen to adopt the point which he spurned in 2008, namely that Mr Ahamed was appointed as an arbitrator. Furthermore, [Mr Hashwani] now positively asserts (in his grounds under remedy 5) that the appointment of Mr Ahamed under [the Ahamed] arbitration agreement in 1990 superseded the [JVA] arbitration agreement, so that the subject matter of the previous litigation becomes moot;
(1) Zaiwallas' letter dated 31 July 2008 (subparagraph (a): purported appointment of Sir Anthony Colman under the JVA);
(2) Hill Dickinson's fax of 8 August 2008 (subparagraph (b): response by Mr Jivraj that there had already been an arbitration before Mr Ahamed and that Mr Hashwani could not start a fresh arbitration of the same subject matter);
(3) Ziawalla & Co's fax of 14 August 2008 (subparagraph (c): assertion by Mr Hashwani that Mr Ahamed had not acted as an arbitrator);
(4) paragraph 12 of Zaiwalla 2008 (subparagraph (c): assertion by Mr Hashwani that Mr Ahamed had long since been released);
(5) Zaiwallas' letter of 1 August 2011 (subparagraph (e): an assertion that Mr Ahamed was appointed as an arbitrator is first advanced after Mr Hashwani fails in the Supreme Court); and
(6) Mr Hashwani's statement of remedies and grounds dated 2 August 2013 (subparagraph (e): Mr Hashwani now accepts that the appointment of Mr Ahamed under a fresh arbitration agreement in 1990 superseded the 1981 arbitration agreement, so that the subject matter of the previous litigation becomes moot).
(1) Mr Jivraj is plainly being vexed twice in the same matter, namely Mr Hashwani's attempt to continue what he sees as the unfinished business of the process before Mr Ahamed. Equally the court's resources are being engaged a second time in the same matter;
(2) The claim that Mr Ahamed was an arbitrator and that his arbitration was still alive should plainly have been brought forward in the first proceedings, at the least as an alternative, so that both Mr Jivraj and the court had the opportunity to assess the attempt to invoke the [JVA] arbitration agreement in the light of an alternative application under the [Ahamed] arbitration agreement. Instead, Mr Hashwani created a dispute over the very nature of the [Ahamed arbitration] agreement and thereby forced Mr Jivraj to join issue over the validity of the [JVA arbitration] agreement;
(3) There is an additional element here: … having asked Mr Ahamed to resume duty as an arbitrator in 2008 and been refused, Mr Hashwani then took a deliberate tactical decision to deny that Mr Ahamed had ever been an arbitrator. … Mr Zaiwalla [in Zaiwalla 2008] was not simply giving evidence as to a fact as to which he might, or might not, have been mistaken. He was giving notice of the position which his client adopted in response to the point promptly made on behalf of Mr Jivraj that there could not be a new arbitration because there had already been one. Indeed, it is clear from Mr Zaiwalla's letter of 31 July 2008 that the point had already been anticipated and the chosen line was that Mr Ahamed had not been an arbitrator. By taking that line, Mr Hashwani forced Mr Jivraj through the stress, cost and expense of three levels of hearing, and disputed costs hearings after that. It is not an acceptable response for Mr Hashwani now to spin on his heel, declare all that to have been a mistake, and start again;
(4) There is a public interest engaged as well: Mr Hashwani occupied a great deal of court time, threatened enormous disruption to the English arbitration world and attracted three interveners in the Supreme Court. He has now declared that the whole proceedings were moot because the arbitration agreement under which he was seeking to make an appointment had been superseded 18 years previously. That is a remarkable state of affairs;
(5) In the circumstances, the conclusion that the present application constitutes harassment of Mr Jivraj is unavoidable.
As things turned, therefore, his [Mr Ahamed's] 'route map' did not resolve the outstanding disputes.
D. Has the arbitration ended?
D1. Ending the arbitration: Mr Jivraj's contentions
The concept of the implied abandonment of a contract as a result of the conduct of the parties to it is well-established in law: see Chitty on Contracts 23rd ed., vol. 1, par. 1231, and cases there cited. Where A seeks to prove that he and B have abandoned a contract in this way, there are two ways in which A can put his case. The first way is by showing that the conduct of each party, as evinced to the other party and acted on by him, leads necessarily to the inference of an implied agreement between them to abandon the contract. The second method is by showing that the conduct of B, as evinced towards A, has been such as to lead A reasonably to believe that B has abandoned the contract, even though it has not in fact been B's intention to do so, and that A has significantly altered his position in reliance on that belief. The first method involves actual abandonment by both A and B. The second method involves the creation by B of a situation in which he is estopped from asserting, as against A, that he, B, has not abandoned the contract: Pearl Mill Co. Ltd. v Ivy Tannery Co. Ltd.,  1 K.B. 78.
D2. A final award issued on 17 January 1994
(1) An arbitration comes to an end on the publication of an avowed final award.
(2) An arbitrator has power under section 17 to correct in an award any clerical mistake or error arising from any accidental slip or omission.
(3) The court has power under sections 22 and 23 to remit an award or to set it aside.
(4) Subject to the exercise of those powers, an award is not the less final, and effective in bringing the arbitration to an end, because it fails to deal with a claim presented or because it is uncertain or ambiguous in effect or not in proper form.
(5) It is inherent in the scheme of the 1950 Act that a failure by a tribunal to deal with all the issues, or production by a tribunal of an award which is ambiguous or uncertain or not in proper form, are matters which may lead to the court remitting or setting aside the award, but an application for any such relief must be made promptly, and it is accordingly not possible to reconcile with this scheme any theory that an arbitrator retains an indefinite jurisdiction to add to or correct the award without any intervention by the court.
 I would request both of you to reflect further on this issue…
 In the meantime, I have no reason to delay the finalisation and publication of the award. And I intend to do so on January 17 1994. …
2. Pursuant to the Agreement I requested both parties to make submissions on all matters outstanding and I have received and considered the written and oral submissions of both parties on the issues referred to in the Schedule and I have determined as set out in the Schedule.
3. Such determinations take effect only as between me and yourselves. It is for you to effect the implementation of these determinations in a manner consistent with the decisions and in accordance with all applicable legal requirements. In making my decisions, I have not considered any impact (whether in respect of taxation or any other matters) on either of you or any other person of such decisions and you are to recognise that such matters are for each of you to consider and deal with and not me.
D3. The period after 17 January 1994
D3.1 18 January 1994 to 31 May 1995
(1) The February 1994 tax liability and timetable letter: paragraph 5 makes a clear distinction between the December 1993 award and its implementation, and thus is consistent with my analysis. At item 32 of his reading list, Mr Hashwani acknowledged that his case as to the giving of "directions" by Mr Ahamed at later stages involved a contention that Mr Ahamed thereby reversed what he had said in paragraph 5 of this letter.
(2) The April 1994 clarification letter: this letter was Mr Ahamed's response to the March 1994 Jivraj letter and the March 1994 Hashwani fax. Mr Jivraj said he had decided to hand over Jivji BV and Jivji NV to Mr Hashwani, but on the basis (see paragraph  of the March 1994 Jivraj letter) that Jivji BV's only remaining subsidiary would not be transferred. By contrast, paragraphs  and  of the March 1994 Hashwani fax made an assertion ("the abeyance assertion") that Jivji BV had neither sold nor transferred NI Canada and Rushlake USA: that matter, said Mr Hashwani, had been "kept in abeyance". In paragraph  Mr Hashwani suggested that Stoy Hayward be instructed to adjust the accounts to reflect "the settlement of this issue". However in paragraph  of the April 1994 clarification letter Mr Ahamed expressed views inconsistent with the abeyance assertion. The April 1994 clarification letter contained no indication that Mr Ahamed was willing to give any direction, additional to what was said in the December 1993 award, as to what Stoy Hayward should be instructed to do. Paragraphs  and  were consistent with my analysis of the December 1993 award and with what had been said in paragraph  of the February 1994 tax liability and timetable letter. At the end of paragraph  of the April 1994 clarification letter Mr Ahamed made a request ("the timing request") to be informed of the proposed timing of the transfer of the two Jivji companies, "so that the arbitration could be formally concluded." I return to this request below.
(3) The November 1994 expectation letter: consistently with my analysis of the December 1993 award, this letter indicated in paragraph  that final accounts from Stoy Hayward would "permit calculations of who is to receive what in accordance with what I have determined". What Mr Ahamed then said was not that there would be any further order, but simply, "I expect that the parties will pay the appropriate amount." Paragraph  explained that he was arranging to send a deed of arbitrator's release for execution by the parties along with the accounts in connection with the arbitration. This paragraph made it clear that Mr Ahamed believed that nothing substantive remained for him to do: once the deeds of release and the accounts were dealt with, "this will settle all outstanding matters before me".
(4) The December 1994 factual position and responsibility letter: Mr Hashwani's reading list relied upon this as confirming that Mr Ahamed had not at this stage been formally released by the parties as arbitrator. That is correct. It nevertheless remained the case (see paragraph  of the letter) that Mr Ahamed sought the completion and return of the forms of release, and thus considered that nothing substantive remained for him to do. Paragraphs  and  of the letter are consistent with my analysis of the December 1993 award and with what was said in paragraph  of the February 1994 tax liability and timescale letter.
(5) The April 1995 defeat letter: Mr Hashwani's reading list said that Mr Ahamed complained in this letter that Mr Jivraj had not wound up the joint venture company. As appears from paragraph , however, what Mr Ahamed said was that he was profoundly disappointed with both parties. In paragraph  he referred to a request that he make himself available to give clarification on what was said in the award about the tax liabilities of the Jivji companies. This is consistent with my analysis of numbered paragraph 4 of the December 1993 award. In the event, however, no such request was made. In paragraphs  to  Mr Ahamed explains why it is that he must "finally admit defeat". In paragraph  he recorded that he had expected the parties to settle "the only outstanding point" (i.e. whether or not there would be a higher corporate tier acquisition) at the same time as taking the steps necessary to ensure that equalisation payments were duly made to the appropriate party. As already noted, paragraph  expressed his profound disappointment with both parties. Paragraph  commented, in effect, that by not doing what he had expected the parties had caused "a great deal of concern, distress and embarrassment to all concerned". He added that he had "exhausted all my patience, tact, powers of persuasion and skill". In paragraph  Mr Ahamed concluded that either the parties did not wish the arbitration to be brought to a satisfactory conclusion, or they wished for it to be concluded only on terms acceptable to themselves. Mr Ahamed said that the latter was not permitted by his mandate, which he described as "to complete my assignment or else to report that I have failed to resolve the dispute." The inference I draw is that Mr Ahamed used his patience, tact, powers of persuasion and skill to help the parties to implement his award because he considered that his mandate required him to report, if it be the case, that his work had "failed to resolve the dispute".
D3.2 First fallback: release in 1995
D3.3 Period from 1 June 1995 to 31 January 1998
(1) In the August 1995 disengagement letter Mr Hashwani asked Mr Ahamed to give an "appropriate direction for payment". However in Mr Ahamed's August 1995 recommendation letter Mr Ahamed did not do this. Instead in paragraph  he said that the parties should attend to the implementation of equalisation payments, referring back in that regard to his April 1995 defeat letter. In paragraph  he recommended that the two parties meet and settle the issue as to the equalisation payment in accordance with the June 1995 MoA "and any other arrangements you may have arrived at". This appears to me to be consistent with my analysis of the December 1993 award, which treated the outcome of the proposal for a higher corporate tier acquisition as something which was to be taken account of when implementing the award, but not as something which fell within the scope of the arbitration. I do not consider that anything in the August 1995 recommendation letter was inconsistent with what Mr Ahamed had said in the February 1994 tax liability and timetable letter. Item 28 in Mr Hashwani's reading list claimed that in the August 1995 recommendation letter Mr Ahamed had directed the equalisation payment to be made taking into account the June 1995 MoA: however, in my view, it is clear that there was no direction, but merely a recommendation.
(2) The September 1995 expectation letter: item 29 in Mr Hashwani's reading list claimed that this contained "directions" by Mr Ahamed. This is not correct. As appears from paragraph  of the September 1995 expectation letter, what Mr Ahamed said was that in the absence of persuasive representations from Mr Jivraj, "I expect" Mr Jivraj to clear the imbalance. Here, too, it appears to me that Mr Ahamed remained consistent to his stance in the December 1993 award, confirmed in the February 1994 tax liability and timetable letter, that implementation was a matter for the parties. I accept, however, that at this stage Mr Ahamed had, for the first time, shown a willingness to say something about what he expected should happen in precise financial terms as a result of implementation of his award.
(3) The October 1995 'you must convince me' letter: by saying in paragraph  that the "matter must now be settled forthwith and either payment must be made or you must convince me to the contrary…" Mr Ahamed went beyond the language of expectation. In this letter Mr Ahamed was making a conditional requirement of Mr Jivraj as to the implementation of the December 1993 award. In doing this it seems to me that Mr Ahamed acted inconsistently with the December 1993 award and with the stance that he had taken in subsequent correspondence.
(4) Mr Jivraj's October 1995 personal points fax at paragraph (iii) noted this inconsistency. What then followed was Mr Ahamed's October 1995 'should make ... payment now' letter. This did not expressly address the question of inconsistency. However, it is notable that Mr Ahamed no longer used the word "must". He confined himself to saying, in paragraph , that assuming certain circumstances to be the case, then Mr Jivraj "should" make the equalisation payment without further delay. Item 30 in Mr Hashwani's reading list asserted that in this regard Mr Ahamed made "an order for payment by Mr Jivraj to Mr Hashwani of US$1,366,020". On its face, however, the October 1995 'should make ... payment now' letter contains no order.
(5) The December 1995 PHPI winding up letter: item 31 in Mr Hashwani's reading list described this as a letter in which Mr Ahamed rejected further submissions from Mr Jivraj, determined that the June 1995 MoA must be taken into account, and directed "Mr Jivraj to wind up the joint venture company immediately…". In his oral submissions Mr Brindle described the letter as one in which Mr Ahamed "still has his sleeves rolled up". It seems to me that it was not until the October 1995 settle forthwith letter that Mr Ahamed indicated any willingness to roll up his sleeves in the sense of imposing any obligation upon Mr Jivraj by way of implementation of the December 1993 award. An approach in which Mr Ahamed's sleeves are not rolled up in that way is then seen in the October 1995 'should make ... payment now' letter, and in the December 1995 PHPI winding up letter. Paragraph  contains a request, not an order, for the immediate winding up of PHPI. In paragraph  the letter indicates a willingness "to suspend the requirement for equalisation at this stage". This acknowledges that Mr Ahamed had already made a requirement for equalisation. No explanation is given by Mr Ahamed as to the source of any power on his part to suspend that requirement. It is not asserted by Mr Ahamed, however, that he has any power to make a further substantive determination.
(6) The January 1996 'cannot get involved' fax: at this stage Mr Ahamed no longer had his sleeves rolled up. In paragraph  he reverted to the stance he had adopted in the December 1993 award and in subsequent correspondence: "I have already pointed out to the parties before now that the Arbitrator cannot get involved in the implementation and I do not intend to do so."
(7) The February 1996 PHPI and clarification fax: Mr Brindle submitted that in this fax Mr Ahamed was still pressing for dissolution of PHPI. It seems to me that in paragraph  Mr Ahamed was asking Mr Jivraj for an update. In paragraphs  and  Mr Ahamed clarified that in certain respects "…my understanding is not the same as that set out in your fax…". Taken as a whole this fax is not a fax in which Mr Ahamed's sleeves were rolled up in the way that they had been, briefly, at the time of the October 1995 settle forthwith letter. The February 1996 PHPI and clarification fax is in my view entirely consistent with my analysis of the stance taken in the December 1993 award and in subsequent correspondence.
(8) The July 1996 implementation for the parties fax: this expressly affirmed previous observations that implementation was "a matter for the parties to effect".
(9) The October 1996 proposed indemnity letter: paragraph  described the proposed indemnity as "an implementation matter". Consistently with the December 1993 award and subsequent correspondence, Mr Ahamed said that this was something for Mr Hashwani and Mr Jivraj to agree between themselves. At paragraph  Mr Ahamed looked forward to hearing from the parties that the dissolution of the joint venture companies had been completed. Here, as it seems to me, Mr Ahamed is taking the same stance as that which he took in the April 1995 defeat letter: while implementation was for the parties, Mr Ahamed would not feel able to say that his work had resolved the dispute until the parties had indeed implemented the December 1993 award.
(10) Mr Hashwani's October 1996 request for freedom letter: in paragraph  Mr Hashwani, as it seems to me, identified the nub of the problem. The December 1993 award had stated that implementation was a matter for the parties. Mr Hashwani's complaint was that that was an unsatisfactory approach. Mr Hashwani no doubt thought that making such a complaint to Mr Ahamed might persuade him to change his mind. If he were to change his mind, and make an order requiring payment, then it might well be that pressure from the Community would have been such that Mr Jivraj complied with it. Paragraph  was an emphatic statement by Mr Hashwani that what he required was an order from Mr Ahamed. Paragraph  addressed the position if equalisation of the capital accounts could not be resolved by the end of October 1996. In that event Mr Hashwani asked that Mr Ahamed should revert to the Aga Khan, and if appropriate obtain confirmation that Mr Hashwani was free to pursue the matter in a court of law.
(11) Mr Jivraj's October 1996 'I cannot stop you' fax: after reiterating points made earlier, paragraph  asserted that he had placed funds with Mr Hashwani as an agent so that Mr Hashwani could pay taxes due in 1989 as a result of sale of the North American operating companies. In paragraph  Mr Jivraj said that if Mr Hashwani commenced litigation, "then I cannot stop you". In paragraph  Mr Jivraj disputed Mr Hashwani's assertion that the arbitration had failed. On that, Mr Jivraj said that Mr Ahamed had resolved "all the issues quite successfully…". Mr Jivraj concluded that dissolution of the joint venture companies, which he described as the "last outstanding issue", could not be done simply because Mr Hashwani did not want to give an indemnity nor did he want to pay the taxes.
(12) Mr Hashwani's November 1996 guidance and pressure fax: in paragraph  Mr Hashwani complained at Mr Jivraj's "lame excuses", and unwillingness to provide a draft of the indemnity that would be acceptable to him. Paragraph  began by saying that Mr Hashwani could see no option "other than to request the Community to give me a free hand to recover the money… through the courts." Later in the paragraph, however, Mr Hashwani asked Mr Ahamed to take guidance from the Aga Khan and to put pressure on Mr Jivraj "to pay me my funds". Mr Hashwani added that assistance from Mr Ahamed was imperative in order to obtain the Aga Khan's intervention and guidance, which Mr Hashwani believed was the only way in which the matter could be settled out of court.
(13) The November 1996 facilitation fax: in paragraph [C] Mr Ahamed said that he wished to see a particular procedure followed by the parties in order to agree the text of an indemnity, adding that if at the end of the procedure a text had not been agreed, then he would review the position with a view to proposing a way forward. Paragraph [D] asked the parties to implement the procedure without delay and in a constructive manner. In paragraph [E] Mr Ahamed claimed that he had endeavoured to work within the framework of the Ahamed arbitration agreement, and considered that there was no warrant for him to go outside that agreement in order to bring the matter to finality. The answer (at least so far as the text of an indemnity was concerned) lay in the parties either reaching mutual agreement or, as suggested in Mr Ahamed's proposed procedure, accepting the judgment of a competent third party.
(14) The December 1996 third party letter: in paragraph  Mr Ahamed said that in order to bring matters to "a finality" the parties should either choose an independent third party to settle the indemnity, or provide names from which Mr Ahamed would select one or possibly two such persons.
(15) The June 1997 'arbitration has become a joke' letter: in paragraph  Mr Hashwani complained to Mr Ahamed that fundamental issues had been ignored. He added in paragraph  that with "such issues left open for all these years, this arbitration has become a joke…". In paragraph  Mr Hashwani expressed anger and disappointment at Mr Ahamed's having "not taken the decisive actions required of you." Mr Hashwani added that if Mr Ahamed were "unable to make the hard decisions, please let me know, so that I can take up this matter directly with the appropriate Authority when I am in Europe next month."
(16) The July 1997 arbitration reference letter: in paragraphs  and  Mr Ahamed envisaged that Mr Aaronson QC would settle the terms of the indemnity, and sought comments on a letter to be written to him "on behalf of the arbitration and not on behalf of the parties". In the remainder of the letter Mr Ahamed sought confirmations from the parties in relation to three aspects of the procedure.
(17) Mr Hashwani's July 1997 top priority fax: this fax did not provide the confirmations which Mr Ahamed had sought. Instead, the approach taken by Mr Hashwani was simply to repeat things which he had said previously. What he required was an immediate order that Mr Jivraj pay the appropriate amount into PHPI's bank account to equalise the partners' capital account. This, said Mr Hashwani, "should be given top priority…".
(18) The evidence before me does not disclose any reply by Mr Ahamed to Mr Hashwani's July 1997 top priority fax. As described in Annex 2, Mr Hashwani in August 1997 took the matter to Dr Sachedina complaining that Mr Ahamed had allowed the matter to drag on and that basic principles of justice had been violated.
(19) The January 1998 deadline letter: Mr Hashwani repeated his October 1996 requests that Mr Ahamed either obtain guidance from the Aga Khan ordering Mr Jivraj to pay the money, or obtain permission to allow Mr Hashwani to take the matter to court. Mr Hashwani concluded by saying that if he did not hear from Mr Ahamed by 15 January 1998, then he (Mr Hashwani) would approach the Aga Khan directly and "request intervention to settle this matter once and for all".
(20) Mr Ahamed appears, on the evidence before me, to have adopted the same approach to the January 1998 deadline letter as he did to the July 1997 top priority fax: he simply did not reply. Mr Jivraj, if he was aware of these two items of correspondence, appears to have taken the same course.
D3.4 Second fallback: correspondence amounting to abandonment
D3.5 Period from 1 February 1998 to 31 December 2007
(1) The Community leadership in July 1998 gave Mr Hashwani guidance to try again to resolve matters with Mr Jivraj. Mr Hashwani accordingly wrote to Mr Jivraj proposing an attempt at starting a new relationship, and on 23 August 1998 Mr Jivraj replied agreeing to the proposal. As described in Annex 2, Mr Hashwani's account in paragraphs 108 and 109 of Hashwani 2013 identifies as the next stage that a meeting took place in London, but nothing came of it, and a request that Dr Sachedina intervene was made.
(2) The October 1998 end to my misery letter: this was the request to Dr Sachedina to intervene. It gave an account which amounted to deadlock. As to what should now happen, Mr Hashwani, asking for "an end to this misery", said to Dr Sachedina, "I leave this matter entirely to you…", adding, "if you feel this [an end to his misery] is not going to be possible, I would request to be released by Imam."
(3) The September 1999 Naaz Holdings PHPI letter, written in connection with PHPI, asserted that payments by Mr Hashwani for the North American operating companies reflected a deduction for taxes that would be due as a result of the transfers. It made a demand for the amounts deducted for taxes. If such taxes had been paid it requested that full details be provided within 14 days.
(4) Mr Hashwani's September 1999 'kindly search your soul' letter: paragraph  referred to the joint venture dispute which had arisen and "the ensuing dissolution arrangements, conciliation and then arbitration…". In paragraph  Mr Hashwani said that more than ten years had elapsed and "the money owed to me has been wrongly withheld by you". Paragraph  stated "I once again request you to kindly search your soul and pay me the money owed…".
(5) GSC's June 2000 $4m demand letter was written to Mr Hafner, Hira's lawyer. It referred to the September 1999 Naaz Holdings PHPI letter, and asserted that the amount "wrongly deducted from the payments made in respect of" acquisition of the North American operating companies amounted to $4m. This led to a reply which simply said that the allegation was refuted in its entirety and that the demands were totally without merit.
(6) GSC's October 2000 'you will have no objection' letter observed that there had been no explanation for the refutation of the claim. It was in this context that paragraph  suggested that "you will have no objection" to provision of "full details of the transactions and the joint venture to the Pakistani authorities who have requested details of Sadrubhai Hashwani's dealings with our client." Paragraph 2 concluded by reiterating what was said in GSC's 2000 $4m demand letter.
(7) Zaiwallas' October 2000 'outrageous professional conduct' letter: paragraphs ,  and  condemned the October 2000 GSC you will have no objection letter in round terms. Paragraph 3 added a reminder of the "duty of confidentiality under the English Arbitration Law which duty requires your clients to maintain strict confidentiality…".
(8) GSC's October 2000 'will consider the matter further' fax: paragraphs  to  responded with GSC's condemnation of what was said in the October 2000 Zaiwallas outrageous conduct letter. Paragraph  noted that the confidentiality obligation was not absolute, claimed that what they had asked was whether there was an objection to disclosure, on which they had now received the answer. It added that if the authorities pressed for disclosure of information, their client would consider the matter further "and will, of course, bear its obligations under the arbitration process in mind".
(9) Zaiwallas responded on the same day, and GSC in turn sent a reply on 23 October 2000. Neither of these communications made any further reference to arbitration.
(10) Throughout this period neither party appears to have had any communication with Mr Ahamed. As described in Annex 2, paragraphs 116 and 117 of Hashwani 2013 gave an account in which because of what he described as "Mr Jivraj's threat", "I felt that I could not pursue further steps for the time being to recover the balance of the capital account due to me…". Paragraphs 16 to 19 of Zaiwalla 2008 said in this regard that in the years since 2000 Mr Hashwani "had hoped and expected that the Ismaili hierarchy, which knew of the outcome thus far… would be able to use its good officers and exert its influence" over Mr Jivraj and bring an end to the matter. Paragraph 19 added that Mr Hashwani believed that Mr Jivraj's actions indicated "that he has no intention to respect the Community representative, Mr Ahamed's recommendation…", and that this conduct had insulted the Community leadership which "no longer wishes to be involved in resolving this dispute".
(11) Mr Hashwani added in paragraph 117 of Hashwani 2013 that on 5 June 2001 he wrote to Dr Sachedina "asking for his help and advice to get Mr Jivraj to repay the balance of the capital account", but that nothing happened.
D3.6 Third fallback: ten years of inactivity
D3.7 January 2008 onwards
(1) Mr Hashwani states in paragraph 120 of Hashwani 2013 that it was "when the Military Government in Pakistan was dissolved" that he felt that he could "pursue the matter again". The chronology prepared by Mr Hashwani for the present proceedings explains that elections took place in March 2008.
(2) At paragraph 121 of Hashwani 2013 Mr Hashwani states that because Mr Ahamed had been selected by the Community leadership he [Mr Hashwani] "still felt obliged… to go back to him, if he was willing to continue to act".
(3) In the same paragraph Mr Hashwani gives an account of what happened when Zaiwallas contacted Mr Ahamed in 2008, namely that he was no longer practising with his accountancy firm, and that he said he was in ill health and was unable, or unwilling, to deal with the matter by acting as arbitrator.
(4) Mr Zaiwalla deals with this in more detail in paragraph 12 of Zaiwalla 2013 and paragraph 20 of Zaiwalla 2014. In these passages Mr Zaiwalla confirms that Mr Ahamed said he did not want to get involved in the matter because he was not in good health, adding that he was "sick and tired" of the matter and that he was no longer active.
(5) Mr Zaiwalla adds in paragraph 21 of Zaiwalla 2014 that at a stage when Mr Zaiwalla and Mr Baldry were planning to travel to New York to see Mr Ahamed, Mr Hashwani informed Mr Zaiwalla that he had spoken with Mr Ahamed and that Mr Ahamed was not prepared to meet them.
(6) Notice of the 2008 purported appointment was given on 31 July 2008. As set out in section B4.7 above, paragraph  of Zaiwallas' letter of that date stated that Mr Ahamed had acted as conciliator.
(7) Relevant events from 1 August 2008 onwards are sufficiently summarised in sections B4.8 and B4.9 above.
D3.8 Mr Jivraj's remaining fallback positions
D4. Conclusion: no extant arbitration
E. Delay on the part of Mr Hashwani
E1. Delay: introduction
E2. Delay: Mr Hashwani's suggested knockout blows
E2.1 Delay: general aspects of the suggested knockout blows
E2.2 Knockout blow 1: Mr Jivraj's failure to do what Mr Hashwani wanted
E2.3 Knockout blow 2: PHPI's continued existence
E3. Delay: analysis by periods
E3.1 Delay: general aspects of analysis by periods
E3.2 Delay: 17 January 1994 to mid 2000
E3.3 Mid 2000 onwards
E3.4 Delay: attempts to blame Mr Jivraj and Mr Ahamed
E3.5 Delay: considerations of fairness
… stale claims are an unfair burden and Mr Jivraj, like anybody else, should not be vexed with a claim which is at least 17 years old.
E4. Delay: conclusion
F. An intention that a vacancy is not to be supplied?
… the arbitration agreement does not show that it was intended that the vacancy should not be supplied …
(1) The parties agreed not to refer their disputes to any other person or body and to act within the context of the Jamat;
(2) The arbitration was not to be a formal arbitration;
(3) Mr Ahamed was to decide on the basis of what he considered to be just and equitable;
(4) Mr Ahamed was not obliged to give reasons;
(5) Appeals were excluded;
(6) Mr Ahamed was entitled not to pass to one party all materials received from the other.
G. Ability now to resolve disputes fairly?
84. A fair investigation of these matters could not now be undertaken. I have pointed out above that definitive signed copies of even key documents such as the Pre Conditions and Mr Ahamed's appointment do not appear to be available. Mr Jivraj has not, as yet, instigated any search for contemporary documents, but it is almost certain that, given the passage of time, documents will be missing and faxes will have faded to illegibility. The files of the professional advisers engaged on both sides are almost bound to have been destroyed. As for memories, Mr Jivraj is still sharp, although largely retired, at 80 years old, but his recollection of events 20 and more years ago has faded over the years. In addition, while some of those involved, including Naushad Jivraj, remain active, several of Mr Jivraj's professional advisers from that time have died or retired. It is not realistic to think that a fair investigation of these matters could now be carried out and nor would it be proportionate to a claim for US$1.3m to try.
(1) at paragraph 60, that Mr Jivraj appears to have an excellent memory, that he instructed accountants at the time and did not dispute their figures, and that in any event new accountants can deal with figures; and
(2) at paragraph 62, that the decision in the December 1993 award that capital accounts must be equalised was sufficiently reasoned, and that the later correspondence gives reasons for what are said to have been "decisions" adverse to Mr Jivraj.
61.1 The question of what disputes remain yet to be dealt with is a matter for the arbitrator, not for the Court. It would be for the arbitrator to decide what claims could be made.
61.2 So far as Mr Ahamed had already made an Award and determinations, the parties are bound by them, and by virtue of the terms of both the Pre Conditions Agreement and the Ahamed arbitration agreement, bound to carry them out.
61.3 Mr Ahamed would not be able to raise his clause 4 (c) adjustment claim, because it would be a new claim – new claims were ruled out by Mr Ahamed and precluded by clause 3 of both the Pre Conditions Agreement and of the Ahamed arbitration agreement – and was not on Mr Ahamed's List of Issues to be dealt with.
61.4 In any event, Mr Ahamed himself rejected the claim when Mr Jivraj put it forward in 1995 … . In 1995, Mr Ahamed also rejected Mr Jivraj's other tax point that there was some potential tax liability that needed to be taken into account in computing the capital account equalization payment … .
61.5 As Mr Zaiwalla points out … Mr Jivraj dots around from time to time in his correspondence or submissions as to which tax point he is running, and changing claims from time to time, but each of the two of Mr Jivraj's tax related claims are equally unmeritorious.
H. The position if no appointment is made
71. If the Court does not make the appointment, the question is: how is the joint venture to be terminated, the capital account settled and the PHPI to be wound up? It would be extremely unfortunate if this litigation did not dispose holistically with this issue.
72. Both parties are agreed that the ad hoc agreements superseded and replaced the clause 8 arrangements so far as the parties' disputes concerning termination issues are concerned.
73. For these reasons, Mr Hashwani submits that, if the Court does not fill the vacancy in the ad hoc arbitration, the parties have no obligation to arbitrate under clause 8 of the joint venture agreement (in relation to which Mr Hashwani has in any event not been able to find an arbitrator meeting the Ismaili qualification in that clause who is willing to act and Mr Jivraj himself has failed and refused to supply any names.)
74. It would be extremely unfortunate for this litigation not to decide what courses are open to bring the matter to a conclusion and for Mr Hashwani to commence proceedings against Mr Jivraj under the joint venture agreement in England, only to be met with an application for a stay on the grounds that the matters are to be referred to arbitration.
75. Unless therefore the position is agreed by Mr Jivraj (Mr Jivraj makes some traction in this direction at Bundle 2 page 584 para 17 but does not go the whole way), the Court is invited to determine that, upon it deciding not to fill the vacancy left by Mr Ahamed's unfortunate death, it is open to Mr Hashwani to bring proceedings in Court to bring the matter to conclusion, subject, of course, to any defences that may available to Mr Jivraj (for example, which is denied, Limitation), but that no stay under the Arbitration Act would be available. The Court is asked so to declare.